October 30, 2014

The South Australian Independent Commissioner against Corruption (ICAC) was established in South Australia in 2013 and was set up to investigate corruption, misconduct and maladministration in public administration. The Independent Commissioner against Corruption Act 2014 defines public officers and public authorities as follows:

Public officers include:

  • Members of Parliament
  • Members of the Judiciary
  • Police Officers
  • Public Sector Employees
  • Councillors
  • Council Employees
  • Persons contracted to perform work for a Public Authority or the Crown

Public Authorities include:

  • The Governor
  • Both Houses of Parliament
  • South Australian Government Departments, Agencies and Statutory Authorities
  • Local Councils

Generally speaking, ICAC does not have power to investigation allegations of corruption or misconduct within private organisations.

ICAC does not have the power to make any findings or to hand down any penalties. It can however refer a brief of evidence to the Director of Public Prosecutions for further investigation and/or prosecution. If there is evidence of criminal offending, then those offences would be prosecuted in the normal manner by the DPP in one of the state courts, with the same evidentiary requirements as all criminal trials. ICAC can also refer evidence to public authorities for investigation and possibly disciplinary action against a public officer.

South Australia was the last state to set up an ICAC and there are significant differences between the South Australian ICAC and interstate ICACs. You may have recently read about the significant interstate ICAC hearings. If you have been contacted by ICAC to give evidence, it is very important that you understand the difference between the powers of the South Australian ICAC vs interstate ICACs.

In South Australia all investigations and hearings are held in private and it is a breach of the ICAC Act to disclose information obtained during an ICAC hearing or interview. It can also be an offence to disclose the existence of a Summons or even the fact that you have been contacted by ICAC. It is important to understand that once you have appeared as a witness or been spoken to by ICAC that you do not disclose to anybody, other than a legal practitioner, the subject of the investigation or even the fact that you have been contacted by ICAC. The penalties for breaches of this obligation are a significant monetary fine or even imprisonment.

The ICAC legislation sets out what information people summonsed to ICAC are required to disclose. In South Australia that information is very limited and before you provide any statements or answer any questions, you should know exactly what you are required to answer. In most circumstances, any information you give at a hearing or to an investigator can be used as evidence against you in criminal proceedings.

You may believe that if you have been Summonsed or requested to appear before ICAC that you have to answer all questions. That is not the case and it is very important that anybody who is requested to attend at either at an interview or a hearing obtain specialist legal advice about exactly what is required to be disclosed. Websters Lawyers in Adelaide and the North East can provide the assistance required and can arrange a free first interview with an expert criminal lawyer if you are the subject of an ICAC enquiry.