9 September, 2015
In brief
- The Corruption and Crime Commission Act 2003 (WA) is now known as the Corruption, Crime and Misconduct Act 2003 (WA).
- Amendments to the Act affect the reporting obligations of ‘principal officers’ of ‘notifying authorities’ under the Act.
- Principal officers and their advisors should be aware of the changes and ensure that the correct reporting procedures are adopted in relation to suspected misconduct by public officers.
Introduction
On 1 July 2015, the act formerly known as the Corruption and Crime Commission Act 2003 (WA) changed its name to the Corruption, Crime and Misconduct Act 2003 (WA) (the Act). More importantly, a number of significant amendments to the Act came into effect on the same day. These amendments affect, and to a certain extent complicate, the reporting obligations of ‘principal officers’ of ‘notifying authorities’ under the Act.
Overview
The amendments to the Act are intended to redirect the focus and resources of the Corruption and Crime Commission (CCC) towards identifying, investigating and preventing the most serious kinds of misconduct by public officers, while leaving less serious misconduct by public officers to be dealt with by the Public Sector Commission (PSC). (Any misconduct by the police will still be dealt with by the CCC.)
Those familiar with the Act will be aware that, while anyone may report suspected misconduct to the CCC, ‘principal officers’ of ‘notifying authorities’ are under a positive duty to do so. This duty to notify has been affected by the changes to the Act.
Types of misconduct
Under the Act, the overarching definition of ‘misconduct’ has not materially changed. However, the concept of ‘misconduct’ has been divided into 2 parts, comprising ‘serious misconduct’ and ‘minor misconduct’. The former continues to be dealt with by the CCC, while the latter will now be dealt with by the PSC.
(a) Serious misconduct
Serious misconduct includes:
- serious criminal conduct,
- corruptly acting (or failing to act) in the course of a public officer’s duties, and
- corruptly taking advantage of a public office to obtain a benefit or cause a detriment to any person.
‘Corrupt’ conduct is generally conduct involving deliberate and active dishonesty or an improper purpose or motive.
(b) Minor misconduct
‘Minor misconduct’ includes:
- performance of a public officer’s functions in a manner that is not honest or impartial,
- breaches of trust, and
- misusing information relating to a public officer’s functions,
where the conduct constitutes, or could constitute, a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 (WA).
Reporting threshold
Prior to the amendments to the Act, principal officers of notifying authorities had a duty to notify the CCC of suspected misconduct. Although the duty to notify remains, principal officers are now only required to notify the CCC of suspected ‘serious misconduct’. Suspected ‘minor misconduct’ must now be reported to the PSC.
The threshold for reporting suspected misconduct, whether serious or minor, is the same as it was before the amendments. In both cases, a notifying authority’s principal officer has a paramount duty to notify the CCC or the PSC (as the case may be) of any matter that he or she suspects on reasonable grounds concerns or may concern serious or minor misconduct (as the case may be), provided the matter is of relevance or concern to the principal officer in his or her official capacity.
The CCC and the PSC expect principal officers to make ‘informed decisions’ about whether a matter concerns ‘serious misconduct’ or ‘minor misconduct’. Having said that, the CCC and the PSC have made it clear that “[n]otifications or reports made carefully and in good faith will be accepted on that basis”. Where a notification is made to the wrong authority, both the CCC and PSC can redirect the matter to the correct authority. Matters should not be reported to both authorities: if a matter concerns serious and minor misconduct, it should only be reported to the CCC.
Guidelines regarding ‘suspicion on reasonable grounds’
The CCC has also updated its Guidelines in relation to the reporting of serious misconduct by principal officers.1 The new Guidelines give guidance about the meaning of the phrase ‘suspicion on reasonable grounds’ (i.e. when the reporting obligation will be triggered). ‘Suspicion on reasonable grounds’ requires some factual basis, and a stronger level of knowledge than mere speculation, rumour, gossip or innuendo. The information does not need to be in the principal officer’s direct knowledge, provided it is obtained from a reliable source. (Of course, the threshold remains fairly low, because the matter need only be one that may concern serious misconduct.)
Guidelines regarding notification of serious misconduct
Where serious or minor misconduct is suspected, the Act requires that the principal officer notify the relevant authority (the CCC or the PSC) ‘as soon as is reasonably practicable’ after he or she becomes aware of the matter.
The new Guidelines are issued under s 30 of the Act, and so augment the reporting obligations in the Act. Among other things, the Guidelines vary the timing requirements for reporting certain kinds of ‘serious misconduct’. In the Guidelines, the CCC has prescribed 3 different degrees of seriousness within the definition of ‘serious misconduct’ itself; high level, mid-level and a low level.
A principal officer must notify the CCC of high-level serious misconduct ‘as soon as is reasonably practicable’ (i.e. the timing requirement under the Act). However, the principal officer only needs to notify the CCC of mid-level serious misconduct on a monthly basis. Further, the principal officer only needs to notify the CCC of low-level serious misconduct once the notifying authority has ‘dealt with’ the allegations.
In other words, low-level serious misconduct can now be dealt with internally by notifying authorities, provided the outcome of the investigation is reported to the CCC. Presumably, this report should be made as soon as is reasonably practicable after the conclusion of the investigation.
Practical implications
Practically, this all means that notifying authorities will need to analyse whether a matter concerns (or may concern) either serious misconduct or minor misconduct, and, if it concerns the former, which category of serious misconduct it falls into (high-, mid- or low-level).
A risk arises if a matter is treated as low-level serious misconduct, and so dealt with internally, when the matter in fact concerns mid- or high-level serious misconduct. The risk is that a principal officer will breach his or her reporting obligations under the Act if the matter is not reported until after it has been ‘dealt with’ by the notifying authority, rather than ‘as soon as is reasonably practicable’ after the principal office becomes aware of the suspected misconduct. If a principal officer breaches his or her reporting obligations, the CCC or the PSC (as the case may be) may report the breach to a person or body with the power to take disciplinary action against the principal officer.
However, given the public statements by the CCC and the PSC to date, we do not expect adverse action to be taken against a principal officer who acts in good faith having given the matter proper consideration.
Fact sheet regarding minor misconduct
The PSC has also issued a fact sheet in relation to the reporting of minor misconduct by principal officers.2 Unlike the CCC Guidelines, the fact sheet does not have statutory effect. However, it is a useful resource for understanding a principal officer’s obligations to notify the PSC of minor misconduct. In short, all ‘minor misconduct’ must be reported to the PSC as soon as is reasonably practicable.
Format of notifications
Finally, the CCC’s Guidelines include an example notification. This can be found in Schedule 2 to the Guidelines, and should be used as a template when notifying the CCC of serious misconduct.
The PSC has a separate form for notifying minor misconduct. Alternatively, it can be done online.
Endnotes
- Guidelines for notification of serious Misconduct for PrinciPal officers of notifying authorities.
- Notification by principal officers Reporting minor misconduct.
For further information, please contact:
Elizabeth Macknay, Partner, Herbert Smith Freehills
elizabeth.macknay@hsf.com
