Independent Commissioner Against Corruption (Misconduct and Maladministration) Amendment Bill

Introduction and First Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:45): Obtained leave and introduced a bill for an act to amend the Independent Commissioner Against Corruption Act 2012. Read a first time.

Second Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:46): I move:

That this bill be now read a second time.

I propose for consideration of the parliament the Independent Commissioner Against Corruption (Misconduct and Maladministration) Amendment Bill 2015. Members would be aware that the Independent Commissioner Against Corruption Act 2012 has now been operational for approximately two years. We have had a partial annual report and a full annual report from Mr Bruce Lander QC in respect of the workings of ICAC, and we thank both him and his staff for the continued work that they provide to South Australia.

Additionally, the ICAC sits within a suite of organisations and entities which were established by this parliament to protect citizens, essentially, against the conduct of public officials. This suite of entities deals with the conduct of those in the public arena, not the private arena. To name just a few, we have the Auditor-General and his office to provide reports to the parliament, largely relating to finances and processes of the departments, and we value that advice.

Additionally, we have annual reports and sometime supplementary reports from the Ombudsman, Mr Wayne Lines, and his office, who have very extensive responsibilities and are about to assume responsibility for the complaints and concerns in relation to return to work matters. Obviously, we have a Health and Community Services Complaints Commissioner to deal with areas in those jurisdictions in the public and private arena, but the overwhelming majority of concerns are in the public arena. We have the office led by Ms Pam Simmons, which is the Office of the Guardian for Children and Young People, and that, of course, deals with the children—tragically, near 4,000 of them in this state—who are under state care.

So, we have a number of these entities, and we have them because, regrettably, there is misconduct, maladministration and even corruption in our public entities which needs to be supervised and identified to be able to have those providing these services being educated as to how they properly conduct themselves, and to ensure that we have the highest possible standard of public administration.

Mr Lander, in addition to providing two annual reports to the parliament outlining a number of recommendations, has also, sometimes of his own action and sometimes as a result of investigations that he has undertaken on referral to him, and sometimes at the request of the Attorney-General, undertaken a number of reviews to identify any shortcomings of legislation, obviously to take into account any changes in the law and, most importantly, to be able to make improvements to the structure of the legislative schemes that we have to protect members of the public.

One, for example, is in relation to how we should deal with police complaints in the future. That has been comprehensively considered by him, by a committee of the parliament and other parties have made a contribution to it. Just this year on 30 June 2015, the commissioner published a review on legislative schemes outlining his recommendations to streamline the multiple agencies holding, in his assessment, some overlapping responsibilities on integrity matters.

As is well known to this house and to the public now, after the Gillman land deal over the last three years and the government's decision to sell this state-owned land, Mr Lander also published a report on 14 October this year outlining his investigation into that. It was coupled with an addendum in respect of his assessment on the Newport Quays deal/settlement where he found there was no misconduct or corruption or maladministration and identified it as a coincidence, but I just mention that, from time to time when these inquiries are undertaken, there can be side issues that are followed up in investigations and that happened to be one of them.

Members are fully aware of what the Gillman report identified. It identified the scandalous behaviour of the Treasurer of the state of South Australia in his treatment of, using the most foul language, in respect of how he orchestrated his dealings with senior members of the Public Service. I am not going to go into that today. It has been well viewed, but it highlights the importance of these agencies having the power and capacity to actually investigate these matters and be prepared to publish it.

I commend the commissioner. Obviously he is doing his job and he is making sure that he throws light on behaviour that, whilst it might not, in his view, reach a threshold to qualify for maladministration, at least he has been prepared to detail that in this Gillman report, and make it absolutely clear to the people of South Australia as to what is happening with this government and, in particular, the Treasurer's behaviour.

Mr Pengilly: It stinks.

Ms CHAPMAN: Describing it as 'stinks' of course, has been a very good description by a number of people who have been commentating on this matter. Again, I will not go into all the detail of it, but when I look at these processes and schemes to deal with integrity and maintaining a standard in our community which the public can trust and on which investors in South Australia can rely, I am reminded of something my mother (and I am sure other mothers have said to people) and that is, 'The best antiseptic is sunlight.' It is very important to shine a light and have the capacity to be able to expose behaviour or inaction, to be able to identify if there is conduct which is either absent or inappropriate in some manner and which should be changed. So I thank the commissioner for those reports.

