Legislative Alert: Sweeping reforms to ICAC rushed through Parliament

On 25 August 2021, the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Bill 2021 (the Bill) was introduced in the Legislative Council proposing sweeping reforms to the powers and functions of the Independent Commissioner Against Corruption (ICAC).

The Bill had its second reading in the Legislative Council on 22 September 2021 and it passed (with amendments) later that same day. The Bill was received in the House of Assembly on 23 September 2021 and passed that day with some minor amendments, before returning to the Legislative Council where concurrence for those changes was obtained later that same day. The Bill now awaits Royal assent.

The Bill will amend the Independent Commissioner Against Corruption Act 2012 (SA) (the ICAC Act) and make related amendments to various other Acts for the stated purpose of ‘implement[ing] recommendations contained in the Report of the Crime and Public Integrity Policy Committee into matters of public integrity in South Australia.’

Notably, the Bill:

• amends the definitions of corruption and misconduct in public administration;
• significantly reduces the functions of the ICAC;
• changes how corruption, maladministration and misconduct will be investigated;
• introduces a ‘Reimbursement of Legal Fees Policy’.

Under the reforms, the ICAC (which will now be referred to as a ‘Commission’ as opposed to the ‘Commissioner’) will only have the powers to identify and investigate corruption in public administration. The ICAC’s other functions will be reduced to:

• evaluating the practices, policies and procedures of inquiry agencies and public authorities;
• conducting or facilitating the conduct or educational programs designed to prevent or minimise corruption in public administration; and
• reporting any suspected misconduct or maladministration or any offences identified in the course of performing functions in relation to potential corruption, to the Office of Public Integrity (OPI), or the Ombudsman.

The definition of ‘corruption’ in the ICAC Act will be limited to offences (or attempts to commit offences) under specific provisions of the Criminal Law Consolidation Act 1935, Public Sector (Honesty and Accountability) Act 1995, Public Corporations Act 1993 or the Lobbyists Act 2015. Corruption will therefore not include ‘any other offence committed by a public officer’ as is currently provided for in section 5(1)(c) of the ICAC Act.

The substantive definitions of ‘misconduct’ and ‘maladministration’ in public administration will be moved to the Ombudsman Act 1972 (SA), and the ICAC Act will utilise those definitions. While the definition of ‘maladministration’ will not change, misconduct will only include ‘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’.

Complaints made in relation to misconduct or maladministration in public administration will be investigated by the Ombudsman, instead of the ICAC.

The Bill also creates a ‘Reimbursement of Legal Fees Policy’ scheme whereby certain ‘Government Board appointees’, ‘Government employees’ and Members of Parliament (current and former) will be entitled to a reimbursement of costs incurred associated with their engagement of an independent legal practitioner where they have been the subject or, or required to participate in, a relevant ICAC investigation – subject to certain criteria having been met.

The amendments set out in the Bill are vast and all public officers, including council employees and elected members, will need to understand how these changes will affect their complaint management and reporting obligations.

Norman Waterhouse will be conducting information sessions on the Bill in the coming weeks in collaboration with the Local Government Association. If you are interested in having an information session for your council or region, please contact Virginia Liu on +61 8 8210 1279 or vliu@normans.com.au.

For more specific information on any of the material contained in this alert please contact Felice D’Agostino on +61 8210 1202 or fdagostino@normans.com.au, or Dale Mazzachi on +61 8210 1221 or dmazzachi@normans.com.au.