On the 1st September 2013 the Independent Commissioner Against Corruption Act 2012 (ICAC Act) came into operation. The ICAC Act created two offices; the Office for Public Integrity, known as the OPI and the Independent Commissioner Against Corruption, commonly referred to as ICAC.
On the 19th February 2013, Federal Court Judge, The Hon. Bruce Lander QC was appointed the first Independent Commissioner, to take effect on the 1st September 2013. He is responsible for both offices.
Since 1 September 2013 all Public Authorities and all Public Officers have a duty to report to the OPI, any conduct they reasonably suspect raises a potential issue of corruption or ‘serious or systemic’ misconduct or maladministration in public administration. A failure to report such a suspicion would itself amount to misconduct.
Schedule 1 of the ICAC Act defines Public Authorities and Public Officers and that definition is very wide. It includes all members of the University Council, all university staff and people performing contract work for the university.
There are penalties of $10,000 or 2 years imprisonment for preventing or hindering someone in making a complaint or for making false or misleading statements or reports.
The ICAC Act does not create any new offence of corruption but uses corruption as a generic term to include existing criminal offences including
- bribery or corruption of public officers
- threats against public officers
- abuse of public office
Misconduct occurs when a public officer contravenes a code of conduct and constitutes grounds for disciplinary action. Maladministration is conduct that results in an irregular and unauthorised use of public money, or substantial mismanagement of public resources. It includes conduct resulting from impropriety, incompetence or negligence.
Some examples of such acts at Australian universities that have been in the press include:
- family member of Vice-Chancellor enrolled in Medicine without satisfying admission requirements (significant loss of reputation and public confidence - University of Queensland)
- false and inflated invoices raised for maintenance services not performed ($30m, Victoria University);
- misuse of student funds for unauthorised travel and postgraduate degrees for staff (several hundreds of thousands of dollars, Monash);
- misappropriation of University funds via unauthorised access to online banking platform ($27m, Flinders)
The ICAC Directions and Guidelines create obligations on the University, its officers, employees and contractors to report matters of misconduct or maladministration that are ‘serious or systemic’. What is serious or systemic misconduct or maladministration is a matter of judgement.
Relevant factors to consider in an assessment of whether the matter is serious or systemic may include:
- the nature and circumstances of the allegations (including the number of allegations, the degree of organisation and planning - eg steps taken to cover up conduct);
- the status of the person(s) involved;
- the harm (or potential harm) to an individual or the University resulting from the matter, including physical, financial or other harm; and
- whether the matter is widespread, involves more than one agency and/or occurs on a frequent basis.
A matter may be considered serious if it:
a) involves a senior University officer;
b) involves alleged misconduct or maladministration that has resulted in a substantial loss or damage to assets;
c) involves allegations that would, if proved, bring the University into disrepute; or
d) is otherwise of particular prominence or importance.
A matter may be considered systemic if it:
a) causes widespread disruption to services or programs;
b) affects a number of persons;
c) is spread throughout the University or is otherwise accepted or condoned; or
d) involves a large sum of public money.
The OPI will assess all reports and make a recommendation to the Commissioner on how to proceed. Although the Commissioner gives due consideration to each recommendation made to him by the OPI, he is not bound by that recommendation and may deal with a matter in accordance with his own assessment.
If the matter raises a potential issue of corruption in public administration, the matter will be investigated either by the Commissioner or by the South Australian Police or the Police Ombudsman. In any circumstance the Commissioner will head the investigation.
If the matter raises a potential issue of serious or systemic misconduct or maladministration, the matter will be referred to the Ombudsman, Police Ombudsman, Commissioner for Public Sector Employment, or to the relevant Public Authority (ie the University) to be dealt with in accordance with directions and guidance given by the Commissioner.
In some cases the Commissioner will exercise the powers of the Ombudsman, Police Ombudsman or Commissioner for Public Sector Employment and deal with the matter himself.
The Independent Commissioner Against Corruption is concerned with the three types of behaviour mentioned here. If you are doing the right thing, then there is no need to change or worry.
All matters reported to the OPI are treated confidentially and cannot lawfully be discussed or disclosed without the authorisation of the Commissioner. Information that requires an authorisation is anything that may identify someone who:
- intends to, or has made, a complaint;
- has, is or was the subject of a complaint; or
- has or will provide information as part of an investigation.
It is an offence to ‘publish’ or ‘cause to be published’ such information via printed or electronic means or by public announcement (such as by radio, television or the Internet). This is intended to protect the reputation of individuals.