Our insights - Henry Davis York

ICAC triumvirate to herald greater procedural fairness and transparency

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18 November 2016

In efforts to restructure the Independent Commission Against Corruption (ICAC), the Independent Commission Against Corruption Amendment Bill 2016 passed through the lower house and upper house of the NSW Parliament on 16 November 2016.

The amendments are to allow for additional safeguards and promote greater transparency.

The Bill is awaiting Assent and will commence on a date to be proclaimed.

What's new?

Changes to the structure, governance and management of the ICAC including:

  • Abolishing the office of Commissioner Latham. The office will be replaced by three members consisting of a Chief Commissioner and two other Commissioners. The Governor of NSW in consultation with the Chief Commissioner will appoint the other Commissioners for a term of up to 5 years. Commissioner Latham will need to reapply for the role of one of the Commissioners.
  • The Governor may also appoint Assistant Commissioners to assist the Commissioners in their work.

Changes to the ICAC's power to conduct a public inquiry. A public inquiry must now be authorised by the Chief Commissioner and at least one other Commissioner. Changes relating to procedural fairness during public inquiries. The ICAC must issue guidelines to ICAC staff and Counsel Assisting the ICAC to ensure procedural fairness for "affected persons" during public inquiries. The guidelines deal with:

  • the investigation of evidence that might exculpate affected persons;
  • the disclosure of exculpatory or other relevant evidence to affected persons;
  • the opportunity to cross-examine witnesses as to their credibility; and
  • providing affected persons and other witnesses with access to relevant documents and time to prepare before giving evidence.

Changes relating to procedural fairness before the publication of adverse findings. The ICAC and the ICAC Inspector must give a person an opportunity to respond before including an adverse finding or adverse opinion about the person in a report.

Relevance for affected persons:

As the amendments emphasise procedural fairness, there may be a greater role for those giving evidence before the ICAC to:

  • ensure that exculpatory evidence is tendered;
  • ensure that individuals receive proper notice and relevant documents; and
  • preparing responses to proposed adverse finding or opinions.

Click here for more information on the Bill and explanatory notes.

Kathy Merrick

Partner

61 407 214 611

61 2 9947 6341

kathy.merrick@hdy.com.au

Stephen Gorry

Partner

61 417 028 380

61 2 9947 6577

stephen.gorry@hdy.com.au

Eric Herman

Special Counsel

61 2 9947 6165

eric.herman@hdy.com.au

Ben Wilford

Senior Associate

61 2 9947 6713

ben.wilford@hdy.com.au