The role of the ICAC in the criminal justice system

The decision of the District Court of South Australia in R v Bell [2020] SADC 107 has put the role of the Independent Commissioner Against Corruption (ICAC) in the South Australian criminal justice system into sharp focus.

Given the public interest generated by this case, it worthwhile to provide a brief overview of the matter and a more general refresher as to what exactly is the role of the ICAC within the criminal justice system in South Australia.

Summary of Decision

The applicant, Mr Troy Bell MP, was charged with 20 counts of theft and six counts of aggravated dishonest dealings with documents contrary to the Criminal Law Consolidation Act 1935 (SA). The charges were laid by the Director of Public Prosecutions (DPP). The ICAC had referred the matter to the DPP and continued to work with the DPP in the preparation of the matter for trial. South Australian Police (SAPOL) had no involvement in this process.

While the charges have not yet proceeded to trial, crucially the Court has determined that the ICAC’s referral of the matter direct to the DPP and the provision of information and evidence to the DPP at that time was contrary to the Independent Commissioner Against Corruption Act 2012 (SA) (ICAC Act). Rather, the matter should have been referred to SAPOL for further investigation and prosecution. The Court considered ICAC’s subsequent involvement in the prosecution proceedings was also beyond the functions of the ICAC under the ICAC Act.

The Court held that the ICAC’s investigation (which included converting compulsory examination transcripts to witness statements to be filed in court, responding to requests from the DPP to obtain witness statements for trial and locating and dealing with relevant witnesses) impermissibly crossed the line into the accusatorial judicial process.

This decision has implications which have undermined the prosecution position, not only in Mr Bell’s case, but also other matters which have been referred directly by the ICAC to the DPP. The DPP has indicated that there are a number of such matters ongoing at the moment. The ICAC has requested legislative amendment to address the issue.

Powers and functions of the ICAC

The functions of the ICAC are set out in Section 7 of the ICAC Act and include, among other things:

• to identify corruption in public administration and to:
  • investigate and refer it for prosecution; or
  • refer it to a law enforcement agency for investigation and prosecution.

However, the Court determined such matters are merely functions of the ICAC, not the powers vested in the office holder.

Other provisions of the ICAC Act set out the specific powers available to the ICAC in order to carry out the statutory functions. The relevant framework of powers is as follows:

• If a matter is assessed by the ICAC as raising a potential issue of corruption in public administration that could be the subject of a prosecution, the matter must be either:
  • investigated by the ICAC; or
  • referred to SAPOL or another law enforcement agency (and the DPP is not a law enforcement agency as defined under the ICAC Act);

• If the ICAC carries out the investigation, then, upon completing the investigation or at any time during the investigation, the ICAC’s options are to do either or both of the following:
  • refer a matter to the relevant law enforcement agency for further investigation and potential prosecution (and again, the DPP is not a law enforcement agency as defined under the ICAC Act); or
  • refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.

The effect of the above is that the Court has concluded the ICAC does not have the power to refer a matter directly to the DPP. The Court rejected a number of arguments made by the DPP (including by reference to other provisions of the ICAC Act) to the contrary.

It remains to be seen what steps the State might take to address the impact of these findings.

Separately, a critical learning from this case is the importance of understanding the distinction between statutory ‘functions’ and ‘powers’. It is a distinction which is relevant in many legislative contexts. The terms are not always interchangeable, although sometimes they may be. In a local government context and by way of example, while councils have a number of very broad ‘functions’ under the Local Government Act 1999, they must always ensure they are properly exercising appropriate powers to fulfil those functions.

For more information about the matter contained in this article, please contact Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au or Chris Alexandrides on 8210 1299 or calexandrides@normans.com.au