The Independent Commission Against Corruption (ICAC) published new guidelines called Managing Conflicts of Interest in the NSW Public Sector (the ICAC Guidelines) on 30 April 2019.
The ICAC Guidelines adopt a more succinct and flexible approach to managing conflicts of interest compared to that of its predecessor: Managing Conflicts of Interest in the Public Sector Toolkit (the Toolkit) which was a joint publication prepared by ICAC and the Crime and Misconduct Commission in Queensland in 2004.
In particular, the ICAC Guidelines offer guidance to public officials in NSW by:
Notably, the ICAC Guidelines provide a clear methodology in determining whether a conflict of interest exists by considering the following four questions:
In this way ICAC is departing from the conventional classification of conflicts of interests as actual, perceived or/ potential and adopting an objective ‘reasonable persons test’ to determine whether an undue connection between the official’s personal interest and public duty exists that amounts to a conflict of interest.
Further, the ICAC Guidelines offers more flexible conflict of interest management options compared to the ‘6 Rs’ which was the approach used in the Toolkit (register, restrict, recruit, remove, relinquish, resign). The management options under the ICAC Guidelines and their relationship to the previous 6 R’s in the Toolkit are as follows:
The fourth option is a new management option provided by the ICAC Guidelines and emphasises involving either stronger record keeping or additional monitoring and assurance to reduce the likelihood of any improper conduct.
Some examples of this include:
Importantly, the ICAC Guidelines do not replace the Toolkit and the Toolkit should continue to be used as a companion tool to the new ICAC Guidelines.
Conflicts of interest for public officials are an unavoidable aspect of a public service career and are often insufficiently understood and mismanaged.
The new ICAC Guidelines should be adopted by all NSW government agencies to implement a more sophisticated control framework to appropriately and transparently deal with conflicts of interest to increase public confidence in government agencies, particularly government procurement processes.
Authors: Scott Alden, Victoria Gordon & Jeffery Shi
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