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Committee on the Independent Commission Against Corruption PARLIAMENT OF NEW SOUTH WALES Committee on the Independent Commission Against Corruption REPORT 2/56 – OCTOBER 2016 REVIEW OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION: CONSIDERATION OF THE INSPECTOR’S REPORTS PARLIAMENT OF NEW SOUTH WALES COMMITTEE ON THE INDEPENDENT COMMISSION AGAINST CORRUPTION REVIEW OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION: CONSIDERATION OF THE INSPECTOR'S REPORTS REPORT 2/56 – OCTOBER 2016 New South Wales Parliamentary Library cataloguing-in-publication data: New South Wales. Parliament. Committee on the Independent Commission Against Corruption. Review of the Independent Commission Against Corruption: consideration of the Inspector’s reports / Joint Committee on the Independent Commission Against Corruption. [Sydney, N.S.W.] : the Committee, 2016. [95] pages ; 30 cm. (Report ; no. 2/56) Chair: Damien Tudehope MP. “October 2016”. ISBN 9781921012389 New South Wales. Independent Commission Against Corruption. Corruption investigation—New South Wales. Title. Tudehope, Damien. Series: New South Wales. Parliament. Committee on the Independent Commission Against Corruption. Report ; no. 2/56. 364.13230994 (DDC22) The motto of the coat of arms for the state of New South Wales is “Orta recens quam pura nites”. It is written in Latin and means “newly risen, how brightly you shine”. REVIEW OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION Contents Membership _____________________________________________________________iv Terms of Reference ________________________________________________________ v Chair’s Foreword __________________________________________________________vi Executive Summary _______________________________________________________ viii List of Findings and Recommendations ________________________________________ xi CHAPTER ONE – STRUCTURE AND GOVERNANCE ____________________________ 1 THREE MEMBER COMMISSION ____________________________________________ 1 There should be a three member Commission _____________________________________ 1 Thresholds for public hearings __________________________________________________ 5 The Chief Commissioner should be full time and the other Commissioners part time ______ 5 The Joint Committee on the ICAC should have a power of veto over all three commissioners 7 The three Commissioners should have certain legal qualifications ______________________ 7 CHIEF EXECUTIVE OFFICER _______________________________________________ 8 The ICAC should have a Chief Executive Officer _____________________________________ 8 ICAC STAFF ___________________________________________________________ 9 ICAC staff should not be brought under the Government Sector Employment Framework __ 9 CHAPTER TWO – POWERS AND PROCEDURES _____________________________ 11 REVIEW OF ICAC FINDINGS _______________________________________________ 11 There should be no ‘exoneration protocol’ and no ‘merits review’ of ICAC findings _______ 11 PROCEDURAL FAIRNESS ________________________________________________ 14 The ICAC should comply with procedural fairness during public inquiries and before publishing adverse findings ____________________________________________________ 14 People should be able to respond to adverse findings and their response should generally be published __________________________________________________________________ 19 The ICAC should exercise its power to issue notices to produce with care _______________ 22 PROSECUTIONS AND THE ICAC’S RELATIONSHIP WITH THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS _________________________________________________ 25 The ICAC should provide all disclosable evidence to the Director of Public Prosecutions ___ 25 The ICAC should continue to have investigative powers after a matter is referred to the Director of Public Prosecutions _________________________________________________ 27 There is considerable public interest in the successful prosecution of persons investigated by the ICAC who have committed criminal offences __________________________________ 29 CHAPTER THREE – OVERSIGHT ________________________________________ 31 OFFICE OF THE INSPECTORATES __________________________________________ 31 There should be an ‘Office of the Inspectorates’ ___________________________________ 31 The ICAC Inspector role should remain part time __________________________________ 33 OCTOBER 2016 i COMMITTEE ON THE INDEPENDENT COMMISSION AGAINST CORRUPTION The Committee on the ICAC should continue to have a power of veto over the appointment of the ICAC Inspector _________________________________________________________ 34 The ICAC Inspector should have certain legal qualifications __________________________ 34 There should be a separation between the Inspectors and the operational organisation