Awabakal Local Aboriginal Land Council - allegations concerning directors of the Board and others (Operation Skyline)

Findings of corrupt conduct

The ICAC found that Richard Green engaged in corrupt conduct by knowingly participating in a dishonest scheme with Nicholas Petroulias, Debbie Dates and Despina Bakis that involved him acting contrary to his public official duties as an Awabakal Local Aboriginal Land Council (ALALC) board member and deputy chairperson in relation to the purported sale and/or development of properties owned by the ALALC as a means to wrongfully confer a benefit on himself and others.

The ICAC found that Ms Dates engaged in corrupt conduct by knowingly exercising her public official functions as an ALALC board member and chairperson of the ALALC board partially in connection with the Sunshine and Advantage transactions to favour the interests of Mr Petroulias, Mr Green and Ms Bakis and to the detriment of the ALALC.

The ICAC found that Mr Petroulias engaged in corrupt conduct by knowingly instigating and participating in a dishonest scheme with Mr Green, Ms Dates and Ms Bakis that involved Mr Green and Ms Dates acting contrary to their public official duties and involving the purported sale and/or development of properties owned by the ALALC as a means to wrongfully confer a benefit on himself, Mr Green and Ms Bakis.

The ICAC found that Ms Bakis engaged in corrupt conduct by knowingly participating in a dishonest scheme with Mr Petroulias, Mr Green and Ms Dates that involved Mr Green and Ms Dates acting contrary to their public official duties and involved the purported sale and/or development of properties owned by the ALALC as a means to wrongfully confer a benefit on herself, Mr Petroulias and Mr Green.

Recommendations for prosecutions

The Commission must seek the advice of the Director of Public Prosecutions (DPP) on whether any prosecution should be commenced. The DPP determines whether any criminal charges can be laid, and conducts all prosecutions. The Commission provides information on this website in relation to the status of prosecution recommendations and outcomes as advised by the DPP. The progress of matters is generally within the hands of the DPP. Accordingly, the Commission does not directly notify persons affected of advice received from the DPP or the progress of their matters generally.

The Commission is of the opinion that consideration should be given to obtaining the advice of the DPP with respect to the prosecution of:

• Richard Green for offences of fraud pursuant to section 192E of the Crimes Act 1900 (“the Crimes Act”), of corruptly giving commissions pursuant to section 249B of the Crimes Act, the common law offence of misconduct in public office and the offence of conspiracy to defraud
• Nicholas Petroulias for offences of fraud pursuant to s 192E of the Crimes Act, of corruptly receiving commissions pursuant to s 249B of the Crimes Act, the common law offence of aiding and abetting misconduct in public office and the offence of conspiracy to defraud
• Despina Bakis for offences of fraud pursuant to s 192E of the Crimes Act, of aiding and abetting the receipt or giving of corrupt commissions pursuant to s 249F of the Crimes Act, the common law offence of aiding and abetting misconduct in public office and the offence of conspiracy to defraud.

Recommendations for disciplinary action

The Commission has not made any recommendations regarding disciplinary action in this investigation.

Recommendations for corruption prevention

The Commission makes the following 15 corruption prevention recommendations to help improve systems and prevent the conduct identified in the investigation from recurring.

Recommendation 1

That the Awabakal Local Aboriginal Land Council (ALALC) includes the following provisions about board meetings in its Model Rules:

• The ALALC provides reasonable notice for all board meetings. This requires at least seven (7) days clear notice to all board members in the method approved by the board.
• If the board wishes to call an extraordinary meeting at shorter notice, a two thirds majority of board members must agree to the proposed date and time for the meeting, and the ALALC must maintain a record of how and when it contacted, or attempted to contact, board members.

Recommendation 2

That the Minister for Aboriginal Affairs reviews the funding of the Office of the Registrar of the Aboriginal Land Rights Act 1983 (“the ALR Act) to ensure:

• that the registrar has the capacity to undertake the full range of investigative and enforcement options available in relation to misconduct by board members and LALC staff
• that the registrar has sufficient resources to fulfil its role in building capacity in LALCs.

