Do I Need a Lawyer to Appear at the ICAC?

A number of recent high profile corruption hearings have raised interest in the Independent Commission Against Corruption (ICAC) and its public inquiries. While we have seen many media reports about politicians being brought before the ICAC, the fact is anyone who has had dealings with a public sector agency or official who is being investigated can become embroiled in a corruption inquiry.

Here is a quick guide to the ICAC, its function, how it differs from court and the advisability of getting legal representation if you find yourself summoned to appear as a witness at a hearing.

What is the ICAC?

The ICAC was set up in 1989 by then NSW Premier Nick Greiner in response to growing community concern about corruption in the public sector. Ironically, Mr Greiner himself had to later resign as premier as a result of an ICAC inquiry. The ICAC has claimed a number of high profile political scalps, including former NSW Premier Barry O’Farrell, who recently resigned his position over an undisclosed gift of a bottle of wine that came to light when he was in the witness stand.

The ICAC has extensive powers of investigation and conducts public inquiries to obtain evidence of corrupt conduct in the NSW public sector. Its role is to both expose and prevent corruption, and to inform the general public of the consequences of corruption.

It can investigate anyone involved in NSW public sector agencies, including government departments, local councils, and the judiciary. The only exception is the police force, which is investigated by the NSW Police Integrity Commission.

What is an ICAC inquiry or compulsory examination?

The ICAC receives and analyses complaints from members of the public and public officials. The ICAC can either hold a public inquiry, or a compulsory examination. A compulsory examination is closed to the public, usually to protect a witness’s safety or the integrity of the investigation. At the conclusion of a hearing, the ICAC can recommend that the Office of the Director of Public Prosecutions bring criminal charges against anyone who is found to be involved in corrupt conduct.

Is the ICAC the same as a court?

No. Although anyone can be compelled to appear at an ICAC public inquiry, and failure to do so can result in arrest, which is the same as the court system, the ICAC’s powers and process are different.

A court hearing or jury trial is adversarial in process. It is not an investigation – that has already been conducted by the police. It is an argument between two parties about whether the evidence proves the offence.

An ICAC hearing is inquisitorial in process. The purpose of the public inquiry or compulsory examination is for the ICAC to find out what has occurred, whether it amounts to corruption, and whether charges should be recommended.

What is required of me as a witness?

If you are summoned to appear before a public inquiry or compulsory examination, this means the ICAC will be looking at your involvement with a public agency or official under investigation. As a witness, you will be required to appear at the requested time. You must produce any documents the ICAC requires, and you must give truthful testimony.

Do I need legal representation?

Even though the ICAC is not a court, you do have the right to legal representation. If you are required to appear at an ICAC hearing, it is important to arm yourself with knowledge of the process, and with experienced legal advice regarding your possible testimony. Sydney Criminal Lawyers® specialises in guiding people through ICAC hearings.

You may have a legal representative sit with you during the inquiry or examination, or you may get legal advice and appear on your own. If you do have a legal representative with you during the inquiry, unlike in court, that lawyer cannot speak for you. You must answer the questions just like a witness in the witness box.

In some scenarios, if your safety is compromised, an application can be made for a lawyer to represent you in the hearing. Conversely, the ICAC can deny you a representative in the inquiry if it believes having one will compromise the integrity of the investigation. Even so, you are still permitted to see a lawyer before the inquiry begins.

As a witness brought into an inquiry involving matters of public corruption, there can be serious consequences for you personally, or for your business. Even if your involvement is minimal, the uncertainty of the process can be stressful. The right legal advice can ensure you have the tactics to protect yourself if the need arises, or it can help allay any fears regarding your involvement in a hearing.