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20 Sep 2016

Independent Commissioner Against Corruption (Miscellaneous) Amendment Bill

Adjourned debate on second reading.

(Continued from 7 July 2016.)

The Hon. A.L. McLACHLAN ( 16:47 ): I rise to speak to the Independent Commissioner Against Corruption (Miscellaneous) Amendment Bill 2016. The opposition will be supporting the second reading of the bill. At this stage of the progression of the bill, the opposition does not envisage that it will be seeking any amendments to the same. I speak on behalf of my Liberal colleagues.

The bill has been introduced by the government to address operational issues that have arisen during the first few years since the Independent Commissioner Against Corruption was established in South Australia. The government has stated that the aim is to further refine and improve the operation of the Independent Commissioner Against Corruption Act to ensure that it operates as effectively as possible. The opposition accepts the government’s assertions that because ICAC has only been operating for approximately three years it is expected that certain operational issues will arise that require rectification.

I now turn to the clauses of the bill. The proposed amendments follow from recommendations made by the Independent Commissioner Against Corruption, Bruce Lander. The commissioner has provided two annual reports to the parliament in which he has set out a number of recommendations. Further to this, on 30 June 2015, the commissioner published a review of the legislative schemes governing the making of complaints and reports about public administration. In his review, the commissioner made a number of recommendations aimed at streamlining the multiple agencies that currently operate in South Australia, which have overlapping responsibility for integrity matters.

This bill also follows from the commissioner’s report, dated 14 October 2015, into the sale of the state-owned land at Gillman. In his review of legislative schemes, the commissioner outlined the practical problems faced by ICAC when investigating potential issues of misconduct or maladministration in public administration. He explained that, although the ICAC Act assumes that matters concerning issues of misconduct or maladministration in public administration will be referred to an inquiry agency or public authority for investigation, the act also permits the commissioner to investigate these matters.

However, if the commissioner chooses to investigate these matters, he cannot use the investigative powers given to him under the ICAC Act. Those powers are preserved for corruption investigations. Instead, he must exercise the powers of an inquiry agency—for example, the Ombudsman—after first seeking the views of that agency. He is then able to conduct an investigation bound by the powers of the relevant agency. To make this initial process simpler and more efficient, he has made the following recommendation:

The ICAC Act should be amended to provide that the ICAC may investigate potential misconduct and/or maladministration and may do so utilising the powers under the Royal Commissions Act 1917.

The bill has adopted this recommendation. On this point, I think it is important to reflect on why ICAC, in certain circumstances, might be required to investigate matters of maladministration and misconduct. When the ICAC Act was first introduced to parliament, the government stated in the second reading:

Despite the primary object of the ICAC being to investigate corruption in public administration, having the authority to act on conduct amounting to maladministration and misconduct is necessary. This is because the conduct amounting to maladministration or misconduct may be indicative of an increased risk of corruption or may be evidence of an incipient culture of corruption.

In practical terms, the amendment contained in this bill will provide ICAC with coercive powers and remove the limitations of investigations that are conducted under the Ombudsman Act. It also removes the need to refer to the relevant agency before conducting an investigation.

Other technical amendments to the bill seek to clarify the primary objective of the commissioner, which is to investigate serious or systemic corruption in public administration and to refer serious or systematic misconduct and maladministration to the relevant body. It also seeks to redefine circumstances in which the commissioner should investigate serious or systemic misconduct or maladministration in the public administration and provides a definition for serious and systemic misconduct and maladministration.

While the commissioner’s powers have been expanded, the definition and the purpose of the act have been refined. Other amendments sought in the bill enable the Office for Public Integrity (OPI) to assess and refer matters directly to the appropriate authority without having to make a recommendation to ICAC.

The bill seeks to enable matters referred by the ICAC to the Ombudsman to be dealt with exclusively by the Ombudsman. The bill amends the report-making power by specifying the particular issues on which the commissioner may publish a report and provides a complaints procedure for alleged abuse of the exercise of powers of the commissioner or misconduct by officers of the ICAC. The bill goes further and seeks to amend the definition of corruption to encompass the act of lobbying so that such activity can be investigated by the commissioner, and provides clarity around the use of information obtained during investigation.

The bill also seeks to clarify that evidence gathered in good faith is able to be provided to a law enforcement agency, despite any jurisdictional error that may have occurred during the time of the investigation. It also clarifies that breaches by members of parliament of a statement of principles cannot be investigated by ICAC. Other provisions in the bill allow law enforcement officers involved in a joint investigation with ICAC to be named on the search warrant, giving the police the associated search and seizure powers that stem from this.

The Liberal opposition has been critical of the government in that it has failed to adopt the recommendation of the commissioner in relation to public hearings. In the Gillman report the commissioner recommended that he should be granted the power to hold inquiries into maladministration in public if it is in the public interest to do so. The commissioner stated the reason for this request:

When I investigate corruption I do not make findings. Whether or not a prosecution ensues is a matter for the Director of Public Prosecutions. Whether or not a person is convicted of a criminal offence is a matter for a court.

In contrast—unlike a corruption investigation—an investigation into maladministration in public administration will require me to make findings in respect of the conduct of a public officer or the practices, policies or procedures of a public authority.

There will be occasion where—as in this case—there is a significant public interest in the subject matter of the inquiry.

In those circumstances, there is a strong argument in support of permitting public scrutiny of evidence given, submissions made and the procedure undertaken. In a corruption matter such scrutiny would routinely occur when the matter is prosecuted in a court.

The extant position of the government is that it continues to impose public hearings. Indeed, it has been criticised in the media as being the facilitator of a situation which makes South Australia the nation’s most secretive state.

When considering this issue I came across an independent review of the New South Wales ICAC by Bruce McClintock SC conducted in 2005. In that review he outlined why he had recommended the New South Wales ICAC should retain its power to hold hearings in public. The report stated:

I do not agree, as some have argued, that public hearings are unnecessary or that the power to hold them should be removed.

Quite the contrary, in my opinion, public investigations are indispensable to the proper functioning of ICAC.

This is not only for the purpose of exposing reasons why findings are made, but also to vindicate the reputations of people, if that is appropriate, who have been damaged by allegations of corruption that have not been substantiated. Moreover, if issues of credibility arise, it is, generally speaking, preferable that those issues are publicly determined.

I leave it to the government to reflect on the same. The opposition is supportive of the amendments contained in this bill. I commend the bill to the chamber.

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