National Integrity Spotlight – March 2024

5 April 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, updates from the WA CCC, the High Court’s decision in a matter relating to the Victorian IBAC, NSW ICAC’s finalisation of its investigation into a public officer, and a special report of the ACT Integrity Commission.

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 31 March 2024 suggests that:

  • 2,747 referrals were received;
  • 2,084 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;
  • 237 referrals are pending triage;
  • 209 referrals are currently under assessment;
  • 247 referrals have been assessed; and
  • 15 new investigations have been commenced, including five which will be jointly investigated, and two investigations have been referred to other agencies with oversight from the NACC. 

The NACC has also indicated that:

  • four matters are or have been before the courts, including two that have resulted in convictions, and one that has resulted in committal for trial;
  • three matters are under consideration by the Commonwealth Department of Public Prosecutions; and
  • in one matter, the NACC has completed a final report with no corruption finding.

Former ATO employee convicted following ACLEI Operation Barker

On 12 March 2024, a former Australian Taxation Office (ATO) employee was sentenced to five years imprisonment for corrupt conduct. The former employee’s conduct included accepting bribes from a taxpayer they were auditing in exchange for a reduction in personal and tax debts of millions of dollars over the course of six years.

The former employee was convicted in the Parramatta District Court of several contraventions of the Criminal Code 1995 (Cth), including abuse of public office, unauthorised access and disclosure of restricted information, and accepting a bribe as a Commonwealth official.

This conviction resulted from Operation Barker, which was a joint investigation led by the Australian Commission for Law Enforcement Integrity (ACLEI) and the ATO. The NACC took over Operation Barker on its commencement on 1 July 2023.

Former Western Sydney Airport employee charged with allegedly soliciting a bribe

On 27 March 2024, the Australian Federal Police arrested a former employee of the Western Sydney Airport following a joint investigation with the NACC. The individual was charged with soliciting a corrupt commission, under section 249B of the Crimes Act 1990 (NSW) for allegedly soliciting a bribe of $200,000 during the procurement process for a contract for services worth an estimated $5 million.

This arrest constituted the first resulting from an investigation initiated by the NACC, with the NACC indicating that the arrest has been publicised to ‘highlight the risk of corruption in high value and complex procurements in the Commonwealth sector.’

Australian Institute of Criminology release data on community perceptions of public official corruption

In March, the Australian Institute of Criminology (AIC) released its report on ‘Community perceptions of corruption by public officials’ which surveyed over 11,000 Australians about their perceptions of the corruption of public officials prior to the commencement of the NACC in order to examine trends in corruption over time.

Key findings of the survey include:

  • 6% of survey respondents are of the view that more than half of Australian government institutions are involved in corruption;
  • 38% of respondents believe that more than half of all politicians are somewhat involved in corruption;
  • younger, unemployed, and First Nations respondents reported there were higher levels of corruption; and
  • approximately 33% of respondents believed that representatives of government institutions either ‘never’ or ‘occasionally’ act with honesty and integrity, consider the views of everyone, treat everyone with fairness and equality, or treat everyone with dignity and respect.

Researchers observed that perceptions of corruption were disproportionate to actual occurrences of corruption. The report states that ‘perceived corruption and the legitimacy of public officials go hand in hand. Implementing measures to address one may help improve the other.’

AB (a pseudonym) & Anor v Independent Broad-based Anti-corruption Commission [2024] HCA 10

On 13 March 2024, a unanimous decision of the High Court of Australia (HCA) allowed, in part, an appeal concerning the proper construction of section 162(3) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act).

The matter involved an investigation by the Independent Broad-based Anti-corruption Commission (IBAC) into allegations of unauthorised access to, and disclosure of, internal email accounts of the second appellant which is a public body. In 2021, IBAC provided the first appellant (AB), a senior officer and employee of the second appellant, with a redacted version of its draft special report (the Draft Report), which contained proposed adverse findings against both the appellants. AB subsequently requested copies of further documents referred to in the Draft Report. IBAC provided only some of the documents requested. The plaintiffs commenced a proceeding in the Supreme Court of Victoria in 2022 seeking declaratory relief that IBAC had failed to comply with section 162(3) of the IBAC Act.

