The Rise of the ‘Abuse of Public Office’ Offence

With the birth of the Independent Commission Against Corruption (ICAC) investigating conduct of public and government officials, the offence of Abuse of Public Office is seeing an renaissance in South Australia.

Ensuring the integrity and lawful conduct of public officers such as police, teachers and politicians is integral to public interest given the trust we place in them.

Disciplinary frameworks are set up to ensure public officials abide by their institutions code of ethics and ordinary standards expected of them. Where these codes are breached, the person is liable to appropriate internal disciplinary action which may include loss of income, a change in job role, compulsory attendance at counseling or training courses and even termination of employment. Often a criminal penalty is inappropriate or unwarranted to the subject conduct. However, in recent times there has been an increase in persons not only being facing disciplinary action for alleged improper conduct, but criminal charges in the form of the offence of Abuse of Public Office.

Defining Abuse of Public Office

Abuse of public office is a serious and complex criminal offence which requires experienced legal advice from the early stages.

Under the Criminal Law Consolidation Act, the maximum penalty for this offence is imprisonment for 7 years. Commonly, the charge is laid as an aggravated offence exposing the accused person to a higher penalty of imprisonment for 10 years. This is justified where the accused person breached a position of authority.

The first element the prosecution must prove is that you were a public officer. In most cases this will be obvious, but it is something you should check. If your employment arrangement with the State is unusual, it might be that you are not a “Public Officer” for the purposes of the Act and so cannot be guilty of the offence.

The prosecution must then establish your conduct which they say falls within the definition of abuse of public office. Given the definition of the offence captures a wide range of acts, your lawyer will seek a document shortly after being charged which particularises the alleged offending against you. This could be either:

– you act an act (‘exercised a power or influence’) you have could only have done because you are a public officer, or

– that you have failed or refused to do something which you were supposed to do in your role as a public officer, or

– that you positively used information that you were only aware of because of your employment as a public officer.

Having a lawyer seek these particulars is crucial as where the charge alleges more than one of the above things, the charge might be defective. Knowing these particulars will also allow you to understand exactly which path to proof the prosecution is relying on to prove your guilt.

Next, the prosecution must prove that when you did the act or made the omission alleged you had the relevant intention. You must have the relevant intention at the time you did the act. So, at the time you did the act or made the omission, you must have either intended to secure a benefit for you or another person, or intended to cause injury or detriment to another person. Proving intention is often complex. You can’t simply open up someone’s head and run it through a computer and get a report about what someone’s intention was. You must look at all the facts and draw common sense conclusions to see whether the relevant intention existed at the time. Sometimes if the act is proved then the intention will be fairly obvious. But often it will not be and there are countless shades of grey.

Lastly, the prosecution must prove that your conduct and intention were improper. The term “acted improperly” has a special legal meaning. It is a question of fact which requires the court to assess objective, community standards to determine whether the proposition is established. In essence, the court will consider your conduct against a public standard expected of public officers in the same position as yourself. The court must find that you acted knowing that your conduct was improper or that you were reckless as to the result.

Not only does this require an assessment of the standards of the community and what is reasonably expected of a public officer, but the conduct must be serious enough to justify a criminal sanction. This is important where, for example, the conduct alleged is trivial and caused no significant detriment to the public interest.

So, to give a ridiculous example, if the government owned a bakery and appointed you the government baker, and you stole a loaf of bread from the bakery to feed your children who were sick and starving, the Court might find that you exercised a power to steal the bread (which you could only do because you were appointed the government baker), and you did so intending to benefit your children, and you knew it was wrong to steal the bread from the government. But applying community standards, it might find that your conduct is not something that warrants you being criminally sanctioned, given the desperate circumstances of you and your children. Thus you would be acquitted of the charge of abuse of public office but may be found guilty of the lesser charge of stealing.

As you can see, the offence is a complicated one. At TGB we have significant experience in this area of the law and other matters relating to ICAC and the charges that can follow from its investigations. If you are facing disciplinary proceedings and/or criminal charges we can provide you with essential advice and guidance through the process.

To arrange an appointment, contact your nearest TGB office.