The Independent Commission Against Corruption (ICAC) recently undertook an inquiry into an attempted bribery of a Warringah Council Officer. The incident showcased prompt and appropriate reporting of misconduct and also displayed a high level of cooperation between ICAC and the Council, and also serves as a reminder of the processes and procedures Councils should employ where corrupt conduct is identified. In this regard, the Council Officers involved were found in the ICAC report to have acted with the ‘utmost propriety’ and the investigation was said to have been assisted by their ‘honesty and co-operation’.
The attempted bribery took place while two Council officers were undertaking a building inspection at a Dee-Why premises which had development consent for an Asian supermarket and butchery. A Student Planning and Development Assessment Officer, was leaving the premises after the construction work had been found to be unsatisfactory, when one of the owners attempted to slip an envelope of notes into his back pocket. When the Council Officer opened the envelope he immediately returned it and explained that he could not accept the money.
The owners, Mr Chen and Ms Sun, who had bought the premises for $1.5 million and as a result were paying a substantial amount of interest on a loan. Building work and Council approvals meant that the couple were not receiving any income from the business. Council received the initial request for the building inspection on 30 January 2009 and, although the initial date for the inspection was set for 16 February 2009, the inspection was rescheduled a number of times due to the owners requesting further time to complete work. As a result the final inspection did not take place until 10 March 2009. As a business cannot trade until a building inspection is granted, by this date the owners were eager to expedite the process. There is no indication in the ICAC report that Council unreasonably delayed in undertaking the inspection.
Reporting of the incident
The bribery attempt was reported swiftly and appropriately by all of those involved. The Student Officer immediately reported the incident to his Manager, who had accompanied him to the site but had been walking several metres ahead when the incident occurred. The Manager immediately reported the incident to the Council’s Internal Ombudsmen. The Internal Ombudsmen
then reported the incident promptly to ICAC, pursuant to section 11 of the ICAC Act.
ICAC responded by authorising an undercover, or ‘controlled’ operation. This authorisation under the Law Enforcement (Controlled Operations) Act 1997 (NSW) permits certain people to engage in specified activities that would otherwise be unlawful.
As part of the operation, the Manager attended a second inspection of the store ‘wired’ with listening devices. He carried out the inspection, and again found the site to be unsatisfactory. During this incident, the Owners gave the Manager another envelope, and later in the conversation one of the Owners hopefully asked whether they could open the next day. The Manager accepted the envelope as part of the operation and it was later found to contain four $50 notes. A third inspection was then set up and when one of the Owners again gave the Council Manager an envelope containing a further $200, he added: “just some lucky notes.”
The ICAC inquiry
Following the controlled operation ICAC considered the incident serious and determined that it was in the public interest to conduct an investigation to determine whether corrupt conduct had occurred and whether there were corruption prevention issues to be addressed. ICAC also found that, if established, the incident provided an opportunity to send a strong message to all members of the community that providing gifts or money to public officials is unlawful and will not be
The Hon Jerrold Cripps QC presided over the inquiry which found that the Owners gave envelopes of money to Council officers with the intention of facilitating the building inspection approval for the Supermarket. While the Owners admitted that the money had been intended as a bribe, one of the Owners added that the money was ‘lai see’ or ‘lucky money’, a name for monetary gifts given in certain Asian cultures during holidays or special occasions.
It was raised on behalf of the Owners that they had perceived Council’s requirements as unreasonable, and as the interest repayments were a huge amount of money for a working couple, this led them to offer the money. The Hon Jerrold Cripps QC found that while these issues may be relevant to sentencing, they were not relevant to his decision to recommend seeking the
advice of the Director of Public Prosecutions (DPP) in relation to prosecution.
The Hon Jerrold Cripps QC also responded to the argument that they were less culpable due to the acceptance of this practice in another culture by saying:
“To suggest they bring that sort of cultural baggage when they come to Australia, I think is not very charitably disposed to other Chinese people who come to this country who don’t behave this way.”
The ICAC inquiry concluded that the conduct could constitute an offence of corruptly offering an inducement contrary to the Crimes Act 1900 (NSW) and accordingly, recommended seeking the advice of the DPP with respect to prosecuting the couple. If your Council is having a “lucky” issue, please contact Todd Neal on 02 8223 4117.