Changes to the Independent Commissioner Against Corruption Act 2012 (ICAC Act) came into effect 7 October 2021, making the Office for Public Integrity (OPI) a standalone independent body and creating an Independent Commission Against Corruption.
The ICAC Act is now the Independent Commission Against Corruption Act 2012.
As public servants, our responsibilities to report corruption, misconduct and maladministration in public administration remain and reporting mechanisms have not yet changed.
Reports can still be made to OPI.
The changes set out below do not impact on existing reporting requirements in accordance with the Police Complaints and Discipline Act 2016.
Corruption in public administration
Complaints about corruption in public administration will continue to be investigated by the ICAC.
We continue to have a legal obligation to report any conduct that we think could be corruption in public administration to the OPI.
A number of definitions in the ICAC Act have been changed, including the definition of what is corruption in public administration.
Conduct that constitutes an offence against the Criminal Law Consolidation Act 1935 committed by a current (or former, or soon to be) public officer while acting in their capacity as a current (or former, or soon to be) public officer is only considered to be corruption in public administration if it is an offence relating to public officers, including:
- abuse of public office
- bribery or corruption of public officers
- threats or reprisals against public offices
- demanding or requiring a benefit on the basis of public office
- offences relating to appointment of public office.
Any conduct that is an offence, or an attempt to commit an offence, against the Public Sector (Honesty and Accountability) Act 1995, the Public Corporations Act 1993 or the Lobbyists Act 2015 is also corruption in public administration.
This includes conduct that constitutes an offence of breaching the duty of all public sector employees to act honestly at all times in the performance of their duties - whether within or outside the state.
Misconduct and maladministration in public administration
Complaints about misconduct and maladministration in public administration will no longer be investigated by ICAC, but will be referred to the Ombudsman for investigation.
Under the changes to the ICAC Act, you can still report maladministration or misconduct in public administration to OPI.
The definition of maladministration in public administration has not changed. However, the definition of misconduct in public administration has changed.
'Misconduct in public administration' under the ICAC Act now means an intentional and serious contravention of a code of conduct by a public officer, while acting in their capacity as a public officer, that constitutes a ground for disciplinary action against the officer.
Under the changes, conduct will only constitute misconduct in public administration if it is intentional and serious.
Previously misconduct in public administration under the ICAC Act was:
- 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 against the officer, or
- other misconduct of a public officer while acting in his or her capacity as a public officer.
Under the changes to the ICAC Act, there is no longer any reference to the concept of misconduct and maladministration being serious or systemic. This means that if you suspect any conduct to be misconduct or maladministration in public administration, there are no circumstances in which you are mandated to report it under the ICAC Act, but you still can report it to OPI.
Under the changes to the ICAC Act, OPI and the Ombudsman must issue directions and guidelines about the reporting of corruption, misconduct and maladministration in public administration.
Once they are published, further information will be provided to you about any changes to your responsibilities in reporting corruption, misconduct and maladministration and what the changes mean for you.
Advice can be sought from the Crown Solicitor's Office by emailing the Public Law Section at AGDCSOPublicLawSection@sa.gov.au
As always, we hold ourselves to the highest standards of professional integrity and are bound by the Public Sector Code of Ethics.
To find out more information about the role of the OPI, visit the OPI website.