Independent Commissioner Against Corruption (Serious or Systemic Misconduct or Maladministration) Amendment (No 2) Bill

Second Reading

Mr MARSHALL (Dunstan—Leader of the Opposition) (10:31): I move:

That this bill be now read a second time.

This is a real test for this government today. They failed the test the last time it was brought to this house. In fact, it was brought to this house many, many months ago by the deputy leader. That bill was designed to provide the commissioner against corruption in this state with the opportunity, at his discretion, to hold open hearings.

When we introduced that bill, it sat on the paper for an extended period of time and it was only brought to a vote late last month. At that opportunity, the government squibbed. The government said, 'No, we want to continue this toxic culture of cover-up and secrecy in this state. We reject what the Independent Commissioner Against Corruption has called for and we want to continue with this completely unacceptable situation, which is not in the public interest, and it's certainly not in line with public expectations.'

Since the rejection of this bill, the people of South Australia have made very clear—extraordinarily clear—what they expect from their government. They expect their government to fulfil the requirements laid down by the Independent Commissioner Against Corruption, Mr Bruce Lander. He says that he wants to have open hearings at his discretion. He has more specifically said that he wants to have open hearings as they relate to the Oakden crisis presided over by this negligent government for an extended period of time.

I make the point that in the other place the Hon. Dennis Hood has introduced an identical bill to that which the Liberal Party has put in place. The other place has passed that bill. Every non-government member of the Legislative Council has supported this bill because every non-government member of the Legislative Council knows that this is in the best interests of transparency and doing the right thing by the people of South Australia.

It has passed that house. It returns to this house and today comes the day of judgement where this government can do the right thing by the people of South Australia. More importantly, they can do the right thing for the families of the victims of this Oakden tragedy. I have met with those families subsequent to the rejection in this house, the disgraceful rejection of this very sensible bill which is supported by the Independent Commissioner Against Corruption.

They are dismayed. Their families have been affected very significantly by the failures of this government over an extended period of time. They urge all members of this house, Liberal, Labor, Independent, the Greens and the crossbenchers, to support the Independent Commissioner Against Corruption. They urge every member of this parliament to do the right thing. The Legislative Council has done the right thing. They have passed this bill and it now returns here today.

The ICAC commissioner himself has requested these amendments to allow him to have the discretion to hold open hearings in relation to maladministration—not corruption, maladministration. He does not indicate to the opposition that he will be holding open hearings for every single case. This is some of the nonsense that has been put about by the government, that all of a sudden every single public servant in this state will be subject to open hearings. That is not his intention, but he has publicly called for the discretion to hold an open hearing for Oakden. He says that he needs it to expose a decade of neglect and abuse at this state-funded facility.

The government's refusal to support this bill is a continuation of their toxic situation of cover-up and secrecy here in this state. This bill is no more or no less than what the commissioner himself has called for. It does not cover corruption. It is completely at the discretion of the commissioner. As I said, I personally met with representatives of the families and their key request to me was to keep fighting for open hearings so that the truth can be known and the people of South Australia can know what has occurred.

In particular, they believe, and I support them, that by having an open hearing it will get greater publicity and other people will come forward to fill in the missing parts of the story of what occurred with the tragic circumstances of their family members at the Oakden. To date, the government stands opposed to the pleas of the families. Only today, we have found out that the Premier is not honouring his commitment to the families that the Coroner is funded to undertake any of the inquests that he needs to make in relation to Oakden.

He needs to explain to the people of South Australia in this chamber this morning why this commitment that he has made has been broken. He needs to explain it to the parliament, he needs to explain it to the people of South Australia, but most importantly he needs to explain it to the families of the victims at Oakden. The Premier has made it clear that it will stand by its position. My plea is that the government reconsiders this. My plea is that the Independents—the member for Florey, the member for Waite, the member for Frome and the member for Morphett—consider this very carefully and that at the opportunity to vote they consider the families and they consider what is in the best interests of the people of South Australia.

