10th April 2024

Integrity in government and public confidence in the decisions of government are of the utmost importance.
Following the Independent Commission Against Corruption’s decision to terminate its investigation into Mr Crakanthorp, unanswered questions about his conduct as a Minister remain.

It is overwhelmingly in the public interest for Premier Chris Minns to release the ICAC report.

Since the Premier’s decision to remove Mr Crackanthorp from the Ministry over his alleged failure to declare conflicts of interest, the NSW Opposition has sought information regarding the decisions that he may have taken. The Premier has to date refused to release this information citing the ICAC investigation – this is no longer a valid reason to withhold this information.

It is clear from that the ICAC has prepared a detailed written report in relation to its investigation concerning Mr Crakanthorp which contains the ICAC’s “factual and other findings concerning Mr Crakanthorp’s conduct” (in relation to his obligations under the Ministerial Code of Conduct).

The NSW Opposition calls upon the Premier, who has received the report, and the ICAC to take all reasonabe steps to release the report to the public as soon as possible.

Background
At this stage it appears that the ICAC has determined that the Report is under section 14(2) of the ICAC Act.
 

Whether or not that is a correct characterisation by the ICAC, it is arguable that the Report also falls within the terms of section 74(1) of the ICAC Act. Reports under section 74 are delivered to the Presiding Officer of each House of Parliament for public release, as required under section 74(4) of the ICAC Act and there is a
process for their public release when Parliament is not sitting, under section 78 of the ICAC Act.
 

Even if the Report did not fall within section 74 of the ICAC Act, there is a clear public interest in it being released publicly. Under section 12 of the ICAC Act, “In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns.”

Section 14(2) of the ICAC Act says that it is a function of the Commission, if it considers it desirable to do so, to furnish a report to a public authority or the Minister responsible for the authority in relation to the exercise of the function of a public authority.

A NSW Minister is not a public authority for the purposes of section 3 of the ICAC Act.
 

Section 74(1) of the ICAC Act provides that the ICAC may prepare reports in relation to any matter that has been or is the subject of an investigation.

Section 74(4) of the ICAC Act requires ICAC to furnish reports prepared under section 74 to the Presiding Officer of each House of Parliament.

Section 74(8) of the ICAC Act relevantly provides that the ICAC may defer making a report under section 74 if it is satisfied that it desirable to do so in the public interest.

Section 74(8) does not confer a discretion to defer furnishing of reports that have been made. In any event, the ICAC having decided that the public interest required the making of a report as referred to in the Statement, the Report falls within section 74 and should be publicly released.