On 4 December 2008, Parliament passed amendments to the Independent Commission Against Corruption Act 1988 (“the Act”). The amendments commence on assent.

Some of the amendments impose a duty on each Minister under section 11 of the Act to report any matter that the Minister suspects, on reasonable grounds, concerns or may concern corrupt conduct.

A Minister may comply with this obligation either by reporting the matter to the ICAC him or herself or by reporting the matter to the head of any agency responsible to the Minister.

If a matter is reported to the Minister's agency head, that officer is in turn under an obligation under the Act to report any matter the officer suspects, on reasonable grounds, concerns or may concern corrupt conduct to the ICAC.

If a Minister generally wishes to comply with the duty by referring all corruption allegations to the Minister's agency head, the Minister should put in place arrangements to ensure that referrals are made only where this is an appropriate course to take.

In circumstances where this might not be appropriate (for example, where the allegations relate to the conduct of the Minister's agency head), the Minister should:

1. form his or her own view as to whether the allegations should be reported to the ICAC under the test set out above, and, if they should, the Minister should report the matter to the ICAC; or
2. if there is another agency responsible to the Minister and it is appropriate to refer the allegations to the head of that agency, then the Minister may refer the allegations accordingly.

The option of referring corruption allegations to the Department of Premier and Cabinet is no longer available to Ministers if the allegations meet the test for referral to ICAC set out above. The Department remains available, however, to advise Ministers in relation to their obligations under the Act and in relation to allegations of corrupt conduct generally.

Under section 53 of the Act, the ICAC has the power to refer matters for investigation or other action to any person or body the ICAC considers to be appropriate in the circumstances. The ICAC may, therefore, choose to continue to refer matters to the Department of Premier and Cabinet for investigation or other action, even if the Department is not the agency that originally referred the relevant matter to the ICAC. For example, the Department of Premier and Cabinet has investigated allegations against agency heads following referrals from the ICAC and could continue to do so if the ICAC considered that to be appropriate.

The duty imposed on Ministers by the amendments extends to possible corrupt conduct that occurred before the commencement of the amendments. The duty applies, therefore, to allegations brought to a Minister's attention now or in the future, even if they concern possible corrupt conduct which is alleged to have taken place in the past.

The ICAC publication “Section 11 Report guidelines for principal officers – Reporting corrupt conduct to the ICAC” (available at www.icac.nsw.gov.au under “Publications”) provides guidance as to how to apply the “suspects on reasonable grounds” test and other useful information. It was published before Ministers were made subject to the duty to report and so it does not specifically refer to Ministers. Its guidance, however, is now of relevance to Ministers.

Consistent with the ICAC publication and the Department of Premier and Cabinet's approach to date, Ministers and agency heads are encouraged to err on the side of caution and report allegations to the ICAC if they are in any doubt as to whether or not the allegations satisfy the test for reporting.

Nathan Rees MP
Premier