Not since Nick Greiner resigned as Premier of NSW after a finding of corruption has ICAC been so popular a source of gossip and intrigue in NSW politics.
The history books show that not only was Mr Greiner never prosecuted before a criminal court, but he successfully appealed against the finding of corruption before the NSW Court of appeal.
Eddie Obeid, a more recent focus of ICAC, famously boasted that he had a "one percent" chance of ever being prosecuted as a result of the allegations and findings of corruption made against him.
It is in this environment that the NSW parliament has announced an inquiry in the prosecutions (or indeed, the lack thereof) arising out of ICAC investigations.
An important first point to note is that ICAC has no power to make determinative criminal findings or impose criminal penalties on any person. That said there are criminal offences provided for in the Act including for lieing to the ICAC during an investigation. The incredibly wide, coercive powers that ICAC has at its disposal (including persons having no right to silence) are wholly incompatible with criminal prosecutions, and to our knowledge no one is seriously suggesting that should not be the case.
A finding of corruption from ICAC does not suggest that there is a viable criminal case against a person. Given that evidence gathered or presented during an ICAC hearing cannot be directly used in a criminal court, the Director of Public Prosecutions (DPP), in deciding whether to launch a prosecution, would need to be satisfied that said evidence can be obtained through "regular" policing and investigation.
Further, the ICAC definition of corruption does not neatly dove-tail with the criminal offences that the DPP has at its disposal. This means that corruption before ICAC is not necessarily corruption (or, indeed, any offence at all) before the criminal courts.
This is not an accident or a failure of drafting. ICAC's stated aims are not to collect evidence for the DPP, or to assess the strength of a crown case. ICAC's role is to root out corruption in public office – to be, if you will, a light shining on our politicians and public servants to ensure that probity is maintained. ICAC has coercive powers and lower burdens of proof because we are happy to "punish" by taking away jobs or power, based on a far lower standard upon which we allocate criminal penalties for conduct.
That is good, and proper. But it should not be ignored that conduct that draws the attention of ICAC may also be criminal conduct, and, to that end, work that ICAC can do to support and assist the DPP should be encouraged.
In the event, it may be that the committee recommends that new criminal offences be created, or that the definition of "corruption" used by ICAC be amended to bring it in line with the criminal definitions.
It seems likely that ICAC will continue to play a large role in policing corruption in NSW. It is regrettable that there is a need for such a body, but it is difficult to deny the importance of the work that ICAC does.