Icac Personnel: Above Or Bound By The Law?

The Independent Commission Against Corruption (ICAC) is an integrity agency of the Government of New South Wales, Australia, responsible for eliminating and investigating corrupt activities and enhancing the integrity of the state's public administration. ICAC officers have the power to arrest and detain individuals, and to conduct questioning and interviews. While ICAC does not have the power to make findings or hand down penalties, it can refer evidence to public authorities and the Director of Public Prosecutions for further investigation, prosecution, or disciplinary action. It is important to note that ICAC officers are subject to certain rules and regulations, and their conduct can be reviewed and investigated by an independent Inspector to ensure compliance with the law. Therefore, while ICAC officers have coercive powers and can compel witnesses to testify, they are not above the law and can be held accountable for any misconduct or abuse of power.

ICAC investigative capabilities

The investigative capabilities of ICAC personnel are extensive and powerful, but they are not above the law. ICAC, or the Independent Commission Against Corruption, is an integrity agency established in 1989 to investigate and eliminate corrupt activities and enhance the integrity of the state's public administration. While ICAC has the power to investigate and refer cases for prosecution, it does not have the authority to make findings or impose penalties.

ICAC's investigative capabilities include the power to:

• Compel witnesses to testify: ICAC has the coercive powers of a royal commission, allowing it to force witnesses to provide evidence.
• Obtain evidence through various means: ICAC can use compulsion, coercion, or other methods to gather evidence that may be inadmissible in a court of law.
• Conduct arrests and detentions: ICAC officers can arrest individuals and either take them to a police station or an ICAC office for further inquiries. Detained individuals have specific rights outlined in the Independent Commission Against Corruption (Treatment of Detained Persons) Order.
• Refer cases for prosecution: If ICAC finds evidence of criminal offending, it refers the case to the criminal justice system for consideration by the Director of Public Prosecutions.
• Educate and enhance integrity: ICAC is responsible for educating public authorities, officials, and the public about corruption and enhancing the integrity of public administration.
• Conduct multi-agency task force responses: ICAC works with other agencies and task forces to combat Internet crimes against children and enhance nationwide responses.
• Provide training and technical assistance: ICAC offers training and support to other ICAC task forces and law enforcement agencies in areas such as investigations, forensics, and prosecution.

It is important to note that ICAC's powers and capabilities vary across different states and jurisdictions. For example, the South Australian ICAC conducts all investigations and hearings in private, and disclosing information obtained during these proceedings is a breach of the ICAC Act. Additionally, ICAC personnel are subject to oversight and accountability measures to ensure they act within the boundaries of the law.

ICAC arrest procedures

Upon arrest by ICAC officers, a person may be taken to a police station or an ICAC office. If taken to an ICAC office, the arrestee may be detained if deemed necessary by a Senior Commission Against Corruption Officer or a higher-ranking officer for further inquiries. The rights of detainees held in ICAC custody are outlined in the Independent Commission Against Corruption (Treatment of Detained Persons) Order (Cap. 204A). This order mandates that a "Notice to Persons Detained" be displayed in every detention room, outlining the rights of the detainee. These rights include:

• Informing a friend or relative about their detention
• Communicating and consulting with a legal advisor
• Requesting to be released on bail
• Access to drinking water, adequate food, refreshments, and medical care if necessary

The amount of bail is determined by a Senior Commission Against Corruption Officer or an officer of higher rank. If bail is refused, the detainee must be brought before a Magistrate within 48 hours of their arrest.

ICAC officers conduct questioning through video-taped interviews. Before the interview, the detainee must be cautioned, stating that they have a right to remain silent and that their responses may be used as evidence. Detainees have the right to remain silent and may choose to obtain legal advice before proceeding. They are also entitled to have their lawyer present during questioning. After the interview, ICAC officers must provide a copy of the taped interview or a written statement to the interviewee.