Section 162(3) of the IBAC Act provides that if ‘the IBAC intends to include in a report … a comment or an opinion which is adverse to any person, the IBAC must first provide the person a reasonable opportunity to respond to the adverse material and fairly set out each element of the response in its report’. The principal issue raised on appeal was whether ‘adverse material’ refers to the proposed adverse comments or opinions in the Draft Report or whether it is the underlying evidentiary material upon which those proposed adverse comments or opinions are based. The primary judge found that it was the latter, but the obligation to provide adverse material may be satisfied by the provision of the substance or gravamen of the underlying material rather than the underlying material itself.

The Court of Appeal found that it was the former, and that the Draft Report set out the substance or gravamen of the matters that IBAC considered. Ultimately, the High Court overturned the Court of Appeal, and upheld the primary judge’s finding regarding “adverse material”.

The High Court held that ‘adverse material’ is something different from ‘adverse findings’ and ‘comment or… opinion which is adverse’ and that for a person to have a reasonable opportunity to respond, the person affected must be given the opportunity to respond to the material collected by IBAC. The High Court affirmed, as found by the primary judge and the Court of Appeal, that a reasonable opportunity to respond to that evidentiary material will be “afforded by proffering a reasonable opportunity to respond to the substance or gravamen of that material'” rather than the material itself.

In any event, as many of the Court of Appeal’s findings were not affected by the misconstruction of section 162(3), the High Court held that no substantive relief was warranted.

Western Australia Corruption and Crime Commission updates

WA CCC releases 2023- 24 FY Q2 Report

The Western Australian Corruption and Crime Commission (WA CCC) is the integrity agency tasked with investigating, and attempting to reduce instances of, misconduct that occurs in the WA public sector. The WA CCC has recently published its second quarterly report for the 2023-2024 financial year in respect of allegations and investigations of ‘serious misconduct’ in the WA public sector (Report).

‘Serious misconduct’ is defined within ss 3 and 4 of the Corruption, Crime and Misconduct Act 2003 (WA), and includes instances of acting corruptly, corruptly taking advantage of a public officer’s position for the benefit or detriment of any person or committing an offence punishable by two or more years’ imprisonment while purporting to act in their official capacity. In relation to police officers, it also includes conduct that may adversely affect the officer’s ability to perform their function honestly or actually performing their functions dishonestly, breaches of trust placed on public officers, misusing material or information the officer acquired in the course of their duties, or conduct that is, or may constitute a disciplinary offence that provides reasonable grounds for termination of employment.

Key highlights from the statistical analysis found within the Report revealed that there were a total of 770 reports and notifications received by the WA CCC this quarter, however, this amount remains consistent with previous quarters.

The WA CCC had investigated 1,165 allegations of serious misconduct and found that only 446 of those allegations warranted further investigation or were of the requisite threshold to be considered ‘suspected’ serious misconduct. Of those 446 cases, the WA CCC:

  • did not act further regarding 208 of the allegations;
  • referred 155 allegations to agencies;
  • noted that 206 allegations involved WA Police officers, and 87 allegations involved the Department of Education.

Of the 446 allegations, 119 outcomes were sustained, with 35 of those outcomes relating to WA Government Sector Entities (GSE) and 84 relating to WA Police. Disciplinary action predominantly concerned implementing improvement action through training, guidance and counselling for 37% of GSE’s and 50% of WA Police. Dismissals totalled 11 GSE’s for a variety of reasons, including unlawful access, stealing, procurement and misuse of work resources/vehicle, and two WA Police officers for unlawful access and stalking and inappropriate conduct.

WA CCC public hearings regarding Christopher Field

The WA CCC announced that it is currently conducting public hearings to investigate allegations of misconduct against Western Australia Ombudsman, Mr Christopher Field PSM. The hearings focused on claims of inappropriate use of taxpayer funds for extensive international travel.

