Norman Waterhouse
   
Norman Waterhouse

Normans Alert

Special Report – Inaugural ICAC annual report follows SAPOL officer arrests

The Independent Commissioner Against Corruption (ICAC) made headlines this week, with a number of South Australian Police (SAPOL) officers being arrested as the result of an ICAC investigation. The SAPOL officers were arrested for theft of tools, alcohol and other items. The investigation was initiated following a compulsory report made to the Office for Public Integrity (OPI) by the Anti-Corruption Branch of SAPOL (who participated in the investigation) pursuant to the ICAC’s Directions and Guidelines for Inquiry Agencies, Public Authorities and Public Officers (Directions and Guidelines – available here). The SAPOL officers were arrested in a pre-dawn operation.

These arrests are striking for a number of reasons. They demonstrate that ‘everyday’ offences, when committed by public officers, can constitute corruption. Theft in particular is a type of offence that could exist in any public sector workplace, whether an office, a depot or other environment. Further, the arrests are the first public knowledge of these alleged misdeeds – the South Australian ICAC model works such that persons are investigated and charged without public hearings.

However, as dramatic as the arrests are, there is another item of ICAC news this week that is of equal relevance to Local Government and the public at large: the first annual report of the ICAC has been laid before Parliament and is now available to the public.

ICAC Annual Report

The ICAC is required by the Independent Commissioner Against Corruption Act 2012 (SA) to report annually on various prescribed matters. These include the number and general nature of complaints and reports received, of matters investigated, of matters referred to other bodies, and numerous other subjects. Some key insights are set out below.

Complaints and Reports to the OPI and ICAC

In the report period, there were a virtually equal number of public complaints versus mandatory reports made under the Directions and Guidelines: 462 complaints and 461 reports.

The substantial majority of public complaints related to:

  • “Failure to exercise/inadequate or inappropriate exercise of power”; and
  • “Failure to comply with policy/mismanagement or inappropriate conduct toward member of the public”.

Those matters were also common among mandatory reports. However, the following matters were also among the more frequent subject matter of mandatory reports:

  • “Improper disclosure and/or use of confidential information”;
  • “Theft/misuse of public money”; and
  • “Other criminal conduct occurring while a public officer is acting in their capacity as public officer”.

These latter issues are probably more often the subject of mandatory reports than public complaints due to the fact that officers within the public sector necessarily have day-to-day exposure to and understanding of public administration. Public officers, public authorities and inquiry agencies are best placed to identify and expose corruption, misconduct and maladministration in public administration. It is for this reason they have mandatory reporting obligations placed upon them under the Directions and Guidelines.

Of all public complaints, 19% related to Local Government (the majority related to State Government agencies). Of all mandatory reports, 13% related to Local Government.

Corruption Investigations

The ICAC investigated 13 complaints and 77 reports which raised potential issues of corruption in public administration. The ICAC also commenced 3 investigations at his own initiative. The substantially higher number of reports than public complaints which warranted investigation further demonstrates that it is public officers, public authorities and inquiry agencies who are in the best position to identify and expose genuine deficiencies in public administration.

Unsurprisingly, given interstate anti-corruption experiences, the most common subject matters of ICAC investigations have been:

  • “Abuse of power in relation to contracts, tendering and procurement”;
  • “Abuse of power for personal benefit (or benefit of another)”;
  • “Improper use and/or disclosure of confidential information”; and
  • “Theft/misappropriation of public money”.

18 search warrants were issued and 5 examinations (compulsory attendances to answer questions, in private) were conducted in relation to these investigations.

Referrals

Where matters do not amount to corruption but may amount to misconduct or maladministration, the ICAC can:

  • Refer the matter to another inquiry agency; or
  • Exercise the powers of another inquiry agency in respect of the matter (a power which is used, among other circumstances, where corruption matters overlap with misconduct and/or maladministration); or
  • Refer the matter to the public authority concerned.

Conspicuously, of the 8 complaints and 11 reports referred to the Ombudsman, conflict of interest was by far the most common subject, comprising 63% of such matters.

Matters which were referred to public authorities most often concerned the following subjects:

  • “Dishonesty associated with employment”;
  • “Failure to comply with a policy or procedure”; and
  • “Failure to exercise/inappropriate exercise of power”.

What Next?

As set out above, the report provides some insight into the types of matters which the ICAC is pursuing. The ICAC also highlights in the report some other particular areas of general concern. One such area of concern is the avoidance and misapplication of Freedom of Information processes. Another concern of the ICAC is inappropriate use of social media, including anonymously (examples include vilification of other officers, and improperly divulging and spreading information).

Regarding future reforms, the ICAC has, among other things, suggested that a devoted unit of government investigators be established. This proposal is directed at combating what the ICAC perceives as superficial internal investigations by public authorities following referrals by the ICAC. Another proposed reform is mandatory training requirements for public officers regarding ethical responsibilities. It is expected that these matters will be the subject of future reports.

The ICAC also alludes to his view that the Local Government Codes of Conduct are inflexible and have the capacity to interfere with Local Government business. Separately from this report, the ICAC is making suggestions to the Minster for Local Government regarding improvements to the Codes.

Take Home Message

These first public arrests, statistics and observations arising from the operations of the ICAC not only show that ICAC is very much active and operational, but also demonstrate some important trends and lessons.

Perhaps chief among these lessons is that, as a public officer, you are the frontline of identifying and exposing corruption, misconduct and maladministration in public administration. Mandatory reports are proving to be the most important starting point for the ICAC’s investigations and referrals. You have mandatory reporting obligations set out in the Directions and Guidelines that you must familiarise yourself with and put into practice.

Norman Waterhouse looks forward to continuing it advisory, training and educational role regarding public integrity in Local Government as the ICAC becomes an increasingly prominent feature of South Australia’s public integrity framework.

For more specific information on any of the material contained in this article please contact Sathish Dasan on 8210 1253 or sdasan@normans.com.au.


 

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