This report explains how a new restriction impacts on the independence, effectiveness and efficiency of the Commission. The Commission must not refer a matter directly to a prosecution authority but may only refer it to a law enforcement agency which will be responsible for any further investigation and prosecution of the matter.

Because of the amendments and the Director’s undertaking, Commission investigators are effectively precluded from communicating with the Director’s prosecutors. All communication is made through the Police as an intermediary. This creates significant barriers to the assistance Commission investigators can give to the Director.

Key findings

• The current position is out of step with every other anti-corruption body in Australia.
• It is out of step with international best practice.
• It is in the public interest that the current position be reversed.
• The loss of the Commission’s independence, double handling, delay and the lack of direct communication with the prosecutor are all consequences of the current position.
• Formerly, the independence of the Director in considering any matter the Commission referred for prosecution, was a sufficient safeguard that struck the appropriate balance between protecting the community from corruption and protecting those being investigated from any unwarranted charges being laid.

Recommendation

• The ICAC Act be amended to reinstate the capacity for the Commission to refer a matter to the Director of Public Prosecutions.