Corporate and Advisory

ICAC reform in South Australia with significant changes to the scope of the ICAC’s functions

September 28, 2021

A new Bill has been passed in South Australia which introduces significant changes to the role of the Independent Commissioner Against Corruption (ICAC) in South Australia under the Independent Commissioner Against Corruption Act 2012 (SA) (the ICAC Act).

The Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Bill 2021 (the Bill) passed both houses of Parliament on Thursday 23 September 2021 and will commence upon Royal Assent. The Bill significantly changes the scope of functions and allocation of responsibility between SA’s two principal corruption and integrity bodies, the ICAC and the Ombudsman.

The Bill was introduced by SA Best MP Frank Pangallo following a 2019-2020 parliamentary inquiry into matters of public integrity, anticorruption measures and the interrelationships with integrity and anticorruption bodies. The final report of the Committee contained 17 recommendations and a number of these recommendations form the basis of the key amendments set out in the Bill.

Under the Bill, the ICAC (which will now be known as a ‘Commission’ rather than the ‘Commissioner’) will only have the power to identify and investigate corruption in public administration. The ICAC’s former powers and responsibilities in relation to maladministration and misconduct investigations have been conferred on the Ombudsman through corresponding amendment to the Ombudsman Act 1972. Significantly:

  • The definition of ‘corruption’ in the ICAC Act has been narrowed to conduct that constitutes offences (or attempts to commit offences) of a serious nature, including offences relating to public officers under the Criminal Law Consolidation Act 1935, offences against the Public Sector (Honesty and Accountability) Act 1995, the Public Corporations Act 1993 or the Lobbyist Act 2015. The broad catch-all provision which previously defined corruption as including “any other offence committed by a public officer” has been removed.
  • Consistent with the new demarcation of jurisdiction between the ICAC and the Ombudsman, the definitions of ‘misconduct’ and ‘maladministration’ in public administration have been moved to the Ombudsman Act 1972. The definition of ‘misconduct’ has also been narrowed to include only “an intentional and serious contravention of a code of conduct by a public officer while acting in their capacity as a public officer that constitutes a ground for disciplinary action against the officer“, whereas the previous definition encompassed any contravention regardless of seriousness. The meaning of ‘maladministration’ remains unchanged.

The ICAC’s remaining functions will continue, including:

  • The evaluation of practices, policies and procedures of inquiry agencies and public authorities in relation to corruption.
  • To conduct or facilitate the conduct or educational programs designed to prevent or minimise corruption in public administration.
  • To report any suspected misconduct or maladministration or any offences identified in the course of performing functions in relation to potential corruption, to the OPI or the Ombudsman.

Other notable amendments in the Bill include:

  • The Office of Public Integrity (OPI) has been established as a separate and independent entity.
  • An office of ‘Inspector’ has been established, replacing the former ‘reviewer’, with enhanced powers of review and oversight of ICAC and the OPI and with direct reporting lines to parliament.
  • Additional mechanisms to protect people from reputational damage.
  • Protections for politicians from investigation where parliamentary privilege applies.
  • A new ‘Reimbursement of Legal Fees Policy’ scheme has been created which allows Government Board appointees, Government employees and Members of Parliament which meet certain criteria, to claim for reimbursement of costs incurred associated with their engagement of an independent legal practitioner where they have been subject of, or required to participate in, an ICAC investigation.

The amendments set out in the Bill are significant and not capable of summarising in a short article. All public officers will need to come to grips with the new framework to understand their conduct, compliance and reporting obligations into the future.

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