ICAC proposals: time limits could hamper investigations, merits reviews may pose problems

Law Society of NSW

Imposing time limits on investigations carried out by the Independent Commission Against Corruption (ICAC) and introducing judicial review of the merits of its findings may do more harm than good.

The President of the Law Society of NSW Joanne van der Plaat said while ICAC overall is performing well, it appears under-resourced and new rights of ‘appeal’ and time limits are not a practical answer to the issues facing the integrity body.

“The injection of extra ICAC funding announced in this year’s budget is welcome, but the implementation of a more flexible resourcing model would allow for resources to be directed to urgent investigations,” Ms van der Plaat said.

“While attractive on the surface, proposals to more rigorously enforce time standards on ICAC investigations, and the creation of a judicial review process on the merits of ICAC’s decisions, could have unwanted consequences.”

The Law Society has written to the NSW Parliament’s Committee on the Independent Commission Against Corruption to voice its concerns about the proposals aired originally in the Committee’s report of November last year, Reputational impact on an individual being adversely named in the ICAC’s investigations.

“Delay can contribute to damaging the reputations of the subjects of ICAC investigations and undermine confidence in its work, but statutory time frames may not assist. The minimisation of delay must be balanced with procedural fairness, ensuring persons of interest have sufficient time to prepare for hearings,” Ms van der Plaat said.

“Likewise, ICAC should not be prevented from following up evidence of corruption that can emerge during the course of an investigation.”

The proposal for a new judicial review mechanism to determine whether a particular finding is justifiable on the merits also has the potential to be unfair.

“Court action is expensive and stressful. Those who don’t bring an action for merits review, including because they could not afford to do so, may be assumed to accept ICAC’s findings. Wealthy persons of interest would be favoured by being able to pursue an additional avenue to challenge an unfavourable finding.” Ms van der Plaat said.

“A merits review process would also misconstrue an ICAC investigation as a trial. By turning an inquisitorial process into an adversarial one, such a process would also impose cost burdens on all witnesses involved in the original inquiry, even if they were not responsible for initiating the review.”

The Law Society looks forward to examining the Committee’s report on its release.

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