Probity in the planning process. Presented by: Michael Mantei, Partner Kells the Lawyers

Transcription

1 Probity in the planning process Presented by: Michael Mantei, Partner Kells the Lawyers

2 What is probity? Macquarie Dictionary: n. integrity; uprightness; honesty. ICAC: (probity isn t) dishonest or partial behavior, misuse of information or breach of public trust; conduct that adversely affects or could adversely affect the exercise of official functions by public officials. Planning process: Parts 3, 3A and 4 of the EP&A Act.

3 ICAC Independent Commission Against Corruption Act 1988

4 Who does the ICAC Act apply to? Public officials and public authorities. Any person who transacts with a public official or public authority, if the transaction results in corrupt conduct.

5 Public official.. Includes: a person who is employed, contracted, seconded, elected or appointed to a government agency or local government authority; a person contracted to perform public functions on behalf of a public sector organisation (eg consultants to local government); and a Minister of the Crown or member of the NSW Parliament.

6 What is corrupt conduct? conduct of any person. that adversely affects the honest and impartial exercise of official functions; or conduct of a public official that constitutes or involves the dishonest or partial exercise of a function; or breach of public trust or misuse of information or material. And (in addition) is a criminal or disciplinary offence, such as a substantial breach of a code of conduct.

7 Corrupt conduct. Conduct must be intentional or deliberate. See also: serious corrupt conduct section 124A of the EP&A Act Systemic corruption - section 74C(1) of the ICAC Act

8 Findings of past investigations Strathfield Council (June 2005) Rockdale Council (July 2002) Wollongong City Council (May 2008)

9 Reporting requirements under the ICAC Act Duty is mandatory (section 11(2)). Applies to principal officers (ie the general manager) any matter that the officer suspects on reasonable grounds concerns or may concern corrupt conduct. No actual proof or positive belief necessary, suspicion alone is sufficient. Duty prevails over any obligation to maintain secrecy.

10 Corruption risks in the planning process Inherently susceptible to corruption? 35% of all complaints to ICAC in concerned local government 17% of all complaints to ICAC concerned planning matters 28% of all requests to ICAC for probity advice concerned planning matters

11 Specific risk areas Council officers and regulatory capture Departures from development standards Political donations Councillors as constituent representatives and advocates

12 Probity under the Local Government Act 1993 Section 352 Model Code of Conduct Disclosure of Pecuniary Interest Serious corrupt conduct and misbehavior

13 Protection for whistleblowers Vitally important element of any corruption prevention system NSW Protected Disclosures Act 1994 Protected disclosure disclosure under Part 2 of the Act. A person who takes detrimental action against a whistleblower is guilty of an offence section 20. A whistleblower is not subject to any liability section 21. The identity of a whistleblower cannot be disclosed section 22.

14 EP&A Amendment Act A member of PAC and JRPP required to disclose pecuniary interests (schedule 3(11) & 4(12)). Improper influence of a planning arbitrator (section 96L) 3rd party merit appeals for applications involving departures from development standards

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