As WA Ombudsman, Mr Field is responsible for investigating complaints about the administrative actions of government entities, ensuring they operate fairly, reasonably and in accordance with the law.

Mr Field has also served as the President of the International Ombudsman Institute (IOI) concurrently with his role as WA Ombudsman. The IOI is a collective of ombudsman institutions dedicated to protecting individuals against rights violations, abuse of power, unfair decisions and maladministration. Mr Field recently stepped down from his IOI position amidst the ongoing investigation.

Evidence presented to the WA CCC suggests that government officials were aware of and supported Mr Field’s dual roles, with letters of congratulations from the former Premier, Attorney General, and other ministers. However, concerns about potential conflicts of interest arose following media coverage late last year.

The hearings also revealed significant spending on overseas trips by Mr Field in his dual capacity. Public funds were used for international flights, accommodations in countries including Ukraine, Poland, Morocco, Russia, and Hungary, as well as chauffeur-driven limousine rides in Rome. Concerns have been raised about Mr Field’s presence in his Perth office, with records indicating only 36 days spent there over the course of a year.

Mr Field has stated that he was transparent about the travel involved in his IOI presidency. Prior to stepping down, Mr Field nominated himself for another term as IOI president in January 2024 despite ongoing controversy.

NSW ICAC closes investigation into Director of Department of Planning, Housing and Infrastructure

In a statement issued in late March, the NSW Independent Commission Against Corruption (ICAC) confirmed that it has concluded its investigation into allegations involving Ms. Katie Joyner, a Director at the NSW Department of Planning, Housing, and Infrastructure (DPHI).

Allegations surfaced on 9 February 2024, suggesting that Ms. Joyner exploited information regarding the Transport Orientated Development (TOD) Scheme for personal gain. It was claimed that she purchased property within a TOD-affected area using knowledge she acquired in her official functions. Additionally, ICAC scrutinized claims that Ms. Joyner encouraged other landowners to sell their properties to developers for profit under new government housing policies.

The allegations stemmed from statements made by Mr. Alister Henskens SC MP in NSW Parliament on 8 February 2024. Furthermore, the Cabinet Office notified ICAC on 9 February 2024, regarding the allegations.

ICAC’s investigation, utilizing its powers under sections 21 and 22 of the ICAC Act, involved thorough record reviews, interviews (including with Ms. Joyner), and forensic analysis of electronic devices. The Commission also assessed the timeline of the TOD process and Ms. Joyner’s awareness of the relevant TOD affecting her property purchase area.

After comprehensive examination, ICAC determined that there was no evidence of corrupt conduct by Ms. Joyner or any other involved party. Consequently, ICAC has closed its investigation.

ACT Integrity Commission releases report on City to the Lake Project

In 2019, former Canberra Liberal MLA Vicki Dunne referred a corruption complaint to the ACT Integrity Commission about the City to Lake Project and the conduct of ACT public servants. The ensuing Investigaton was known as Operation Lyrebird.

On 6 February 2024, the ACT Integrity Commissioner presented the key findings in a Special Report delivered to the Speaker of the Legislative Assembly. This is the second report after the Operation Lyrebird Part One report was released in 2022.

Operation Lyrebird Part Two concerned the acquisition of three boat and bike hire operators along Lake Burley Griffin as part of the land deal.

The critical issue was the lack of documentation substantiating the above market value payments made for the acquisition of the three businesses. However, the Integrity Commissioner found that while criticism of the omission was justified, a lack of documentation does not necessarily mean corrupt conduct has occurred. It was said that “in the present case, the evidence … when considered as a whole, provides an adequate basis for explaining the impugned transactions for present purposes and does not raise a reasonable suspicion of corruption.

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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
Natalia Saman, Law Graduate (Lavan)
Jin Lim, Lawyer
Ellie Pitcher-Willmott, 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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