I believe that if the Premier honestly believes that this is in the best interests of all South Australians, he should show the courage of his convictions and not have a binding vote of his party but instead have a conscience vote in this parliament. Let the people of this parliament decide without a binding vote of the Labor Party what is in the best interests of the people of South Australia. I thank the Hon. Dennis Hood for introducing this bill. It is an important bill. The government has an opportunity to do the right thing by the people of South Australia and we hope that they do also support this most important bill today.

The Hon. J.W. WEATHERILL (Cheltenham—Premier) (10:39): I rise to oppose this bill. Of course, we were debating this bill just a month ago and it was disposed of. So this is transparently a political stunt to bring back a bill that had already been debated and rejected by this chamber just a month ago. It can only be that.

The first thing I should do is address the present contemporary concerns that are expressed about this issue, namely, the concerns expressed by the families of the Oakden victims. My message to them is that they will get a public finding, and I fully expect that it will be published. It is at the discretion of the commissioner, but I fully expect that he will publish his findings, so they will see the transparency and the openness that they expect from this inquiry. I think the sad thing about this is that some—

Members interjecting:

The DEPUTY SPEAKER: Order on my left!

Members interjecting:

The DEPUTY SPEAKER: Order on both sides of the chamber! Your leader was heard in silence. I remind members of the standing orders. The role that you have asked me to play is to keep order in the house. I need your cooperation to do that.

The Hon. J.W. WEATHERILL: Can I say to the families of the Oakden victims that they will have public findings and they will have an open and high-integrity process which leads to that. There should be no doubt cast on the integrity of this inquiry. I think the sad thing is that the public debate has cast doubts on the integrity of this inquiry and that should not have happened. It is regrettable that a public debate has been raised about what will be, I think, a high-quality piece of work that will be carried out by the well-respected Independent Commissioner Against Corruption exercising his powers as an ombudsman.

Mr Marshall: He wants the open hearing.

The Hon. J.W. WEATHERILL: That's a very good point from the Leader of the Opposition, because it goes to the heart of the desperation of those opposite. Those opposite, after the Gillman inquiry, were faced with the very same arguments. After the Gillman inquiry, the Independent Commissioner Against Corruption asked for public hearings, and this parliament considered that request and rejected it. It rejected it for good reasons. The question becomes: why are those opposite changing their position in relation to public hearings in relation to the Independent Commissioner Against—

Mr Marshall interjecting:

The DEPUTY SPEAKER: Order on my left!

The Hon. J.W. WEATHERILL: The Liberal Party had an opportunity in the upper house to reject their position. On the public record, we had the shadow treasurer, the Hon. Rob Lucas, make it clear that he supported the status quo. They had the opportunity to consider the issue and they decided that the idea of public hearings in relation to the independent commissioner's role when he is performing his Ombudsman's function was not a good idea.

So what has changed? What has changed is the increasing desperation of those opposite concerning their electoral prospects. We have seen it today with the cancellation of pairs, against parliamentary convention. We have seen it with the rejection—

Members interjecting:

The DEPUTY SPEAKER:Order on my left!

The Hon. J.W. WEATHERILL: —of the budget, once again a breach of convention. This is what happens when an opposition becomes a little desperate in the lead-up to an election and starts—

Members interjecting:

The Hon. J.W. WEATHERILL: This is a—

Members interjecting:

The DEPUTY SPEAKER: Members are making it increasingly difficult for me not to start calling them to order and warning them, which would have a detrimental effect on question time, I presume; so I am asking you to cooperate and observe the standing orders. Premier.

The Hon. J.W. WEATHERILL: This is important because both of these issues, the rejection of the budget and also the voting for the public hearings in relation to the ombudsman powers of the Independent Commissioner Against Corruption, are the sorts of things you would advance if you expected to remain in opposition. Can I say to the frontbenchers over there, if they were ever serious about—

Mr Gardner: Just because you're afraid of scrutiny.

