Independent Commission Against Corruption (NSW) 

Act: Independent Commission Against Corruption Act 1988 (NSW).¹

Established: Act assented 1988; the Commission came into being on 13 March 1989.

Purpose: ICAC investigates, exposes and prevents corrupt conduct involving or affecting NSW public authorities and public officials, and educates the public sector and the public about corruption. It is an integrity body, not a general police force or prosecutor.

Powers conferred under the Act

ICAC holds powers similar to a standing royal commission: it can hold public and private hearings, compel witnesses to give evidence and produce documents, and publish reports of its findings and recommendations. These are investigative and reporting powers, not powers to determine criminal guilt or impose punishment.

Those powers are not unlimited. In Independent Commission Against Corruption v Cunneen [2015] HCA 14,² the High Court held that ICAC had no power to investigate the conduct alleged in that matter, because it was not "corrupt conduct" within s 8(2) of the Act: the conduct must be capable of adversely affecting the probity of an official function, not merely its efficacy. A student who assumes ICAC can investigate any conduct connected with a public official, rather than conduct affecting the integrity of how a function is exercised, has misread the Act's actual scope.

The date of the conduct matters. After Cunneen, New South Wales inserted Part 13 of Schedule 4 to the Act, and in Duncan v Independent Commission Against Corruption [2015] HCA 32³ Nettle and Gordon JJ described its effect at [45]: it deems valid acts done before 15 April 2015 "to the extent that they would have been valid if corrupt conduct as defined in s 8(2) ... encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions". At [46] they preferred to say the clauses "do not amend s 8(2)" but "create a new or different legal regime" for that period. So Cunneen's construction stands for conduct from 15 April 2015 onwards; check the date first.

Is it a prosecuting authority?

No. Where an ICAC investigation discloses evidence of an offence, the Commission refers the matter to the appropriate prosecuting authority — such as the Office of the Director of Public Prosecutions or NSW Police — rather than prosecuting it itself. ICAC can make findings and recommendations, including findings of corrupt conduct against a named individual, but that is not the same as a criminal conviction and does not itself impose criminal liability.

How it relates to the other NSW integrity bodies

ICAC's jurisdiction is the NSW public sector generally. Where the alleged misconduct instead concerns NSW Police Force or NSW Crime Commission officers specifically, the Law Enforcement Conduct Commission is the relevant body, not ICAC. ICAC does not do merits review and does not handle general maladministration complaints — those are NCAT's and the NSW Ombudsman's roles respectively.

How this compares with Western Australia's CCC

NSW and Western Australia each have an integrity body targeting corruption, but they are differently named and differently scoped: WA's Corruption and Crime Commission covers corruption, crime and misconduct together, while ICAC's jurisdiction is specifically "corrupt conduct" as narrowly defined and tested in Cunneen. A student should not assume the two bodies' jurisdictional tests are interchangeable just because both are commonly called anti-corruption commissions.

Self-check

• Have I stated ICAC's function as investigation, exposure and prevention of corrupt conduct, not prosecution?
• Have I cited Cunneen [2015] HCA 14 for the probity/efficacy distinction, rather than assuming ICAC's jurisdiction is unlimited?
• Have I distinguished ICAC's role from the LECC, NCAT and the NSW Ombudsman?