supporting them ____________________________________________________________ 35 MEMORANDUM OF UNDERSTANDING BETWEEN THE ICAC AND INSPECTOR _________ 36 A productive working relationship between the Commissioner and Inspector is important for effective oversight of the ICAC _________________________________________________ 36 COMPLAINTS TO THE INSPECTOR _________________________________________ 37 People should be able to complain to Inspector regardless of suppression orders ________ 37 APPENDIX ONE – CONDUCT OF THE INQUIRIES ____________________________ 39 INQUIRY INTO THE ICAC INSPECTOR’S REPORT TO THE PREMIER: THE INSPECTOR’S REVIEW OF THE ICAC __________________________________________________ 39 Terms of Reference __________________________________________________________ 39 Submissions ________________________________________________________________ 39 Public Hearings ______________________________________________________________ 39 INQUIRY TO REVIEW THE INSPECTOR’S REPORT REGARDING OPERATION HALE ______ 40 Resolution to Conduct the Inquiry ______________________________________________ 40 Submissions ________________________________________________________________ 40 Public Hearings ______________________________________________________________ 40 Documents and Material Presented to the Committee ______________________________ 40 Unauthorised Disclosure of Confidential Material __________________________________ 41 APPENDIX TWO – LIST OF SUBMISSIONS _________________________________ 42 APPENDIX THREE – LIST OF WITNESSES _________________________________ 43 THURSDAY, 11 FEBRUARY 2016, MACQUARIE ROOM, PARLIAMENT HOUSE ___________ 43 MONDAY, 14 MARCH 2016, MACQUARIE ROOM, PARLIAMENT HOUSE _______________ 43 FRIDAY, 18 MARCH 2016, MACQUARIE ROOM, PARLIAMENT HOUSE ________________ 44 THURSDAY, 8 SEPTEMBER 2016, MACQUARIE ROOM, PARLIAMENT HOUSE __________ 44 FRIDAY, 9 SEPTEMBER 2016, MACQUARIE ROOM, PARLIAMENT HOUSE _____________ 44 APPENDIX FOUR – EXTRACTS FROM MINUTES _____________________________ 46 ii REPORT 2/56 REVIEW OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION Figures Figure 1 Proposed re-structure of the ICAC _____________________________________ 1 Figure 2 Proposed 'Office of the Inspectorates' model ___________________________ 31 OCTOBER 2016 iii COMMITTEE ON THE INDEPENDENT COMMISSION AGAINST CORRUPTION Membership CHAIR Mr Damien Tudehope MP DEPUTY CHAIR Mr Adam Marshall MP (until 25 August 2016) Mr Geoff Provest MP (since 15 September 2016) MEMBERS Mr Ron Hoenig MP The Hon Kevin Humphries MP Mr Paul Lynch MP (since 25 August 2016) Ms Tania Mihailuk MP Mr Chris Patterson MP Ms Kathy Smith MP (until 25 August 2016) Mr Mark Taylor MP The Hon Trevor Khan MLC Revd the Hon Fred Nile MLC The Hon Lynda Voltz MLC CONTACT DETAILS Committee on the Independent Commission Against Corruption Parliament of New South Wales Macquarie Street Sydney NSW 2000 TELEPHONE 02 9230 2214 E-MAIL [email protected] URL www.parliament.nsw.gov.au/icac iv REPORT 2/56 REVIEW OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION Terms of Reference Terms of Reference – Inquiry into the ICAC Inspector’s Report to the Premier: The Inspector’s Review of the ICAC That the Committee on the Independent Commission Against Corruption (‘ICAC’) review and report on the ICAC Inspector’s Report to the Premier: The Inspector’s Review of the ICAC dated 12 May 2016; with particular regard to: 1) the extent, nature and exercise of the ICAC’s current powers and procedures including the rationale for and conduct of investigations and public hearings, and possible options for reform; 2) the current structure and governance of the ICAC, best practice models adopted by other integrity institutions, and possible options for reform; 3) the current oversight arrangements for the ICAC, including the role, powers and resourcing of the ICAC Inspector, and possible options for reform; 4) whether the outcome of legal action taken in response to the ICAC’s corrupt conduct findings is adequately reflected on the public record; and possible options for reform; 5) any other related matters. In conducting its inquiry the Committee will take into account relevant reports and documents impacting on the terms of reference, in particular: a. the report of the Hon Murray Gleeson AC, QC and Mr Bruce McClintock SC, Independent Panel – Review of the Jurisdiction of the Independent Commission Against Corruption, dated 30 July 2015; b. the report of Mr Andrew Tink AM, Review of Police Oversight, dated 31 August 2015; c. any report of the ICAC Inspector recommending changes to the ICAC’s practice and procedure. OCTOBER 2016 v COMMITTEE ON THE INDEPENDENT COMMISSION AGAINST CORRUPTION Chair’s Foreword It is true to say that the last two years have been difficult years for the Independent Commission Against
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