National Integrity Spotlight – June 2024

9 July 2024
Cinzia Donald, Partner, Perth (Lavan) Kelly Griffiths, Partner, Melbourne Daniel Maroske, Partner, Brisbane Kathy Merrick, Partner, Sydney Jack Tipple, Special Counsel, Sydney

In this month’s edition of the National Integrity Spotlight, we consider the most recent updates from the NACC, including the decisions made in relation to the Robodebt referrals. We also provide details of the various reports released by the Senate Inquiry into management consultants, and State anti-corruptions bodies including the NSW ICAC, SA ICAC, NT ICAC and WA CCC. 

NACC Update

Referral and Assessment Update

The National Anti-Corruption Commission (NACC) continues to provide regular updates on the number of referrals received, the assessment process, and investigations underway. 

Key data from 1 July 2023 through to 30 June 2024 suggests that: 

  • 3,190 referrals were received; 
  • 2,443 referrals were excluded at the triage stage of assessment as they did not involve a Commonwealth public official or did not raise a corruption issue; 
  • 159 referrals are pending triage; 
  • 318 referrals are currently under assessment, including 29 under preliminary investigation; 
  • 269 referrals have been assessed; and 
  • 22 new investigations have been commenced, with a further eight which will be jointly investigated, and nine further investigations have been referred to other agencies with oversight from the NACC. 

The NACC has also indicated that: 

  • five matters are or have been before the courts, including two that have resulted in convictions, and one that has resulted in committal for trial;  
  • two matters are under consideration by the Commonwealth Department of Public Prosecutions;  
  • in one matter, the NACC has completed a final report with no corruption finding;  
  • final reports are being prepared in relation to seven further matters with no prosecutions occurring; and 
  • in seven further matters, there were no prosecutions and final reports will be prepared. 

NACC decision regarding Robodebt investigation  

On 6 July 2023, the NACC received referrals from the Robodebt Royal Commission concerning six public officials. Following its review, the NACC decided not to pursue corruption investigations against these officials. This decision was delegated from the Commissioner to the Deputy Commission to avoid a perception of a conflict of interest.  

The outcome was particularly influenced by five of the six officials being previously referred to the Australian Public Service Commission and the extensive investigation previously conducted by the Robodebt Royal Commission. The NACC determined that further investigation was unlikely to uncover significant new evidence, and that multiple investigations into the same matter could lead to inconsistent outcomes that would place undue burden on the individuals involved. The public interest of a further investigation was also considered by the NACC in its decision-making. 

Following the NACC’s announcement, the Inspector of the NACC, Gail Furness SC, indicated that more than 900 complaints had been received in response to the NACC’s decision. Ms Furness SC indicated that many of the complaints alleged corrupt conduct and maladministration by the NACC. As a result, the Inspector is expected to undertake her own investigation into the decision to not take any further action. 

Senate inquiry into management consultants releases final report 

In June 2024, the Senate released its final report in relation to its inquiry into the management and assurance of integrity by consulting services. The report makes 12 recommendations, including: 

  • that the Contract Management Guide and Supplier Code of Conduct be updated to insert a clause into government contracts requiring service providers to act in the public interest when delivering government work; 
  • the development of a central register for conflicts of interest breaches by contracted parties; 
  • that the Australian Law Reform Commission undertake a review of the legislative frameworks and structures of partnerships in Australia with particular focus on partnerships in excess of 100 partners; 
  • that the Parliament legislate to establish a Joint Standing Committee to review and approve consultancy and services contracts; and 
  • the publishing of biannual statements on the government’s expenditure on all consultancy contracts, worth $2 million or more, by APS departments and agencies. 

It was also noted that the Parliamentary Joint Committee on Corporations and Financial Services is currently undertaking a separate inquiry into issues including governance and compliance obligations, firm structure, the scope and power of disciplinary bodies, and the internal management of conflicts of interest.  

Western Australia Corruption and Crime Commission (WA CCC) 

WA CCC releases quarterly statistics on serious misconduct 

The WA CCC has released the 2023/24 quarter three statistics on serious misconduct. The overview provides insight into the number of notifications received, the number of allegations assessed and the outcomes of allegation assessments.  

