The ICAC, the OPI and the Ombudsman — What you need to know right now!

12 October 2021

As all of our readers will be aware, the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 (the Act) completed a rapid trajectory through our Parliament, receiving assent on 7 October 2021.

Most provisions in the Act commenced operation that same day. This was by way of amendments to the Independent Commissioner Against Corruption Act 2021 (the ICAC Act) and to the Ombudsman Act 1972 (the Ombudsman Act), as well as other, consequential, amendments to related legislation.

The only provisions not yet commenced are those in section 59 of the Act, to insert a Schedule 4 into the ICAC Act, creating the role, functions and powers of the Inspector and Deputy Inspector. These provisions will commence on a day to be proclaimed.

To facilitate a quick and relatively ‘smooth’ transition, the Act contains a series of ‘savings and transitional’ provisions, which are intended, amongst other things, to ensure that actions commenced by the Independent Commissioner Against Corruption (the Commissioner), the Office for Public Integrity (the OPI) and the Ombudsman, prior to 7 October 2021, continue under the provisions of the ICAC Act, as they existed prior to the amendments.

The transitional provisions will also ensure that complaints and reports can continue to be made, and received, whilst new Guidelines, Directions and complaint/reporting systems are established by the Director of OPI and the Ombudsman.

This is what you need to know right now:

• the Commissioner holding office under the ICAC Act, as in force before the commencement of the Act, continues to holds office as the Commissioner (as does the Deputy Commissioner);
• by further notice in the Gazette, also published on 7 October 2021, the Attorney-General has fixed 6 January 2022 as the date until which there is to be an Acting Director of OPI and, following which, the Director of OPI must be appointed by the Governor;
• any complaint or report made on or before 25 August 2021, or any investigation commenced before that date, will continue to be dealt with under the ICAC Act, as in force before the amendments made by the Act.  Such complaints/reports or investigations not completed by 7 October 2022 (i.e. 12 months after the commencement of the Act) must be discontinued. However, nothing prevents a further complaint or report pertaining to the same matter being made under the ICAC Act or Ombudsman Act, as amended;
• any Government employee, Government Board appointee, Minister or Member of Parliament (as defined at Sch 1 to the Ombudsman Act), or any Union or Professional Association that has paid legal costs on behalf of such persons, subject to an investigation on a complaint or report made before 25 August 2021, may be entitled to claim compensation for legal costs incurred on, and from, 7 October 2021 under the Reimbursement of Legal Fees Policy (the Policy) a copy of which is now located at Schedule 1 to the Ombudsman Act and Schedule 5 to the ICAC Act;
• ‘Government employee’ for the purposes of the Policy is now defined under both the ICAC Act and the Ombudsman Act, to include a public sector employee under the Public Sector Act 2009, or ‘a person who is appointed to any office under an Act’, or, in certain circumstances, a volunteer within the meaning of the Volunteers Protection Act 2001;
•  these amendments, which on their face, unequivocally capture State employees, also appear to capture a council CEO and elected members (as persons who may be asserted to enjoy an appointment to office following an election process under the LG and LG (Elections) Acts) and council volunteers, but not other council employees, as persons who will, subject to satisfying certain criteria, be entitled to seek reimbursement of legal costs under the Policy;
• the complaints and reporting systems established under the ICAC Act, prior to amendment, (including the Commissioner’s Directions and Guidelines for Public Officers), will continue for a period of 3-months, until new systems and Guidelines can be established by the Director of OPI and the Ombudsman;
• likewise, the website created by the Commissioner will continue in existence, for now. The Director of OPI and the Commissioner have a period of 6 months from 7 October 2021, to establish two (2) separate websites, reflecting the respective roles and responsibilities of each Office;
• importantly, at least from a cost perspective, the Director of OPI or the Ombudsman, can still refer certain matters to a council for investigation; and
• the first review to be completed by the Inspector under the ICAC Act, must consider whether undue prejudice to the reputation of any person was caused by the Commissioner (or employees of the Commissioner or the OPI), under the ICAC Act as in force prior to amendment. This is a significant retrospective function for the Inspector who may publish a statement where he/she considers that it may alleviate identified prejudice, or recommend that the Commission pay an amount by way of compensation.

Accordingly, whilst the Act operates to create separate and distinct, integrity bodies, in the form of the Commission (with a Commissioner) and the OPI (with a Director), the reporting obligations of public authorities and public officers remain unchanged at this time. Similarly, for now, the manner in which reports and complaints are made and received (including through the portal on the ICAC website), remains unchanged.

This is despite the fact that those matters which are assessed as possibly giving rise to maladministration and/or misconduct in public administration, will now be referred by the Director of OPI to the Ombudsman, noting, of course, that either may still refer a matter to a council for investigation (whether or not requiring a report back).

Likewise, any existing and ongoing referral of a complaint or report, or, otherwise, an investigation by a public integrity body, will continue under the provisions of the ICAC Act, as in force prior to amendment, until 7 October 2022, when it must be discontinued if not completed.

If we can be of further assistance to you or your council on any of the amendments made to the public integrity framework, please contact:

Michael Kelledy on 08 8113 7103 or mkelledy@kelledyjones.com.au;

Natasha Jones on 08 8113 7102 or njones@kelledyjones.com.au;

Tracy Riddle on 08 8113 7106 or triddle@kelledyjones.com.au;

Cimon Burke on 08 8113 7105 or cburke@kelledyjones.com.au; or

Victoria Shute on 08 8113 7104 or vshute@kelledyjones.com.au