The DEPUTY SPEAKER: I call the member for Morialta to order.

The Hon. J.W. WEATHERILL: If those opposite are ever serious about becoming ministers of the Crown in the government, you will be hoping against hope that this goes down. You will be hoping that we are successful.

Members interjecting:

The Hon. J.W. WEATHERILL: You will, and I will tell you why. I will explain why.

Members interjecting:

The DEPUTY SPEAKER: Order!

The Hon. J.W. WEATHERILL: Let me explain why.

Members interjecting:

The DEPUTY SPEAKER: Premier, could you just sit down for a moment. Everyone who has moved their lips is called to order. The only people who did not say anything are the members for Bright, Goyder, Davenport and Mount Gambier, and I do not think the member for MacKillop said anything either. And the member for Morialta is warned for the first time.

The Hon. J.W. WEATHERILL: The way in which this operates is that when an inquiry is being conducted by the Ombudsman, it is a relatively informal process. At the moment, people come along without legal representation and propositions can be put without being tested. Imagine if all of that was made in the public sphere and untested allegations were made publicly against a minister of the Crown. In the period between when the allegation being made and the time it was rebutted, or even when the findings are made—which could be many months and was, actually, in the case of the Gillman inquiry—it would render the position of the relevant minister untenable. That is really what you are voting for here.

Maladministration is a very broad concept. Just imagine if you are a minister and the head of a department and something goes wrong and an inquiry is conducted by the Independent Commissioner Against Corruption and you are called up before such an inquiry and somebody—maybe to try to protect themselves, a public servant who decides to throw a minister under a bus—makes an allegation. During the period of that allegation being made and the period of it being rebutted, or, indeed, the findings being made, it could destroy your career. I will give you one example of some poor gentlemen in the New South Wales system, Dr Peter Phelps, a Liberal New South Wales parliamentarian who made a statement about the New South Wales ICAC. He said:

Nobody wishes to be seen to be opposing anticorruption measures—which is ultimately how it is usually and falsely portrayed—but we all know about the structural failings of the existing regime. You have a situation where a person is innocent of any wrongdoing, but they suffer guilt by association for merely attending a hearing of ICAC.

The names of witnesses are reported in the media with comparable frequency to those [who] are actually accused of misbehaviour. But in the eyes of the public, even the mere attendance at ICAC attaches to the person a stench of corruption.

The existing system is actively aided and abetted by many areas of the media, notably the Fairfax press and the ABC—

Must be Liberal—

The reason for this is not hard to fathom, and does not rely upon vainglorious notions of the 'noble role of the fourth estate'—rather, ICAC simply provides great copy.

There is no need for investigative journalism; you can just transcribe the lurid sections of the day's proceedings. You can slaver over the prurient details and faithfully recite the promises from Counsel Assisting of expectant horrors to come. Whether these horrors ever eventuate is irrelevant; whether the person's wrongdoing is ever evidenced in later hearings, is also irrelevant. All that matters is that you, as a journalist, have your story for the day and 'bugger the reputation' of those who [would] be falsely implicated.

If you are going to advance the idea that somehow an ombudsman's inquiry is different, I refer you the remarks that were made by the independent commissioner himself. He insists on being called the Independent Commissioner Against Corruption, and cavilled against the suggestion, when the Attorney suggested he was acting as the Ombudsman—

Mr Gardner: As you have as well.

The Hon. J.W. WEATHERILL: —that he was doing so.

The DEPUTY SPEAKER: Member for Morialta!

Mr Marshall interjecting:

The Hon. J.W. WEATHERILL: He insists on being known—

The DEPUTY SPEAKER: Leader!

The Hon. J.W. WEATHERILL: —because he wanted, appropriately—I do not suggest it is inappropriate—his inquiry to be given the gravity of being conducted by an Independent Commissioner Against Corruption. Having done that, once it becomes apparent that you are called before such an inquiry, the process of guilt sticks to you.