In quarter three of 2023/24, 726 notifications were received by the WA CCC. This is consistent with previous quarters. Almost half of the notifications received came from the public, with approximately a quarter each coming from the Western Australian Police and the Western Australian public sector respectively. Of the notifications received regarding the Western Australian Public Sector, the most common allegations regarded the use of position for benefit/detriment, unlawful access of computer and assault. 

Of the 1,537 allegations assessed this quarter, 38% met the threshold of suspected serious misconduct. By contrast, only 12% of notifications received from the public met this same benchmark. Approximately half of all allegations assessed to meet the threshold of suspected serious misconduct were referred for further action.   

During the relevant reporting period, the outcomes of 335 allegations were recorded. About half of these outcomes were sustained across all government entities. Local improvement action was the most common response this quarter to sustained allegations. 

Report on internal governance and Main Roads WA investigation  

On 13 June 2024, the WA CCC tabled a report titled ‘Review of Main Roads investigation into misconduct by two managers’.  

In December 2019, Main Roads received an internal complaint that two managers had used their positions to corruptly gain a benefit. Main Roads engaged an independent investigator to address the alleged misconduct. The investigation concluded that both managers had colluded to manipulate the procurement process in favour of a relative and mislead Main Roads to fund training for the relative. The investigation led to the discovery of further issues relating to one of the managers’ purchasing activities. 

Upon receipt of the investigation, the WA CCC determined to undertake a further review of the matter and concluded that while Main Roads ensured a rigorous and independent investigation was undertaken, it appeared that broader organisational factors that enabled the wrongdoing were overlooked (e.g. lack of oversight and a review of internal controls). Main Roads has since taken appropriate steps to address the WA CCC’s recommendations.

A breach of procedure but not serious misconduct: An investigation into the first child death in custody in Western Australia 

On 12 October 2023, a 16-year First Nation’s inmate was found deceased in Casuarina Prison. As the first child to die in custody in Western Australia, the WA CCC conducted an investigation and tabled a report titled ‘An investigation into allegations of serious misconduct following the death of a young detainee in Unit 18 Casuarina Prison’. The report considered whether any public officer may have engaged in serious misconduct in the lead up to death. 

In its report, the WA CCC formed no opinions of serious misconduct, as no evidence suggested that any of the five Department of Justice Youth Custodial Officers (YCOs), nor the nurse contracted on at the relevant time, had committed an offence punishable by two or more years’ imprisonment in executing their duties. The offences that the WA CCC centred their investigation around included: 

  • falsification of a record by a public officer – including falsely completing a ‘tick and flick’ form indicating that a welfare check had been conducted on the cells in the unit. In this case it was found that the entries were completed by the YCOs inattentively, but not corruptly;   
  • act or omission causing bodily harm or danger – it was found that the failure to provide the deceased with paracetamol was not a failure to provide him with medical treatment to preserve his life; and 
  • failing to protect a child from harm – the report noted that the deceased’s cell was defective and had no running water, numerous self-harm threats had been made to YCOs during the evening, and Panadol and water was not provided on request. The WA CCC found that there was no available alternative cell, the self-harm threats were actioned immediately following receipt by the YCOs, and that whilst Panadol was not provided, food, clothing and access to effective medical treatment was available when required.  

The WA CCC found that there were breaches of Department of Justice procedures and policies during the night of the deceased’s self-harm, but no conduct constituting serious misconduct. 

South Australian Independent Commission Against Corruption (SA ICAC)  

Corruption vulnerabilities in the Planning and development system 

The SA ICAC is tackling corruption vulnerabilities in the planning and development system. Commissioner Ann Vanstone KC noted that the sector’s complexity, discretionary decision-making, and subjective assessments create significant opportunities for corruption. Influencing planning officials can substantially affect land and development values, leading to potential impropriety.  

The SA ICAC has observed corruption risks through various complaints and investigations, with a strategic assessment of the Planning, Development and Infrastructure Act 2016 identifying potential weak points.  

With increasing activity in the planning sector due to housing pressures, the risk of corruption is expected to rise. The SA ICAC will provide stakeholders with observations and recommendations. If significant vulnerabilities are found, evaluations under section 40 of the ICAC Act 2012 (SA) may be initiated. 