Recommendation 3

That the Minister for Aboriginal Affairs, the NSW Aboriginal Land Council (“the NSWALC”) and the registrar of the ALR Act discuss and implement legislative or policy measures that protect chief executive officers (CEOs) from arbitrary dismissal or without due process. Among other things, this discussion should consider requiring councils to provide reasons for dismissing a CEO and creating powers for the registrar or other entity to, in certain circumstances, approve or otherwise intervene in the proposed dismissal of a CEO.

Recommendation 4

That the ALALC devises an outline of the skill mix required of board members, including an ability to understand financial reports and contracts.

Recommendation 5

That persons interested in standing, or intending to stand, for a position on the board of the ALALC be required to attend an information meeting prior to board elections where:

1. roles, legal duties and responsibilities of a board member are explained at the information meeting
2. examples of matters that can arise, and the legislation, policies and procedures board members must follow when determining a course of action, are discussed.

Recommendation 6

That the ALALC prepares a checklist of legal duties and responsibilities which can guide board members during meetings. The checklist can be sourced from the ALR Act, the Regulation, the Mandatory Governance Training manuals, and ALALC internal policies and procedures.

Recommendation 7

That the ALALC implements an electronic document and records management system with version and permission controls, allowing it to manage and monitor the creation, alteration and deletion of records.

Recommendation 8

That the typed minutes of ALALC meetings:

• accurately reflect the discussions held, including board members’ views for or against proposals and motions
• are saved to the electronic document and records management system.

Recommendation 9

That the ALALC audio-records all board meetings and saves the recordings into its electronic document and records management system.

Recommendation 10

That the ALALC keeps a register of contracts for all transactions, including commercial, rental and employment contracts, and the engagement of consultants. This register should:

• be saved into the ALALC’s electronic records management system
• have version and permission controls to enable the ALALC to determine who has accessed or made changes to it
• be updated as new contracts are executed
• be maintained at the ALALC, and made available to the ALALC’s legal advisor
• be viewed and verified by the Eastern Zone office periodically during the Risk Assessment System process
• archive contracts that are no longer operational.

Recommendation 11

That the ALALC, in conjunction with the NSWALC, develops a due diligence checklist and procedure that is followed when developers and other interested parties propose a land dealing. Among other things, the checklist may require parties with an interest in ALALC land to:

• put a brief outline of their proposal in writing
• identify all relevant personnel
• include information such as:
  • a company name
  • an Australian Business Number or Australian Company Number
  • licences and qualifications held by the proponents
  • relevant industry experience
• acquaint themselves with the land dealing
• provisions in the ALR Act.

Recommendation 12

That the ALALC considers conducting open-source checks on websites including the Australian Business Register, Australian Securities and Investments Commission and NSW Office of Fair Trading to verify information provided by parties involved in land dealings.

Recommendation 13

That the NSWALC and the registrar consider whether the corruption prevention recommendations made in this report should be applied to other LALCs and whether the NSWALC and the registrar should collaborate to develop an education program that addresses the findings and recommendations in this report.

Recommendation 14

That the NSWALC extends the questions concerning “Property” in the Risk Assessment System to include “Is the LALC in discussion(s) with any third parties about potential land dealings in which any agreement(s) would be conditional on the LALC obtaining necessary approval under the ALR Act?”

Recommendation 15

That the ALR Act be amended to require LALCs to notify the NSWALC, in writing, when specific proposals of land dealings, that would require approvals under section 42G of the ALR Act, come before the board of the LALC for its consideration. The minutes of the meetings at which the land dealing proposal is discussed will record who is responsible for notifying the NSWALC of the proposal.

Responses to ICAC recommendations

The action plans posted below have been provided by Awabakal Local Aboriginal Land Council (ALALC), Registrar of the Aboriginal Land Rights Act, NSW Aboriginal Land Council and The Hon. Ben Franklin MLC in response to the ICAC’s recommendations. Their publication here is to show the status of the responses. It does not constitute approval or endorsement by the Commission.

Action plan - Awabakal Local Aboriginal Land Council (ALALC)

Action plan - Registrar of the Aboriginal Land Rights Act

Action plan - NSW Aboriginal Land Council

Action plan - The Hon. Ben Franklin MLC