Criminal law

“I’ve been summonsed to appear at the ICAC, what should I do?”

The TGB criminal law team outline South Australia's Independent Commissioner Against Corruption (ICAC) and Office for Public Integrity (OPI).

The TGB criminal law team outline South Australia’s Independent Commissioner Against Corruption (ICAC) and Office for Public Integrity (OPI).

On 1 September 2013, the South Australian Government established an Independent Commissioner Against Corruption (ICAC) and an Office for Public Integrity (OPI) to identify and deal with public corruption.

The ICAC and OPI examines the conduct of public officers as well as private individuals who it is alleged have engaged in corrupt conduct with a public officer or agency.

The ICAC Commissioner’s primary objects are to—

– investigate serious or systemic corruption in public administration; and

– refer serious or systemic misconduct or maladministration in public administration to the relevant body, giving directions or guidance to the body or exercising the powers of the body as the Commissioner considers appropriate.

The functions of the OPI are to manage complaints about public administration with a view to:

1) identifying corruption, misconduct and maladministration in public administration; and

2) ensuring that complaints about public administration are dealt with by the appropriate person or body.

The OPI will receive complaints relating to public officials and administration.

The ICAC has the power to investigate conduct that occurred many years ago including conduct that occurred before a person became a public officer and conduct that has occurred subsequent to a person’s time as a public officer.

The ICAC will be assisted in investigations by “investigators” and “examiners” who will compile evidence and speak with witnesses.  An examiner may summon a person to appear at the ICAC before an examiner in order to give evidence and produce documents as referred to in the summons.  An examination by the ICAC will be conducted in private and the identity of an individual summoned to appear must remain confidential. In certain circumstances, the summons will include the general nature of the matters that the person will be questioned about.  The maximum penalty for failing to attend the ICAC is $20, 000 or imprisonment for four years.  Refusing to answer a question at the ICAC or refusing to produce a document attracts the same penalties.

The outcome of an investigation and examination by the ICAC may be a recommendation for prosecution or disciplinary action. If the ICAC recommend to SAPOL that an individual should be investigated and a person is subsequently charged, then the person’s identity will be made public as in the ordinary course.

It is important to note that the ICAC does not have any power to lay a charge or prosecute a matter. This role will remain with existing law enforcement and prosecuting agencies.

The use that are made of answers that are given at the ICAC is a matter which can be concerning for public officers.  This is an issue that has caused much debate and litigation before the Courts.  In South Australia, if a person is required to answer a question before the ICAC and declares prior to answering the question that their answer may tend to incriminate them, then that answer is not admissible in evidence against them in a criminal proceeding.  In other words, as long as a person at the ICAC flags that their answer may be incriminating, then that answer cannot be used against them.

If a public officer receives a summons to appear at the ICAC, it is important that the summons is considered carefully.  The summons may include a notation prohibiting the public officer from disclosing any information about the summons – including its existence.  If there is such a notation on the summons and the person summoned discloses its existence (or any information relating to the summons), the maximum penalty is $5,000 or imprisonment for one year.  However, a summons with a notation prohibiting disclosure does not prevent a public officer from disclosing information relating to the summons to a legal practitioner for the purposes of obtaining legal advice and to a person or body in order to determine whether the person is entitled to payment of their legal costs.  It is imperative that any summons to appear at the ICAC is carefully scrutinised.

If you have been summonsed to appear at the ICAC, or need criminal law advice, contact your nearest TGB office