Report on corruption risks in public sector tabled  

On 4 June 2024, the SA ICAC tabled its report, ‘Buying trust: Corruption risks in public sector’, in Parliament. The report synthesises research by the SA ICAC commencing March 2023 and highlights the vulnerability of public sector procurement to corruption.  

Drawing on a service of procurement officers and state sector suppliers, stakeholder submissions, and insights from various integrity agencies, the report illustrates corruption risks in public sector procurement and provides case studies of common examples. Although the strength of procurement practices in South Australia has improved, the report identifies 18 recommendations to assist public authorities in preventing corruption. These recommendations intend to address key issues of public sector procurement corruption risk, including increasing procurement officer awareness, improving resources to conduct regular audits, creating management plans for conflicts of interest, and providing necessary training to procurement officers.  

The report also notes that suppliers are often hesitant to report suspicions of corruption due to fears of jeopardising future contracts – a reluctance that can discourage fair competition and bidding.  

New South Wales Independent Commissioner Against Corruption (NSW ICAC)  

Report on corrupt conduct risks in the NSW public sector 

In June of 2024, the NSW ICAC released its annual report on the most common and systemic corruption issues that NSW public sector agencies face.  

NSW ICAC’s previous annual reports have consistently shown that the sectors of human resources and staff administration are subject to the highest numbers of accusations of misconduct. The 2024 report identified recurring issues associated with recruitment practices, outside employment arrangements, and timesheet fraud. For example, the report outlined that nearly 10% of reported matters between mid-2017 to mid-2022 were associated with potential misconduct in recruitment processes. The report emphasises the importance of implementing robust controls and oversight mechanisms in recruitment and procurement activities to effectively mitigate corruption risks and ensure transparency and fairness in hiring practices. 

The second most reported workplace area related to the corrupt allocation of funds, materials and services. In particular, the report found that the most common forms of misconduct were associated procurement and contract management, the theft or misuse of public resources and the management and misuse of information. For example, the report identified that it had received many complaints over the five-year review period which had alleged the misuse and theft of public resources and that such allegations were linked to a third of the complaints assessed for the report. 

The report also examined issues relating to conflicts of interest, bribery, and gifts. The report identified that more than a third of all matters reported to NSW ICAC relate to personal interests. According to the report, conflicts of interest most commonly arise in relation to recruitment, procurement and outside employment arrangements. 

Northern Territory Independent Commissioner Against Corruption (NT ICAC) 

Operation Jupiter Report released 

The NT ICAC commenced ‘Operation Jupiter’, being an investigation into the conduct of the former Chief Minister, the Honourable Michael Gunner (Mr Gunner), during the caretaker period in the lead-up to the 2020 General Election in the Northern Territory.  

Two allegations of improper conduct have been made against Mr Gunner. The first allegation alleges misconduct in the lead-up to the Election, whereby staff members of the Office of the Chief Minister purportedly engaged in political work during office hours to support the Northern Territory Labor election campaign (Allegation 1). The second allegation alleges misconduct during the caretaker period leading up to the Election, whereby Mr Gunner and other public officers purportedly misused public resources by undertaking taxpayer-funded travel for political purposes (Allegation 2).   

On 22 May 2024, the NT ICAC released an investigation report (the Report) which addresses Allegation 2. The documentary evidence suggests that Mr Gunner, along with ministerial staff, travelled on a taxpayer-funded charter aircraft to three remote communities during various periods in August 2020 whilst the mobile voting centres were open. 169 remote voting centres were operated by the Northern Territory Electoral Commission during the Election. 

Although the Report does not make a finding in relation to Allegation 2, it makes a number of recommendations in anticipation of the 2024 General Election, noting that greater clarity is necessary to ensure Members of the Legislative Assembly and their employees use public resources for legitimate purposes.  

The Report also notes that NT ICAC indicated its intention to expand the investigation to include Allegation 1 and anticipated that such findings will be addressed in a further report to be released soon.

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Authored by:

Cinzia Donald, Partner (Lavan)
Kelly Griffiths, Partner
Daniel Maroske, Partner
Kathy Merrick, Partner
Jack Tipple, Special Counsel
Anna Fanelli, Senior Associate
Kasia Jaruzelska, Senior Associate 

Gabrielle Shina, Associate
Ellie Pitcher-Willmott, Lawyer
Isabella Parsons, Graduate
India Weddin, Paralegal

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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