ICAC questioning and interviewing

When conducting ICAC questioning and interviewing, it is important to follow these steps:

• As a team, create a list of basic questions that are open-ended instead of simple yes/no questions. This list can be tailored to specific events, and it is essential to practice and ask follow-up questions for greater detail.
• Understand the ACE's Intelligence Requirements to know the information that needs to be collected during the interrogation.
• Learn to recognise indicators of deception, such as refusal to maintain eye contact, crossing of arms, tapping of fingers, or marked changes in demeanour.
• Develop roles beforehand, including who will question and who will record/take notes, and determine how this information will be documented and shared with analysts.
• When questioning enemies, criminals, or gangs, practice the Five S's: search, silence, segregate, safeguard, and speed to the rear.

It is worth noting that ICAC officers must caution the detained person before questioning and interviewing them, informing them that they have a right to remain silent and may choose whether to attend the video-taped interview or answer any questions. They may also request legal advice and have their lawyer present during the process. After the interview, ICAC officers must provide the interviewee with a copy of the taped interview or written statement.

ICAC and criminal liability

The ICAC, or the Independent Commission Against Corruption, is an integrity agency of the Government of New South Wales, Australia, responsible for eliminating and investigating corrupt activities and enhancing the integrity of the state's public administration. The commission was established in 1989 and has jurisdiction over state and local government in New South Wales. This includes parliamentarians, local councillors, the Governor of New South Wales, public servants, and staff of universities and state-owned corporations.

In terms of criminal liability, ICAC officers can arrest a person and take them to a police station or an ICAC office. If the person is taken to an ICAC office, they can be detained if an officer of the rank of a Senior Commission Against Corruption Officer or higher deems it necessary for further inquiries. The rights of a person in ICAC custody are outlined in the Independent Commission Against Corruption (Treatment of Detained Persons) Order (Cap. 204A). These rights include:

• Requesting that the detained person's relatives or a friend be informed of the detention
• Communicating and consulting with a legal adviser (unless this would cause unreasonable delay or hindrance to the investigation or administration of justice)
• Asking to be released on bail
• Being provided with drinking water, adequate food and refreshments, and medical care if necessary

If bail is refused, the detained person must be brought before a Magistrate within 48 hours of their arrest. Before questioning, the ICAC officers must caution the detained person, informing them that they are not obliged to say anything but that anything they do say may be given as evidence. The detained person has the right to remain silent and may choose whether to attend the video-taped interview or answer any questions. They may also request legal advice and have their lawyer present during questioning.

While the ICAC can investigate and refer cases to the criminal justice system, it cannot impose custodial sentences or hand down penalties. It can, however, recommend that criminal charges be considered by the Department of Public Prosecution.

ICAC and the right to silence

The right to silence is a cornerstone of the Australian criminal justice system. However, several legislative amendments have diluted this right. For instance, adverse inferences can be drawn from a person's decision not to answer questions in certain circumstances.

The Independent Commission Against Corruption (ICAC) is an integrity agency of the Government of New South Wales responsible for eliminating and investigating corrupt activities and enhancing the integrity of the state's public administration. Notably, if you are called before the ICAC, you do not have the right to silence. Under the ICAC Act, this right was removed for any investigations conducted by the Commission.

Section 37 of the ICAC Act states that any witness summoned to attend does not have the right to refuse to answer questions relevant to the investigation or to refuse to produce any relevant documents or things required. The decision to eliminate the right to silence for ICAC investigations was made on the basis that the ICAC is not a court.

It is important to note that Section 26 of the ICAC Act provides protection for individuals who object before answering a question or producing a document or other evidence. In such cases, their answers will not be permissible as evidence in court proceedings against them. However, this protection only applies if individuals are aware of this immunity and choose to utilise it. This puts people without legal representation at a significant disadvantage.

The ICAC has the power to compel witnesses to testify and can recommend that criminal charges be considered by the Department of Public Prosecution. While the ICAC cannot impose custodial sentences, failure to testify or misleading the Commission can lead to five-year jail terms.

The absence of the right to silence during ICAC investigations is a significant departure from the protections typically afforded to defendants and witnesses in court. This has raised concerns about the potential reach of the ICAC's investigatory powers and the impact on the rights of individuals under investigation.

Frequently asked questions