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Review of the Independent Commission Against Corruption Act 1988

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Review of the Independent Commission Against Corruption Act 1988 Independent review of the Independent Commission Against Corruption Act 1988 Final Report Bruce McClintock, SC January 2005 ISBN 0-646-44487-5 © NSW Government 2005 Inquiry into the Independent Commission Against Corruption Act 1988 31 January 2005 ii Her Excellency Professor Marie Bashir AO Governor of New South Wales Office of the Governor of New South Wales Level 25, Goldfields House 1 Alfred Street SYDNEY NSW 2000 Your Excellency In accordance with the Letters Patent issued to me on 11 November 2004, I have reviewed the Independent Commission Against Corruption Act 1988 and prepared my final report of the results of my inquiry. I am pleased to present to you my final report. Yours sincerely Bruce McClintock, SC iii iv TABLE OF CONTENTS TERMS OF REFERENCE....................................................................... viii EXECUTIVE SUMMARY........................................................................ ix ABBREVIATIONS...................................................................................x RECOMMENDAT IONS........................................................................... xi CHAPTER 1 - INTRODUCTION............................................................... 17 1.1 Background to the review ......................................................... 17 1.2 Scope of the review ................................................................. 18 1.3 Process followed by the review .................................................. 19 CHAPTER 2 – TERMS OF THE ACT ........................................................ 22 2.1 Objectives of the Act............................................................... 22 2.2 Independence......................................................................... 24 2.3 Accountability ....................................................................... 25 2.4 Investigation.......................................................................... 26 2.5 Corruption prevention and education ........................................... 27 2.6 Exposure .............................................................................. 28 2.7 Powers................................................................................. 28 2.8 Serious corruption................................................................... 28 2.9 Conclusion............................................................................ 30 CHAPTER 3 - FUNCTIONS..................................................................... 31 3.1 General ................................................................................ 31 3.2 Investigation.......................................................................... 32 3.3 Corruption prevention and education ........................................... 33 3.4 Criminal prosecutions .............................................................. 35 Introduction.......................................................................... 35 Role of the DPP..................................................................... 36 Criminal convictions ............................................................... 38 Delay .................................................................................. 41 CHAPTER 4 – DEFINITION AND FINDINGS OF CORRUPT CONDUCT ........ 47 4.1 Introduction .............................................................................. 47 4.2 Appropriateness of definition – general considerations ..................... 48 4.3 Corruption of public officials under section 8(2)............................. 52 4.4 Aspects of the definition concerning Ministers of the Crown and Members of Parliament..................................................................... 54 4.5 Findings ............................................................................... 57 CHAPTER 5 - JURISDICTION ................................................................. 62 5.1 Public agencies and public officials ................................................ 62 5.2 Boards appointed by the Governor .............................................. 64 5.3 Government businesses ............................................................ 66 5.4 Outsourced Government functions .............................................. 67 5.5 Private citizens ....................................................................... 68 5.6 Local Government .................................................................. 69 Introduction.......................................................................... 69 Disciplinary proceedings for councillors...................................... 70 Code of conduct .................................................................... 73 5.7 Members of Parliament ............................................................ 74 5.8 Police .................................................................................. 87 CHAPTER 6 - POWERS .......................................................................... 90 v 6.1 Introduction .............................................................................. 90 6.2 Submissions proposing diminution of ICAC’s powers ..................... 91 Repeal of ICAC’s power to issue its own search warrant ................. 91 Exercise of certain powers on the authority of three Judges .............. 92 Parliamentary privilege ........................................................... 92 6.3 Submissions proposing an expansion of ICAC’s powers................... 96 Police powers of arrest, search and seizure etc............................... 97 Urgent listening device warrants ................................................ 98 Disposal of property............................................................... 99 Statements of information from non-public officials ......................101 Statutory power to enter premises .............................................102 6.4 Coercive Powers - Conclusion ......................................................104 6.5 Hearings .................................................................................106 Introduction..............................................................................106 Role of hearings ........................................................................107 Private hearings.........................................................................109 Public hearings ..........................................................................110 Particulars................................................................................112 CHAPTER 7 – ACCOUNTABILITY.........................................................114 7.1 Summary.............................................................................114 7.2 Importance of accountability ....................................................114 7.3 Current accountability mechanisms............................................115 Introduction.........................................................................115 Ombudsman........................................................................116 General public sector accountability ..........................................116 Judicial review .....................................................................117 Reports to Parliament.............................................................119 Public hearings .....................................................................121 Parliamentary Committee........................................................121 Operations Review Committee.................................................124 7.4 Gaps in accountability.............................................................126 7.5 Additional accountability mechanisms........................................127 Inspector.......................................................................................127 7.6 Reasons...............................................................................134 7.7 Merits review........................................................................136 CHAPTER 8 - CONTEMPT ....................................................................138 8.1 Summary.............................................................................138 8.2 Nature of contempt.................................................................139 8.3 Past reviews of contempt laws..................................................140 Commonwealth ....................................................................141 United Kingdom ...................................................................141 New South Wales .................................................................142 8.4 Contempt under ICAC Act .......................................................143 8.5 Contempt of ICAC by the Premier .............................................144 8.6 Contempt of ICAC by publication..............................................145 8.7 Other contempts of ICAC ........................................................148 General ..............................................................................148 Threats and insults ................................................................148 8.8 Submissions concerning contempt of ICAC..................................150 8.9 Reform of the procedure for dealing with contempt of ICAC ............151 vi Procedure for dealing with contempt of ICAC ..............................151 Provision of par ticulars...........................................................153 Certification ........................................................................153
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