The Northern Territory will soon have a new anti-corruption commissioner, with the passage and assent of the Independent Commissioner Against Corruption (ICAC) Act late last year.
The Act is expected to commence, and the ICAC is expected to become operational, from mid-2018.
While public entities in the Territory will have the most obvious interest in the role of the new Commissioner, private entities will also need to be aware of the Commissioner's powers given the possibility that they may be drawn into the scope of an ICAC investigation, as has played out interstate under similar regimes.
The Act was prepared with the assistance of a detailed report by the Hon Brian Martin AO QC (the former Chief Justice of the Northern Territory Supreme Court), which made recommendations for the way in which an ICAC could be established in the Northern Territory, including the model and powers which would be appropriate.
No easy task
There are few jobs which require more careful and balanced judgment than that of anti-corruption commissioner. The Commissioner will possess investigative powers which in significant ways exceed those of the Police, and the Commission's processes may in many ways be less open to public scrutiny and legal review than those of a court.
A key focus of the Commissioner's role will be on undertaking investigations into suspected corruption in public affairs. Corruption is, almost invariably, difficult to detect and very carefully concealed. The Commissioner will face no easy task in uncovering it. What is more, he or she will at times be operating in an atmosphere of public interest or even public outrage, and may come under pressure to reach a certain conclusion. The Commissioner will need to take strong, sometimes highly intrusive action to uncover the truth behind the controversy.
However, the Commissioner will need to keep firmly in mind that there will be warm bodies in his or her firing line.
The potential for corruption investigations to damage the individuals who are their subject is obvious. To illustrate this potential, the Martin Report referred to the observations of Hon David Levine, Inspector of the NSW ICAC:
"It is clear to me as Inspector that for those involved in ICAC proceedings, publicity is the most damaging feature irrespective of whether any ultimate criminal sanction is imposed and the more so when no criminal prosecution is in fact instituted, or if commenced, fails. The finding of “corruption” once made and published, sticks. The damage to reputation (and, is often the case, health, family relationships, business relationships and cognate matters) occurs, so it is perceived, as soon as there is reference in the instruments of mass and social communication of a person’s mere involvement in an ICAC matter".
Powers and limits
At present, the main entities responsible for the independent investigation of public corruption in the Northern Territory are the Ombudsman and the Commissioner for Public Interest Disclosures. These entities described themselves in a submission for the Martin Report as having “significant practical limits” in relation to the investigation of MLAs, Ministers and political staff.
Further, their general investigative powers are not as extensive as those of the new ICAC; for example neither have the power to require a person to answer a question to which the privilege against self-incrimination applies. Importantly for the purposes of public confidence, neither entity can conduct public hearings.
The ICAC's powers, on the other hand, will be extensive.
The ICAC will have the power to, among other things:
- require a person to produce documents to it, to answer questions or to attend before it for examination on oath. The ICAC will not be required to provide prior notice to the person as to the nature of the matters about which the person is to be questioned, or the matters to which the documents are said to relate, if the ICAC considers that doing so would prejudice the investigation or be against the public interest.
- enter the premises of a public body or premises of a public officer used for official duties without a warrant (other than residential premises, for which a warrant must be obtained) to conduct searches, make recordings and seize documents. While on the premises, the Commissioner will have the power to require a person on or about the premises to (among other things) answer questions or provide passwords. It will be an offence for the person to refuse to comply. Nothing in the Act requires the ICAC to give prior warning that it intends to enter premises for this purpose.
- conduct a public inquiry, and require a person to appear at an inquiry to publically answer questions on oath, in some cases without prior notice of the nature of the questions.
- compel a witness to answer a question, even if the answer tends to incriminate the person or make the person liable to a penalty. There are, however, limits on the subsequent use of evidence taken over objection on this basis.
The ICAC may use its powers to investigate a broad variety of conduct, although its emphasis will be on corrupt conduct and serious anti-democratic conduct. It can investigate conduct which occurred prior to the commencement of the Act.
The ICAC will be empowered to investigate the conduct of a range of people including MLAs, ministers, local councillors and even judicial officers. Its role is to promote and protect confidence in the integrity of public functions, and as such the subjects of its investigations will likely be public officers and entities. Its powers extend to investigating the conduct of any person which could impair public confidence in public administration in respect of certain matters, whether or not that person is a public officer or a public body. This could include tenderers for government contracts, applicants for licences, and contractors providing services to government, among others.
It is worth noting that the ICAC will be empowered to investigate conduct which is capable of affecting the efficacy, and not just the probity, of the exercise of public functions. This comes after the High Court's decision on the type of conduct which the New South Wales ICAC was empowered to investigate, in ICAC v Cunneen [2015] HCA 14. In that case, the ICAC alleged that Margaret Cunneen SC had counselled her son's girlfriend to pretend to have chest pains, to delay a breathalyser test following a motor vehicle accident.
The High Court held that the ICAC did not have the power - on the NSW ICAC legislation which existed at the time - to investigate the matter. That was because Ms Cunneen's alleged conduct could only have affected the ability of the Police to carry out their duties, and not their honesty in doing so. Accordingly, it was not conduct of a type which could be investigated under the Act, which was (to simplify) directed to the dishonest exercise of public functions rather than to dishonesty which had some effect on public functions.
The Northern Territory Act, however, is worded differently. It fairly clearly enables the Commissioner to conduct investigations into conduct falling within both categories.
The ICAC's powers, although extensive, will not be unlimited. It will be required to afford procedural fairness to witnesses as required by common law (save where successfully excluded by the Act). That means that (in a general sense), where the proposed exercise by the ICAC of one of its powers is liable to adversely affect a person's right or interest, the person is entitled to a reasonable opportunity to be heard on that proposed exercise of power.
Further, the ICAC's powers will be defined - and limited - by the terms in which they are expressed in the new Act.
Would we know what to do if ICAC came knocking?
A question which arises for public entities, and for businesses who deal or have dealt with them, is "do my employees understand what they must - and must not - do in the event that an investigator enters their premises, asks them questions or otherwise involves them in its investigations?" This may occur without warning, and may carry penalties for non-compliance. It may be very difficult to predict whether or when this may occur, as the ICAC can exercise investigative powers not only in relation to those suspected of having engaged in corrupt conduct, but in relation to anyone who it thinks may have documents or information which would assist an investigation.
Clayton Utz has delivered seminars to entities and businesses in other jurisdictions to help them answer this question in the affirmative. Please contact Margaret Michaels or Mark Spain if you would like more information about helping to manage your risk.
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