Mandatory Reporting Requirements under the ICAC Act
LG Leader July 2017
We note a recent comment from the Independent Commissioner Against Corruption (“the Commissioner”), as reported in the Advertiser on 25 May 2017, to the effect that “sensitive” Elected Members should stop complaining about each other and lodging official protests about “minor” matters with the State’s Office for Public Integrity (“the OPI”). The Commissioner was speaking before the Crime and Public Integrity Committee at the time, and, as reported, suggested that some complaints are made “because they [the Elected Members] dislike the other person” and “they are too sensitive, so to speak, and they complain about things that really don’t require the expense of public resources to investigate.”
However, it is to be recalled that the Directions and Guidelines (“the Directions”) issued by the Commissioner pursuant to section 20 of the Independent Commissioner Against Corruption Act 2012 (“the ICAC Act”), oblige all public officers (unless otherwise stated) to report to the OPI any matter that is reasonably suspected of involving corruption or serious or systemic misconduct and maladministration in public administration.
The definition of corruption under the ICAC includes “any other offence….committed by a public officer while acting in his or her capacity as a public officer…” and the definition of misconduct includes a “contravention of a code of conduct by a public officer while acting in his or her capacity as a public officer that constitutes a ground for disciplinary action.”
Elected Members are, of course, “public officers” for the purposes of the ICAC Act and the most recent amendments to the Local Government Act 1999 (“the Act”) introduced several provisions, breach of which, now constitutes a criminal offence. For example, section 62, the obligations to not disclose information or a document in relation to which there is an order of a council in effect under section 90, and section 74, requiring a Member to inform the meeting of a material conflict of interest at the time a matter is discussed, and immediately leave the meeting room. Elected Members are also required to observe the Code of Conduct for Council Members (“the Code”) in accordance with section 63 of the Act.
Accordingly, while the Commissioner might consider that the reporting provisions under the Code are being “misused” in certain circumstances, as currently drafted, the ICAC Act operating with the Directions require an Elected Member (or indeed any other public officer) who holds a “reasonable suspicion” that a Member has breached a criminal offence provision, or otherwise has committed serious or systemic breaches of the Code, to make a report to the OPI. Relevantly, the Commissioner notes in the Foreword to the Directions that “failure to comply may itself amount to misconduct and the public officer may be liable for disciplinary action.”
A link to the Advertiser article can be found here: