Independent Commissioner Against Corruption (Serious or Systemic Misconduct or Maladministration) Amendment Bill

Introduction and First Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:33): 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) (10:33): I move:

That this bill be now read a second time.

In presenting this bill to the parliament, I confirm the opposition's position that we should deal with an amendment to the principal act. The Independent Commissioner Against Corruption Act is legislation that provides for an Independent Commission Against Corruption. We now know that Mr Bruce Lander QC has taken the view during his term in office that some amendments need to be made, and where those amendments that are of merit have been presented to the parliament by the government or by us we have supported them.

There is one aspect that is a stark example of what the government has refused to consider, that is, that any aspect of a hearing by the Independent Commissioner Against Corruption should have access to be in public view. The integrity of the commission and the importance of its standing in the community is reaffirmed, in his view, in the event that he has an opportunity for serious or systemic maladministration to be in the public view.

Historically, there has been consideration of whether an investigation in respect of a corruption allegation should be heard. That has been made abundantly clear in respect of an objection by the independent commissioner. Mr Lander has at all material times said that his investigations in relation to corruption should not be the subject of any opportunity for a public hearing and, in that way, public scrutiny.

'Why?' he says. Because that is an investigation in relation to which he does not make a finding. That is an investigation that he would refer, if he considers it needs to be prosecuted, to the relevant authority—usually the Director of Public Prosecutions—to make a determination about whether there is sufficient evidence to prosecute a person or persons. On that basis, on the distinguishing feature of that, he says, and certainly at all material times has said, that corruption investigations should not be public.

On the other hand, to ensure public confidence in our public administration when there is an allegation of serious or systemic maladministration or misconduct, it must come with the opportunity for some evidence or aspects of that investigation to be under public scrutiny and be available to be public. He suggests and this bill promotes an opportunity for that to occur by him receiving powers under the Royal Commissions Act to enable that to occur.

This bill specifically provides that, in the event of him determining that he should conduct an investigation in relation to maladministration or misconduct, it is now elevated to 'serious or systemic', and he makes the determination about whether he or some other public integrity body should investigate, i.e., the Ombudsman. In the wake of the Oakden scandal, the commissioner has now made a public statement that he considers this to be of a serious nature that qualifies for his attention and investigation.

He has committed to undertake that inquiry in respect of the entity since 2007 and, in particular, in respect of public officers, including ministers, as to their conduct or failings in respect of their obligations, as outlined in the Mental Health Act. He has made it abundantly clear, in particular, to ensure that there is public confidence in this type of investigation, that there is a capacity to be able to declare that it or all or part of those aspects are by way of public hearing.

Members will be aware that in recent times we have had the royal commission by Her Honour Margaret Nyland, former Supreme Court judge, in respect of the child protection system. She determined in the course of that inquiry that there ought to be available information from the evidence of Mr Shannon McCoole on a daily basis of that case study in respect of her inquiry and that it should be made public, and she identified certain conditions to do that.

So, it is not an unheard of circumstance, where we have the available evidence, the opportunity for public scrutiny, the importance of securing public confidence in an investigation, that it is necessary for us to ensure that we identify and obviously expose, where there has been maladministration, who was responsible, and of course the findings that would go with it. It is quite clear as to what the independent commissioner says about this, and we are introducing a bill to ensure that happens.

I also inform members that the powers under the Royal Commissions Act would allow him, as they would have allowed Margaret Nyland in respect of her inquiry, the opportunity to suppress any evidence in the event that he made a finding in respect of a public hearing that some statement or some piece of information that is presented is contrary to the public interest—for example, an unsubstantiated allegation. If a witness were to get into the witness box, for example, and say in a public environment, 'I consider that Jay Weatherill has murdered my mother,' then that would be an unsubstantiated statement on the face of it, and it would be quite open in those circumstances for the commissioner to suppress the evidence in respect of that part of the public hearing.

It is important that we arm the commissioner with the tools to ensure that this process is a process the public has confidence in—that they can see how he conducts the inquiry to be fair and of course to ensure that it complies with the law—and also to arm him with the tools to ensure that there is a suppression of evidence. If I were to give members an example of the latter, it would be the Debelle inquiry where there were ongoing police investigations.

In respect of his inquiry into education, the circumstances of a particular event, he declared that there should be a published report with aspects of it concealed. The transcripts of those proceedings were held and suppressed for a period of time. So, we have clear precedent, in respect of both these matters, which is important that we pass today, to ensure that the Oakden scandal is thoroughly investigated by a person who is armed with the tools to both provide a fair representation of that investigation and ensure that there is an opportunity for the public to have full confidence in whatever the findings might be.

In recent days, we have heard the Premier announce that he will not allow cabinet documents to be made available in respect of this proposed inquiry. I found that rather surprising, particularly as his own Attorney-General has announced a protocol in respect of cabinet documents, which is that there will not necessarily be open availability of cabinet documents and submissions but that any application to view a cabinet document which has cabinet protection will be dealt with on a case-by-case basis. I found it rather surprising that the Premier would reject that even before Commissioner Lander in this inquiry even identified any document or documents that he may think would be relevant. It seemed to be a rather pre-emptive strike, more about the protection of the Premier and his government than in relation to the protection of proper process.

Nevertheless, I bring to the attention of members that our Auditor-General, when he undertook an inquiry in respect of the process of unsolicited bids in the Gillman inquiry, viewed the cabinet documents, and in fact cabinet submissions, which, incidentally, were being presented to support the government's contention in respect to submissions that were put after the Renewal SA board had dealt with certain aspects of it. Indeed, in the Auditor-General's own inquiry in December 2014 he highlights on page 17 his reference to the cabinet submission, which was a proposal documented on 13 November 2013.

Integrity agencies from time to time do need to view documents. They do view documents, and for the Premier to actually say in this parliament at this point that there will be no publication or no provision of cabinet documents, either directly for public dissemination or indeed even privately, as they have occurred to the Auditor-General, to the commissioner, I find unconscionably secretive and very concerning, particularly as the Attorney-General has announced the protocol which is to apply in respect of cabinet documents.

Clearly, there must be a balance between the public interest of securing the discussions and, ultimately, determinations of a cabinet. For good reason, we have those rules and we have those standards. But there are certain circumstances where they are important in the identification of integrity investigations and sometimes they need to be produced and appropriately not made public. They need to be produced for the investigative officer to be able to have a clear understanding, and if it is good enough for the government to be happy to rush them in for presentation for consideration by one party of an integrity assessment it should be good enough for Commissioner Lander.

We wish Commissioner Lander well with his investigation. We hope that it will progress promptly. We would like it to be in the envelope of having an opportunity to have public confidence with the scrutiny of public hearings with it. We call on the government to come in and support this bill, which essentially has exactly the same terms of the position we have presented for the last two years, which is now item No. 7 on the parliamentary agenda under private members' bills.

I urge members to think very carefully about this. In respect of those on this side of the house, we are clear about our commitment. Each one of you has a conscience, and I would ask you to exercise that to ensure that we have a proper and thorough and, where necessary, appropriate public examination of this tawdry and disgraceful chapter in the service of public administration of an aged-care facility in this state.

The Hon. T.R. KENYON (Newland) (10:46): I move:

That the debate be adjourned.

The house divided on the motion:

While the division was being held:

The SPEAKER: To explain the situation, standing orders require that a bill be adjourned after its second reading has been moved and the second reading explanation is complete. The motion has been moved by the member for Newland that the debate be adjourned. If that proposition fails, then someone will need to move that standing orders be so far suspended as to allow the bill to proceed.

So, the default position is that after the second reading is moved and spoken to by the mover the bill is adjourned; that is the practice of parliament. But if this motion fails, then standing orders will need to be suspended to enable debate to continue in the second reading. The motion before the house from the member for Newland is that the debate on the bill be adjourned. The ayes will pass to the right of the Chair and the noes to the left.

There being no members supporting the motion other than the teller, standing orders require me to abandon the division and call the motion for the adjournment lost without the division proceeding.

Motion negatived.

Standing Orders Suspension

Mr GARDNER (Morialta) (10:52): I move:

That standing orders be and remain so far suspended as to enable the passage of all stages of the bill to proceed forthwith.

The SPEAKER: That is in order and, as an absolute majority of the house is present, I accept the motion.

Motion carried.

Second Reading

Debate resumed.

Mr TARZIA (Hartley) (10:53): I rise today to support the Independent Commissioner Against Corruption (Serious or Systemic Misconduct or Maladministration) Amendment Bill 2017. We on this side of the chamber support an amendment to the principal act because we support the amendments that are needed in order for transparency to take place here in South Australia. We on this side of the chamber stand for open government. We stand to give the ICAC commissioner the power that he needs to do his job, the power that he has asked this government to provide to him time and time again.

What do they say? The Premier is quoted as saying that he wants to avoid a circus in this place. Let me say of the only circus and all the clowns that the ringmaster is the Premier and the circus is the state Labor government because all they are interested in is preserving their term in government. They continue to hide and stifle any progress or transparency in this regard.

It is not about the government; it is not about preserving their term in government. It is about the victims and the families of victims. Think about the families and victims involved in this horrid, putrid saga. We on this side are here to restore faith and transparency and democracy in this state. We will support the families and the victims involved at Oakden and we will give the ICAC commissioner the power that he needs to conduct this investigation. If he wants it to be in public, then so be it. We commend this bill to the house.

The SPEAKER: Are there any other speakers?

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (10:55): I gather we are dealing with the substance of the bill now?

The SPEAKER: We are—second reading.

The Hon. J.R. RAU: Very good. This is a very interesting bill that has been moved by the deputy leader today. What we are actually seeing is an interesting change in the attitude of the opposition to this matter over the course of the last few months. Indeed, some people have basically observed that the change must have occurred at a party room meeting between senior members of the opposition and Matt and Dave that occurred the other morning.

The fact of the matter is that this parliament debated this matter last year, and there were considerations given to the very question that we are on about now, and I think it is probably important for us to put this question in context so that we understand what we are debating. It goes back to the beginning of the legislation relating to the Independent Commissioner Against Corruption.

At the very beginning of that process, we considered a number of options and, if I recall correctly, the then leader of the opposition, the member for Heysen, had very clear views about the notion of the public spectacle that we see in New South Wales. She was very firm on the notion that the Independent Commission Against Corruption should not be conducting hearings in public, and that was a position that was an agreed position between the government and the opposition. Indeed, the legislation which eventually came forward was legislation which reflected that agreed position.

In that original legislation, there was a contemplation which was actually reduced to elements of the bill that it may be that an inquiry agency, as they were described in the bill—and an inquiry agency in this context would mean the Ombudsman. The Ombudsman might be involved in an inquiry, and in the course of that inquiry the Ombudsman might stumble across things which amounted to, or at least appear that they might amount to, corruption. Corruption under the legislation is defined essentially to be a criminal offence perpetrated by a public official in the course of their duties as a public official.

It was thought that in those circumstances, should the Ombudsman tumble across such a thing, it would be appropriate and indeed necessary that the Ombudsman should have the capacity to refer that matter immediately to the Independent Commission Against Corruption and that the Independent Commission Against Corruption should have the capacity to take over the investigation of that matter both in the context of its original framework, which would have been presumably a maladministration investigation, but also in relation to any dimension that might involve allegations of criminal conduct.

Conversely, it was considered possible that the Independent Commission Against Corruption might commence an investigation which initially appeared to be potentially a matter of involving criminal conduct and it turns out that the matter perhaps does not involve criminal conduct as such but involves conduct that is maladministration or misconduct. In those circumstances, obviously, it would have been necessary and appropriate for the commission to be able to refer the matter back to the inquiry agency, in this case the Ombudsman.

If we look at the legislation itself and at what is going on, and I am looking here at section 36A of the legislation, that section is in the subdivision that relates to action in relation to misconduct or maladministration, and that is the particular thing we are dealing with here. It is important to understand that the Independent Commissioner Against Corruption has indicated that in the context of his present inquiry that is the process he is proceeding under. He is not using the process associated with the investigation of alleged criminal conduct by a public official.

If we go to section 36A, which is the general provision dealing with the exercise of the powers of the agency, subsection (1) provides:

The Commissioner must, before deciding (in accordance with section 24(2)(b) or (c)) to exercise the powers of an inquiry agency in respect of a matter raising potential issues of misconduct or maladministration in public administration, take reasonable steps to obtain the views of the agency.

The agency in this context is the inquiry agency, namely, the Ombudsman. It goes on to provide, in subsection (2)(b):

the Commissioner—

(i) has all the powers of the agency; and

(ii) is bound by any statutory provisions governing the exercise of those powers…

as if the Commissioner constituted the agency

So that we are really clear, as a matter of law the commissioner remains in title the Independent Commissioner Against Corruption. That is beyond dispute. However, inasmuch as the commissioner is exercising a power pursuant to section 36A, I repeat, the commissioner has all the powers of the agency (in this case, the Ombudsman) and is bound by any statutory provisions governing the exercise of those powers as if the commissioner constituted the agency.

That then begs the question: what is it, in fact, that the Ombudsman can and cannot do? I take the parliament to section 18(2) of the Ombudsman Act, 'Every investigation under this act must be conducted in private.' So here we have a situation where we have a proceeding which, but for the exercise of jurisdiction under section 36A of the Independent Commissioner Against Corruption Act, would be dealt with by the Ombudsman. If it were dealt with by the Ombudsman, it would be a matter which, as a matter of law, would have to be conducted in private. What the opposition here is saying, in effect, is that some inquiries which occur using the tools and the framework of the Ombudsman Act will now no longer be heard in private but not those dealt with by the Ombudsman.

I point out that as recently as July last year we were debating this very issue, and the deputy leader in that debate did make some comments about the question of whether or not these things should be presented in public. Certain amendments went through the parliament, with the agreement of the opposition, that did not disturb the arrangements I have just described, even though that was a topic of discussion at that point in time. On 6 July last year, we have the deputy leader on Hansard saying that there is no need to disturb these matters at the present time. We also have—

Members interjecting:

The Hon. J.R. RAU: —on 20 September, the Hon. Mr Lucas in the other place, who was talking about exactly the same matters, saying:

…it would be informative…for [both major parties]…to reflect on their positions in relation to public hearings and the arguments for and against.

And here is the important thing. He continues:

There are certainly arguments for public hearings, but there are certainly arguments against public hearings.

Members interjecting:

The Hon. J.R. RAU: And the Liberal position as at last year was the status quo. We say we should stick with what the deputy leader and Mr Lucas undertook last year—

Ms Chapman interjecting:

The Hon. J.R. RAU: —and have the matter dealt with in due course. There has been a backflip on this by the opposition, presumably stimulated by a conversation with two gentlemen on the ABC the other morning.

Ms Chapman interjecting:

The SPEAKER: The leader will be seated. The speakers for the opposition were heard in silence, yet there has been repeated interjection during the Deputy Premier's contribution, so I call to order the members for Finniss, Stuart, Hartley, Morialta and the deputy leader, and I warn for the first time the deputy leader. Leader.

Mr MARSHALL (Dunstan—Leader of the Opposition) (11:06): I rise to speak on the bill and I commend the deputy leader for bringing this bill to the house. The Liberal Party in South Australia has held the position that our state has needed an ICAC for an extended period of time. In fact, it was the member for Heysen who raised this issue in this parliament more than a decade ago, and what was the consequence of that? Based on self-preservation—let's face it, that is all it ever was—those opposite made sure that we did not have an ICAC in South Australia for an extended period of time. They were dragged kicking and screaming to establish an ICAC in South Australia, and what was established was the most restrictive and secret ICAC in the country.

In the lead-up to the 2013 election, the Liberal Party, those on this side of the house, made it very clear that we wanted open hearings for our ICAC here in this state. That was our stated position. We won 53 per cent of that vote because, I believe, the people of South Australia wanted open and transparent hearings for their ICAC—

Mr Odenwalder interjecting:

Mr MARSHALL: —to get to the bottom of corruption and systemic maladministration and misconduct here in this state which Labor said did not occur in our state. Quite frankly, their position has been made very clear on this. They do not want the people of South Australia to know what is going on. We have a toxic culture of secrecy and cover-up in this state and it is now time to expose this government for the hopeless managers and the hopeless government they are. They have failed the most vulnerable people in our state.

The ICAC commissioner, Bruce Lander, has made it clear that he would like to have open hearings, and in particular he would like to have an open hearing to deal with the matters that have been raised very recently in this state regarding Oakden. Some of these concerns go back not weeks or months but in fact years. He said that nobody has taken responsibility for the shameful episode that has occurred at Oakden. The commissioner believes that somebody needs to take responsibility. The public of South Australia needs to see somebody taking responsibility. Certainly, those of us on this side of the house believe that somebody needs to take responsibility.

Mr Lander has made it clear that, to do this work, he needs two things. First, he needs information provided by the government in the form of cabinet documents. The government has ruled that out. The second thing he has requested is open hearings for his inquiry and, to date, the government has ruled this out. Well, today they have an opportunity. They have an opportunity to vote this piece of legislation through to provide the commissioner with the resources he needs to get to the bottom of this very shameful episode in our state's history to make sure that we can move forward on this. It has been the Liberal Party's position for a very long period of time that we would like to have open hearings.

We completely reject the arguments put forward by the Attorney-General when he says that this has not been our position. I make it very clear that in 2015 the deputy leader responded to the apathy of those opposite in not putting legislation into the parliament that responded to Commissioner Lander's report into the Gillman sorry saga. The commissioner made very specific recommendations for improvement of the ICAC Act. It was the deputy leader who put that legislation before the house. She spoke on that in 2015, and I draw the Attorney-General's attention to those words the deputy leader put on Hansard, on the public record, regarding our position.

In 2016, yes we did support the government's bill because that was all that was on offer. That was all that was on offer, and we wanted to see some reform rather than no reform whatsoever. But we have never, ever moved away from our public position, which is that we support open hearings with our ICAC. That is why the amendment bill that the deputy leader moved in 2015 remained on the Notice Paper.

Today, the deputy leader has come back into this parliament and given the government a further opportunity to join with us, to make sure that we can put an end to this toxic culture of cover-up and secrecy, which is doing the people of South Australia no good. We call upon the government to support this bill and to support it today, and that is why we have brought this urgently to the house.

The SPEAKER: I call to order the member for Little Para for interrupting the Leader of the Opposition's speech.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:11): I wish to thank all members who made a contribution to this debate. I am disappointed that the first law officer of the state—the Attorney-General—should make assertions in respect of this matter. He knows full well what the opposition's position has been on this matter. I find it quite disturbing that, in these circumstances, he should speak to vote this down.

You, sir, have held that office. Whilst you had a different view about whether we should have an ICAC at all, and this government might have given us the skinny, secret alternate of that, we nevertheless have one. For the first law officer of the state to stand in this parliament and say that he is going to keep hearings secret in circumstances of maladministration in our public authorities I find galling and quite sickening.

The other thing I find concerning is that in the course of this debate we obviously considered whether we would all leave and put this off to another day. I call upon the Minister for Trade (the member for Waite) who has stood hand in hand over a period of years to support an open and transparent policy of having open hearings. Whilst a member of the Liberal Party, he went out and advocated to the people of South Australia the importance of having public hearings.

Now, today, we see him sit arm in arm with a government of secrecy and vote with them in respect of the discourse in relation to this bill. I find that very disturbing. He, along with our other allegedly Independent member of the cabinet, has a signed agreement, as we know, to ensure that, on matters they consider to be important, they speak independently and have that opportunity to be independent of government. They have skulked across the floor of this house and maintained support for a government that is wickedly concealing an opportunity for an open and public transparent approach to the investigation of this matter.

I find it sickening to think that there has been no capacity for independence. So anyone over there who has one scintilla of commitment should ensure that we expose it when our public administration has failed, whether a minister has failed or not. We need to make sure that, whether it is a child in a canteen who is being sexually abused or whether it is an old person who is assaulted or drugged in a facility run by a government, we will be there to protect them and that we will root out any failings. We will certainly expose any cover-ups and we will punish those who have attempted in any way to conceal this. That is what is necessary here. I call on everyone on the other side of the house to really call upon their conscience in this matter and vote with us to support this bill.

Ayes 20

Noes 23

Majority 3

Second reading thus negatived.

Mr Pengilly interjecting:

The SPEAKER: The member for Finniss is warned.