Abuse of Public Office & Corruption Offences

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South Australia has a formidable and active anti-corruption policing mechanism and robust laws to deal with corruption offences that arise from being an employee or agent of the public service or a holder of public office. The recent addition of the Independent Commission Against Corruption and the existing Anti-Corruption Branch of South Australia Police are widely known as being aggressive and pro-active in investigating and pursuing allegations of corruption or the abuse of public office.

What is an abuse of public office? 

The present state of the law makes the use of any vestment of public authority in pursuit of a benefit to which the office-holder is not entitled a prima-facie form of corruption; while it is obvious to say that pursuit of a cash-kickback to influence a decision to award a tender would constitute an offence of corruption, the laws have been interpreted widely by both ICAC and anti-corruption branch to cover a host of scenarios that may, at first glance, seem more as a grey area or innocent assumption of a fringe-benefit.

In relation to a police officer who was alleged to have accessed information about motor vehicles, registration and the owners of same and provided it to his brother-in-law who was a debt collector, the Court of Criminal Appeal in R v Austin [2013] SASCFC 133 approved the following directions as to the elements of that offending:

  • 1. that the officer acted contrary to standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by police officers;
  • 2. that the officer knew he was acting improperly or was reckless in acting improperly;
  • 3. that, having regard to the circumstances in his position, the improper conduct of the officer warranted the imposition of a criminal sanction;
  • 4. that the officer did not act in the honest and reasonable belief that he was lawfully entitled to use the information;
  • 5. that the officer did not have lawful authority or a reasonable excuse for accessing and disseminating the information; and
  • 6. that the officer’s conduct was not trivial and could not be said to have caused no significant detriment to the public interest

It was also accepted by the Court that there was no requirement that a benefit was secured by the public servant in question, only that the intent of a benefit vesting in some person (in this case, the brother-in-law) was present at the time of the offending. The benefit need not be monetary.

This example demonstrates the wide net that may be cast in such circumstances; the provision of information, even of a low importance, that may benefit the recipient can put a public servant at risk of serious criminal liability.

ICAC and the Anti-Corruption Branch:

ICAC, by virtue of the Independent Commissioner Against Corruption Act 2012, has both broad powers and an unfettered discretion in the instigation of investigations. There are special requirements attaching to interactions with ICAC that are complex in scope. If you are involved or have been asked to attend at an interview or investigation with ICAC, it is essential that you seek legal advice immediately. This is doubly so where allegations of public corruption are concerned.

South Australia Police Anti-Corruption Branch has traditionally and until the instigation of the ICAC been the primary law-enforcement unit tasked with investigating police and public service corruption and even following the establishment of ICAC plays a frontline role, often working with ICAC.

If you are concerned you are being investigated, interviewed or have been arrested in relation to an offence of public corruption or misuse of a public office, it’s important to seek legal advice as to your specific rights and the merits of a defense at the earliest opportunity. For twenty-four hour advice and representation, call Culshaw Miller Criminal Lawyers on 8464 0033 or 0423 534 621.