In addition to his report most recently, he also made comment in his previous annual report about the need for reform, and I think it is very disappointing that the government has been so slow to act in respect of these recommendations. It raises the question of why that would be the case and obviously from the public statements that have made by the commissioner and the Commissioner of Police in respect of various investigations that have been undertaken, and in reading the recent Ombudsman's report tabled yesterday outlining some of the investigations, it is quite clear we have a problem in South Australia. We need to be able to, as I say, reassure the public, but also be able to identify to the public where this is occurring and by whom, so that they can familiarise themselves with those that they are to avoid or remove, whichever they might see fit.

The Gillman report, in particular, confirmed the commissioner's view that there was a case for all or part of some of the inquiries that he conducts to be public and, further, that they were to be at the discretion of the commissioner and when in the public interest. He does not go so far as to suggest that we have perhaps the extent of public hearings that apply in other jurisdictions, such as New South Wales where we regularly read about the tawdry activities of the ALP in that arena but, in any event, he does make it very clear that there is a case.

We have viewed that in light of his previous review on legislative schemes and having accepted that he himself has identified the limitation he was under in conducting the inquiry on the Gillman sale; namely, that he was only dealing with allegations of maladministration or misconduct. He could only proceed with that inquiry under the Ombudsman Act—that was his determination.

Later, in evidence he gave to the Crime and Public Integrity Policy Committee on 10 November, he makes it clear that, in cases such as the Gillman land deal inquiry, the Ombudsman would neither have the resources or necessarily the experience to be able to undertake that inquiry. So he took it on himself and he provided this comprehensive report. The limitations have been identified and those recommendations are quite clear for members to view.

Essentially, this bill firstly provides for the powers to investigate misconduct and maladministration to be held under the ICAC Act using the powers of the royal commission; that is, to be able to have coercive powers and not to have the limitations of the Ombudsman Act in investigations and to amend the report-making power accordingly. The existing process exercised powers of an inquiry agency only, as I have said. Secondly, it provides for the discretion to conduct an inquiry into potential misconduct and maladministration that is not corruption in public administration if such an inquiry is in the public interest.

The government promulgated regulations in October identifying a number of regulatory improvements which allow the commissioner to authorise the release of confidential information under the act where he considers it in the public interest to do so. We had this ridiculous situation recently where the commissioner had undertaken an inquiry, apparently on referral to him, in respect of the conduct surrounding the Mount Barker planning approval. Under his inquiry, that apparently was dismissed. We only know that because notice went to the local Mount Barker council. A request had to be made for permission from the commissioner to tell the other councillors.

The local journalist, Lisa Pahl at The Courier, had to get special permission from the commissioner to then publish in the paper that there had been a clearance, effectively, under this inquiry, and subsequently an online journalist did the same. I notice The Advertiser did not pick it up. In any event, it just indicates how complicated it becomes for the commissioner to be left in a situation, where for the proper administration in that case, to advise people and the relief that may have been felt by a number of those who would want to know that a complaint had been received, a submission presented, an inquiry undertaken and that there had been a clearance of any kind of misconduct or maladministration. Obviously, that should be able to be available. Unless the commissioner takes the view that it should be public and has issued a press release—like he has on a number of cases where names are not given but information is provided—then we all remain in the dark, and that is clearly not acceptable.

There has been some improvement in relation to that by some amendments, but we now need to have the capacity of the commissioner in his discretion and in the public interest to be able to make the publications. Can I say it is a moving feast.

Just recently, we had the Full Court decision in the High Court on the question of how we interpret the definition of corruption. After the recent case of Duncan v Independent Commission Against Corruption 2015 HCA 32, which dealt with the Cunneen case, it is pretty clear that, at present, corruption is to be defined fairly narrowly; that is, that it needs to encompass conduct which does not adversely affect the probity (if it is to be corrupt conduct), but it is simply not enough to be adversely affecting the efficacy in relation to the exercise of the functions of a public official.

That could change. We do not know. The point I make is that it is new ground for us in South Australia. We started with the skinny ICAC, the under-funded ICAC, the ICAC with all sorts of impediments on it. We cannot wait around for the government to act on this. We need to have some remedying of it. There are other aspects of reform that we on our side of the house would like to see in ICAC. For the purposes of bringing this matter to attention and making it absolutely clear that we do not want to want to wait for this—we have had these reports for some months. Let us face it, the Gillman report already tells us that there has been an interim report, so this government has been on notice for months and done nothing about it. I commend the bill to the house.

Debate adjourned on motion of Hon. T.R. Kenyon.