Committee on the Independent Commission Against Corruption

About this Item
SpeakersTerenzini Mr Frank; O'Dea Mr Jonathan
BusinessCommittee, Report, REP

Page: 6089

Report: Review of the 2005-2006 Annual Report of the Independent Commission Against Corruption

QuestionThat the House take note of the reportproposed.

Mr FRANK TERENZINI (Maitland) [10.10 a.m.]: I am pleased to contribute to the debate on the report of the Committee on the Independent Commission Against Corruption entitled "Review of the 2005-2006 Annual Report of the Independent Commission Against Corruption". This the first inquiry of the committee on the Independent Commission Against Corruption I have chaired. I am pleased to be the first speaker in five years to recommence take-note debates on committee reports.

The committee focused on two main areas. First, it focused on the delay between the time the Independent Commission Against Corruption [ICAC] has finished its inquiry and forwarded a brief of evidence to the Office of the Director of Public Prosecutions [DPP] for its consideration, together with a recommendation for consideration as to whether a criminal charge should be laid, and the receipt of the DPP's final advice on whether there is sufficient evidence to lay a criminal charge. Second, the committee focused on the extent to which the ICAC should undertake further investigations after having been requested by the DPP to seek further evidence.

The ICAC operates under the Independent Commission Against Corruption Act 1988, which empowers the commission to investigate corruption. The commission's main focus is to investigate and expose corruption, prevent corruption, educate the public, and educate the public service on measures that can be taken to avoid corruption. The ICAC does not make findings of guilt or impose punishment; it simply makes findings as to whether persons acted corruptly under section 8 of the Independent Commission Against Corruption Act.

Importantly, the ICAC collects admissible evidence for the DPP. However, this is not a primary function of the ICAC but a secondary function. I will return to that matter in a moment. The Office of the DPP operates under the Director of Public Prosecutions Act 1986. Its primary function is to initiate criminal proceedings and to prosecute matters under that Act. The DPP does not have an investigatory function. It sends requisitions to the New South Wales Police Force and, as in this case given that the ICAC conducted the investigation, to the ICAC.
Earlier I referred to the issue of delay. I stress that such delays do not occur often, but they are referred to in the reports and the committee is concerned about them. I refer to two case studies. The first case was an ICAC investigation into the dealings of Greyhound Racing Authority officials with racing greyhound owners and trainers, which was named Operation Muffat. Some 1,508 days elapsed from when the ICAC delivered a brief of evidence to the Director of Public Prosecutions and when it received advice. That is a lengthy period and raises concern about the delay. In that time the DPP sent out numerous requisitions to the commission, which were responded to.

The second case related to Operation Agnelli. This involved an investigation that centred on the conduct of officers of the New South Wales Grain Board. The delay in that case was 907 days from the time the ICAC submitted the brief of evidence to the DPP until the time of response. In both cases there was insufficient evidence to institute criminal proceedings. The delays vary widely from 11 days to a maximum of 1,508 days. Delays can cause significant problems. For example, potential witnesses may forget their evidence, may become ill, may pass away, may leave the State or may even leave the country. This makes it very difficult to conduct a successful prosecution.

A memorandum of understanding controls the relationship between these two agencies that perform fundamentally different operations under different Acts. That memorandum of understanding has been in place since about 2005. It is an agreement reached by both agencies about how they will conduct their separate functions but at the same time share a relationship that efficiently reduces delay. The memorandum also covers requisitions and briefing material for both agencies. Some years ago Bruce McClintock, SC, conducted an inquiry into the operation of the ICAC that addressed this very issue. Mr McClintock's report states:
      Delay is (at least in part) in consequence of separating the investigation function from that of prosecution. The lack of clarity as to who is ultimately responsible for initiating criminal proceedings has contributed to a culture where neither agency accepts that it is their primary responsibility to initiate and conduct timely and effective criminal prosecutions arising out of ICAC investigations.
The committee noted that the McClintock report stated that if administrative measures could not be arrived at between the two agencies to achieve a better relationship between them, legislative provisions would have to be enacted or the Act would have to be amended to remedy the situation. The report indicates clearly that the committee will continue to monitor the post-investigation stage of ICAC inquiries to see how delays eventuate. The committee will also monitor situations when ICAC is required to conduct further investigations as a result of requisitions by the DPP. If necessary, the committee will conduct a further inquiry to obtain evidence to see how the situation can be remedied.

It is important to note that at present the two agencies are working together to arrive at an updated memorandum of understanding. The committee will consider that updated memorandum of understanding when it conducts its next investigation or inquiry into how the matter is proceeding. I stress that this is in no way a criticism of either agency or how they are operating under their own respective legislation. One must appreciate that these two agencies have their own jobs to do, but they must also maintain a relationship with each other.

I note also that ICAC, which is doing an excellent job under very difficult circumstances, is moving towards preparing admissible evidence during its investigations. It is not waiting until the end of its investigation before preparing what is held at that stage to be an admissible brief of evidence, but preparing it along the way. This may reduce instances when the DPP requires further evidence, which in turn causes the ICAC to conduct further investigations post inquiry. It is hoped that the new memorandum of understanding will alleviate that problem. It is also hoped that the new memorandum of understanding will reduce delay when the DPP is required to give advice.

This is a very significant point. If there is sufficient evidence to pursue a prosecution against people who are found to have acted corruptly, it is important that the ICAC is able to submit the brief of evidence to the DPP and have the matter expedited efficiently so that charges can be laid. There is also a question as to whether the ICAC should be responsible for instituting those criminal proceedings, and that issue is being considered. There may be recommendations for legislative change, but that remains to be seen. At this point the committee intends to monitor the situation very closely to ensure that justice delayed is not justice denied.

Mr JONATHAN O'DEA (Davidson) [10.20 a.m.]: I am also a member of the Committee on the Independent Commission Against Corruption. All committee members are working cooperatively and positively under the chairmanship of the member for Maitland. The member for Maitland has summarised the main issues well, in particular the issue of time delays with the Director of Public Prosecutions [DPP] commencing prosecutions, which is of concern and is being addressed. I also place on record the good work of the staff assisting the committee.

QuestionThat the House take note of the report put and resolved in the affirmative.

Report noted.