The ICAC, the OPI and the Ombudsman — the changing landscape

28 September 2021

The ICAC, the OPI and the Ombudsman – the changing landscape

There is no doubt that 2021 has proven to be a year of constant and significant law reform and late last week, Parliament did not disappoint.  Continuing this trend, significant changes are proposed to the role of the ICAC, the OPI and the Ombudsman and the manner in which they operate.

Generally, the legislative process is a slow one. However, the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 (“the Amendment Act”) progressed through Parliament particularly quickly, with the Bill having been introduced into the Legislative Council in late August, came to vote in the Legislative Council last Wednesday and by Thursday evening, it had passed Parliament altogether.

Since Thursday, the Amendment Act has been the subject of significant media scrutiny, with more to likely follow given the dilution of ICAC’s powers. Notwithstanding, the question remains – what does this mean for local government?

This is the first article in Kelledy Jones Lawyers’ series in which we analyse the new Act and its impact on local government.  This article provides an overview of key features, with further detail to follow, providing our local government clients with timely guidance and support in these times of rapid legislative change.

·   Commencement

The Amendment Act will come into operation in two (2) stages.  Section 59 of the Act, which creates a new Inspector responsible for the oversight of the ICAC and OPI (replacing the current reviewer in the current Independent Commissioner Against Corruption Act 2021 (“the ICAC Act”) is able to be proclaimed separately from the balance of the Act.

No proclamation date has been set as yet, however, Hansard records of debate in the Legislative Council demonstrate a Parliamentary intent for the Act to commence operation in 2022.

·   ICAC

The Amendment Act creates an Independent Commission Against Corruption as well as retaining the Independent Commissioner Against Corruption.  The Commissioner’s role is to be the principal officer for the Commission.  The Commissioner will be appointed by the Governor.  The Commission is established as a body corporate, rather than an appointed board or similar entity.  The Commissioner’s ability to investigate complaints and reports is limited to corruption and is subject to the direction of the Commission and their ability to directly issue prosecution briefs to the Director of Public Prosecutions is curtailed.

The definition of an inquiry agency is also expanded beyond the ICAC and the Ombudsman and will also include the Judicial Conduct Commissioner. This will allow referrals to be made to the Judicial Conduct Commissioner to receive and deal with complaints made about the conduct of serving judicial officers.

·   OPI

The Office for Public Integrity will continue in existence, but with a newly created statutory role of Director of the OPI. With its own Director, the OPI will not be subject to the oversight of or management from the Commissioner, as is the current position.

The OPI will retain its role in receiving and assessing complaints about public administration from members of the public. It will also continue to receive, assess and refer reports about corruption, misconduct and maladministration to inquiry agencies, public authorities and public officers.

The Director of the OPI will be required to set directions and guidelines for complaints and reporting procedures, similar to the role the Commissioner was required to perform when the ICAC was first established in 2012.

·   The Ombudsman

The Ombudsman will be the person to whom all complaints and reports concerning misconduct and maladministration will be referred to by the OPI.

Significant new provisions for investigating complaints and reports and related confidentiality provisions will be included in the Ombudsman Act 1972. This expands the role of the Ombudsman and will be interesting to see how an office that has already stretched resources will be able to function effectively with broader powers.

·  Complaints and reports

Complaint and reporting mechanisms will still exist, albeit under directions and guidelines of the OPI.

Confidentiality requirements imposed upon persons who have made or intend to make a report or complaint have been reduced significantly and related criminal offences deleted.

We will continue to provide information relevant to these legislative changes but, in the meantime, do not hesitate to contact Natasha Jones on 08 8113 7102, Michael Kelledy on 08 8113 7103, Tracy Riddle on 08 8113 7106, or Victoria Shute on 08 8113 7104.