The ongoing Independent Commission Against Corruption (ICAC) inquiry involving the Obeid family and ex-Minister Ian Macdonald has featured prominently in the media. While ICAC appears to be very similar to a court, there are some key differences.

Here are some things you should know about the workings of ICAC.

What can ICAC investigate?

ICAC is only able to act on reports of conduct that:

• involve or affect a NSW public official or NSW public sector organisation
• amount to the dishonest or partial exercise of public official functions, or could adversely affect the exercise of official functions
• are serious enough to constitute a criminal offence or warrant disciplinary action or, for members of the NSW Parliament and local government councillors, amount to a substantial breach of an applicable code of conduct.

Although corrupt conduct must involve a NSW public official or organisation, private citizens can engage in corrupt conduct by committing wrongdoing that affects or influences a NSW public official or by colluding with that public official. Private citizens may be called as a witness before ICAC whether or not they themselves have engaged in corrupt conduct.

Investigation vs. public inquiry

ICAC conducts investigations which may involve compulsory examinations and public inquiries. However, they do not necessarily proceed to this format. Most investigations are conducted in private. ICAC determined that it was in the public interest for Operations Jasper, Acacia & Indus to proceed to a public inquiry.

Raids and the compulsory production of documents

ICAC has wide powers to enter public premises without the need for a search warrant. Public premises are premises occupied or used by a public authority or public official in that capacity. ICAC can inspect and take copies of any documents or things in those premises.

At the investigation stage, ICAC has broad coercive powers to obtain documents from any person, and to require a public authority or official to produce a statement of information.

Privilege

The grounds of privilege which apply in court proceedings, including legal professional privilege, also apply at the investigation stage in relation to the production of documents and information. ICAC determines whether the privilege applies. However, public interest privilege, any privilege which would otherwise attach to a public authority or official, and any duty of secrecy or restriction on disclosure applying to a public authority or official cannot be invoked at the investigation stage.

However, at the compulsory examination and public inquiry stage, if a witness has been summoned to appear at ICAC, the only ground of privilege that is available to the witness is legal professional privilege specifically in relation to any advice they received for their appearance at ICAC.

Evidence

The normal rules of evidence do not apply. ICAC can inform itself on any matter it considers appropriate and is far less formal and adversarial than a court.

Answering questions before ICAC

If called to a compulsory examination or public inquiry, a witness must:

• be sworn in or make an affirmation to tell the truth
• answer any relevant question put by the Commissioner
• produce any document required.

Failure to do so is an offence under the Independent Commission Against Corruption Act 1988 – punishable by fine and imprisonment. It is also an offence to give false or misleading evidence.

Self-incrimination

A witness at a compulsory examination or public inquiry is not excused from answering any question or producing any document on the ground of self-incrimination. However, if the witness objects to giving the answer or document, these answers or documents are not admissible in evidence against the witness in any civil, disciplinary or criminal proceedings.

Does the ICAC have the power to prosecute people?

No, but ICAC can make recommendations that the Director of Public Prosecutions give consideration to prosecuting individuals for criminal offences.

Part 4A of the Crimes Act 1900 (NSW) provides offences for corruptly receiving commissions or rewards, and other corrupt conduct. There are also residual common law offences of bribery and conspiracy to receive or solicit a bribe.

In 1988, the Minister for Corrective Services of NSW was sentenced to 10 years imprisonment by the Court of Criminal Appeal for the common law offence of conspiracy. He had conspired to receive money corruptly in exchange for the early release of prisoners on administrative licence.