Statement regarding the Independent Commission Against Corruption Amendment Bill 2016

Tuesday 15 November 2016

To be attributed to the ICAC Commissioner, the Hon Megan Latham

At 3:30pm this afternoon, the Commission was provided with a copy of the Independent Commission Against Corruption Amendment Bill 2016. The Bill is inconsistent with the need for a strong ICAC and creates a fundamentally weaker organisation.

By significantly altering the structure and governance of the Commission, the Bill represents an unprecedented attack on the independence and effectiveness of the Commission as a leading anti-corruption agency.

The Bill effectively strips the Commission of the authority of a “Chief Commissioner”, and vests significant operational decisions and powers in each of the three commissioners which may be exercised independently of each other.

The most significant practical consequences of the provisions were not the subject of any discussion or submission before the ICAC Parliamentary Committee (or in any other forum) and find no expression in the Committee’s report.  
Given that the Bill represents a radical re-structure of the Commission and a complete departure from the constitution and functional operation of the Commission as it was originally conceived, there should have been a broad consultation process that included distribution of a draft Bill to relevant stakeholders, such as that undertaken for the purposes of the Law Enforcement Conduct Commission (LECC), before the introduction of the Bill into Parliament.

The ICAC Act currently provides that a commissioner can only be removed on particular grounds, none of which apply in the present circumstances. This Bill introduces a mechanism whereby any commissioner may be removed from office on the basis of amending legislation which purports to re-structure the Commission.

The Bill provides that upon commencement of the amending legislation, I would cease to hold office as Commissioner. There is no justification for this and none has been suggested. This is a significant matter that was not raised with the Commission by the Parliamentary Committee and has never been raised with me by the Premier.

The Bill should provide that the person holding office as Commissioner immediately before the commencement of the amending legislation is taken to have been appointed for the balance of his or her term of office as Chief Commissioner.

Structural consequences
The Bill makes provision for each of the commissioners, severally, to exercise all of the powers and functions of the Commission. The only matters that are reserved for the Chief Commissioner are:
•    agreement to the appointment of an Assistant Commissioner
•    the actual appointment of the CEO, but only after consultation with the two part-time commissioners
•    the appointment of the staff of the Commission, including conditions of appointment
•    the appointment of Counsel Assisting the Commission.                                    

With the exception of the decision to hold a public inquiry, each commissioner may independently exercise the Commission’s principal functions and powers relating to investigations, including the assessment of complaints, the decision to investigate a matter, not investigate a matter, cease investigating a matter, the disclosure of information and the furnishing of a report under s 14(2) of the ICAC Act or the furnishing of a public report under s 74 of the ICAC Act.

Also, any commissioner may delegate any of their delegable powers and functions to any officer of the Commission. All commissioners may independently direct the CEO and staff of the Commission, control the resources of the Commission, including make arrangements for the use of services of other government departmental staff.  The office of Chief Commissioner is essentially illusory. The proposed subsection 6(6) in the Bill, providing that the decision of the Chief Commissioner prevails in the event of any inconsistency in the decisions of the commissioners, is meaningless and practically unworkable because it assumes the Chief Commissioner is informed of every decision before it is made and that in some way the Chief Commissioner is able to remedy any damage that may be done in consequence of an imprudent decision after the damage has been done.

The functions and powers of the part-time commissioners ought only to be exercised upon the delegation of the Chief Commissioner. Further, the functions of the part-time commissioners ought not be extended to the independent direction of the Commission’s staff, its general and day-to-day operations and resources. Otherwise, the arrangements proposed in the Bill will:
•    substantially impact on the efficiency and functioning of the Commission
•    fracture the accountability of the Commission and undermine consistency in the Commission’s decision making
•    allow each commissioner to adopt independent and potentially inconsistent processes and procedures for the exercise of the Commission’s functions and powers, and
•    create a real risk that the Commission will become dysfunctional and internally competitive, by setting each commissioner up as an independent authority for the direction of the Commission’s staff, resources and exercise of powers.

There is no precedent for such a structure or power sharing arrangement for the head of any other anti-corruption commission within Australia or in any other government department or body.

Appointment of Commissioners
The Bill provides that the two commissioners who are not the Chief Commissioner may only be appointed after consultation with the Chief Commissioner. By contrast, the Law Enforcement Conduct Commission Act 2016 (s 18(2)) provides that the appointment of the two commissioners under that Act must only be with the concurrence of the Chief Commissioner. It is not clear why such a provision has been omitted from this Bill.

The need for the concurrence of the Chief Commissioner to any appointment of another commissioner preserves the Commission’s actual and perceived independence and given the extensive powers conferred on the two part-time commissioners, this is essential because otherwise there exists the appearance – if not the reality – of political considerations impacting on the appointment of those commissioners. It is critical that the Chief Commissioner has complete confidence in the ability of part-time commissioners to fulfil their responsibilities.

Media contact: ICAC Manager Communications & Media Nicole Thomas 02 8281 5799 / 0417 467 801