Nobody likes the idea of anything being dealt with in private. Everybody likes the idea that everything should be public. I am sure all our friends up there would love to see the soap opera played out on a daily basis with ministers trekking along and being uncomfortable in relation to questions being asked. Make no mistake that what would happen is it would slow down the processes in the work of the Ombudsman. The very first thing is that everybody would want to know what the contentions were that they had to grapple with, what it meant and whether there were going to be allegations against them.

The second thing that would happen is that everybody would seek to be legally represented. The third thing that would happen is that witnesses would then know that they are going to have their evidence in the full public gaze and many of them may choose not to be witnesses in those circumstances. All those things would undermine the relatively informal and important process.

My plea to the house is this: do not take this short-term, opportunistic decision. It will damage the workings of government. It will not protect those families of the Oakden victims. They will get a proper and full public explanation of this inquiry when it is published later this year, as I fully expect it to be.

Mr DULUK (Davenport) (10:50): I rise to support the bill introduced by the Hon. Dennis Hood in the other place. It is quite the opposite, Premier: this bill and the opportunity for an open ICAC is an opportunity to give the people of South Australia a voice, for the people of South Australia to know what this government has been hiding for years from the people of South Australia, and to have their faith restored in our systems and in our institutions that has been so lacking, for so long, for so many years by those opposite.

Ultimately, this bill will allow the ICAC commissioner, in his capacity as the commissioner, not as the Ombudsman, to hear those hearings as he sees fit, with his integrity and discretion to have that hearing in public. Why would any of us want to oppose transparency? What do we have to hide? As the member for Waite said yesterday in his deliberations about the bank commission: open and clean air is the best disinfectant. Why would that same principle not apply to this Oakden scandal?

I know why the government does not want to have an open hearing into Oakden—because they are embarrassed about what an open hearing may bring out in the lead-up to an election. That is the problem, because if they were not embarrassed about what it will bring to the fore there would be no problem. We already have the reviews that have been undertaken by government agencies—and these reviews have been going on for a long time—but this government has not brought those reviews and findings to the people of South Australia.

Finding No. 2 of the review found that the Oakden facility is more like a mental institution from the middle of the last century than a modern older person's mental health facility. That is the type of information that the government would not want in the public domain. If you were afraid of open hearings, as they are, you would not want the people of South Australia to know that staffing at Oakden has been inadequate for years and years and years. You would not want them to know that there has been a culture of corruption, cover-up, poor morale, disrespect, bickering, secrecy, an inward-looking approach, control and a sense of entitlement and indifference.

This is the culture that has been happening at Oakden. This is the culture of this government, and you do not want to see that culture available to the public because you are embarrassed by it. But if you had nothing to hide, you would support these most important measures. If you were not embarrassed and you had nothing to hide, then you would not have your review into Oakden only looking at 2016; you would go back through the whole term of government. You have not allowed that to happen, and the only way that it will happen, the only way for the families of the victims and those who have been affected and those who have died in these institutions and their families to get the respect and the closure they need is to have an independent and public inquiry into Oakden so that they can have their belief and faith restored in our system.

They are not going to get it from this government. They are not going to get it from the Premier. They certainly will not get it from the Minister for Mental Health, who has been presiding over the Oakden scandal and has failed to answer question after question. They will not use parliament as the right forum to be open and honest. They will not use the department as the right forum to be open and honest. All we are left now is for the people of South Australia to have an independent commission against corruption to use its discretion for an open hearing. If we cannot support that in this parliament, then I think that reflects poorly on all of us.

As the leader alluded to in his speech, the only people who are stopping an open inquiry into Oakden are the government and those members who support the government. Those Independents opposite who support the government and the Labor Party themselves are the only people in this parliament who do not support open hearings; the rest of the crossbench does, as so many of us do, and that is what we need.

They do not want to hear the story because if we have an open inquiry into this Oakden mess, we will know that for years and years recommendations from departments, from the Office of the Ageing and from people implementing the dementia action plan in 2011 have been calling for more funding into Oakden and into mental health and geriatric facilities in South Australia. Going back to the Chief Psychiatrist's report, from way back in 2007 we know that there was a need for more funding into Oakden. We know that there were all these plans and recommendations to be put into place, but they have not been implemented by this government.

We cannot trust this government to do the right thing. We cannot trust the ministers to do the right thing. All South Australia and South Australians have now is the commissioner himself to allow there to be at his discretion an open inquiry into Oakden so that the people of South Australia and the victims of the families of the Oakden facility can have their say in public.

The Hon. G.G. BROCK (Frome—Minister for Regional Development, Minister for Local Government) (10:55): They can throw the vibes across, criticise and goodness knows what else, but personally this is an issue that we really have to think very seriously about. The first thing I want to do—

Members interjecting:

The Hon. G.G. BROCK: You may interject, you may criticise and laugh and all that, but first of all I want to make it very clear to this house—very clear—that when I make any decisions in the house I make them with the very best intentions and with information with regard to that. I have given this very, very important issue of open hearings a great deal of thought and very careful consideration. I have not taken the decision or any of my decisions in this house lightly. I try to do the right thing by what I consider the best for the long term and the best opportunities at the end of any investigation.

What occurred at the Oakden facility is clearly a very serious matter that deserves thorough investigation and an explanation as to why and how it happened. I think we would all agree in this house that the community wants and deserves to know the answers. To those opposite, I want those answers, as we all do. Others in this place may well have different agendas, but my decision has been made on the basis that hearings are private for a very good reason: to ensure people's privacy, and that is a prime concern for me, especially for persons compelled to appear and answer questions. They and their reputations must not be placed at risk or subject to public scrutiny at the investigation stage.

The Premier has indicated—and I also read about Dr Peter Phelps, the New South Wales Senator, and I am not going to go over that again—

Mr Tarzia: It is exactly the same. That's the same notes.

The Hon. G.G. BROCK: People on the other side can threaten me, but I will always vote with my conscience. Whether the commissioner has his hearings in—

Members interjecting:

The DEPUTY SPEAKER: Minister, sit down. I remind members on my left of the standing orders and the necessity to give each member the respect that they deserve while they are on their feet. I will have to start bringing members to order and warning them, which will affect, as we said before, question time. Minister.

Mr Pengilly: Plagiarism.

The DEPUTY SPEAKER: The member for Finniss is warned for the first time.

The Hon. G.G. BROCK: Whether the commissioner has his hearings in public or in private, he will hear all sides of the story and produce a public report at the end of his deliberations—not a secret report, as has been mentioned in the media and by others, but a public report for everyone to read. This can be done, as has occurred in other investigations, with witnesses feeling confident to come forward and present their cases without being judged by others on a daily basis. Any individual is entitled to the presumption of innocence.

We need to be very careful to avoid situations where witnesses, including doctors, nurses, carers and ministerial staff, are not prejudged or tagged in any way during public hearings. We must avoid situations where allegations may be reported extensively in the media on one day only to be overturned in evidence given by other witnesses at a later time during the hearings. This would be unfair to witnesses appearing who may not have legal representation or the resources to protect themselves.

In many cases, they would also not have the necessary skills to deal with the media after giving their evidence in public. I do not think that any of us would want to see a media pack waiting outside the hearings each day, ready to pounce on witnesses who have testified in good faith. We have seen many occasions, particularly interstate, where witnesses have been completely exonerated but only after their reputations, health and wellbeing have been permanently, utterly and unfairly damaged. Mud sticks.

A daily parade of witnesses before the media will not make this investigation effective: it will hinder it. Again, I repeat: the commissioner will produce a public report at the end of his investigations. I want to ensure that this investigation results in systems and procedures being put in place so that our elderly residents are looked after compassionately and safely. As I said earlier, I am very concerned about what happened, and I want answers. We all do.