Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill

Introduction and First Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:05): Obtained leave and introduced a bill for an act to amend the Independent Commissioner Against Corruption Act 2012. Read a first time.

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:05): I move:

That this bill be now read a second time.

I am pleased to introduce this bill, which amends the Independent Commissioner Against Corruption Act 2012 (the ICAC Act), as a demonstration of the government's committal to address the need for transparent justice in South Australia when investigating serious and systemic maladministration and misconduct in public administration.

As part of the 100-day commitment the Marshall Liberal government made to the people of South Australia, we committed to bring an open and transparent government. We did this for good reason. For too long the former government operated in ways that were anything other than transparent. The difference between this government and the former Labor government could not be more stark.

As members recall, on 28 February 2018 the Independent Commissioner Against Corruption, Mr Bruce Lander QC, handed down his damning report into the Oakden aged care facility scandal. His report exposed scandalous failures and shocking attempts by ministers and senior government officials to keep information and evidence secret by virtue of having their name suppressed. As appalling as Oakden was, it was but the latest in a series of scandals to engulf the former government which knew of no other way to govern but in secrecy.

The former government was responsible for the Gillman fiasco, the purchase of dirty diesel generators, the litany of failures in child protection, and investigations were not prompted by the gross waste of taxpayers' money, failure to follow proper process or failing to act on royal commission recommendations. The former government was only forced into action when they were caught out or when the public pressure forced them to act. Let's not forget that Labor never wanted the ICAC in the first place. Until premier Rann was replaced, the government's refrain was that South Australia was different to other states and that the ICAC was not needed.

However, the ICAC that the next Labor premier introduced was still less than perfect because it did not have the ability to hold public hearings. Fortunately, South Australians resoundingly voted for transparency and accountability on 17 March. They supported a policy and government that would allow the Independent Commissioner Against Corruption the ability to conduct public hearings into maladministration and misconduct.

This is a significant reform, yet one that has been doggedly resisted by those opposite. Clearly, over the last few years, the then government refused to support legislation to allow this to occur. The position is now that the government has changed, and we are here again, and we are committed to the people of South Australia to the passage of this legislation.

Turning to the actual structure and composition of the bill, in short, it clarifies how the Independent Commissioner Against Corruption investigates matters, raising potential issues of serious or systemic misconduct and maladministration in public administration. Importantly, it will provide him with the discretion to hold public hearings. It should be emphasised that the amendments do not affect anything in the ICAC Act in relation to investigations into corruption. The government nor the commissioner support open hearings into such investigations.

As I have advised the house on previous occasions, the commissioner has made this very clear: corruption inquiries by him are matters that he investigates. He does not make any findings, but if he considers there is sufficient weight in the information that he ascertains then it is referred to the DPP or police for the proper administration of those matters. Under the current convoluted scheme, the commissioner's power to investigate misconduct and maladministration is provided by reference to the Ombudsman Act 1972. The Ombudsman has the powers of a commission as defined in the Royal Commissions Act 1917. However, neither of these acts provide a power to conduct an investigation in public.

By taking these powers and inserting them into the ICAC Act, we are consolidating them and then adding the ability to make a choice that those hearings with a public interest can be held openly. Because the commissioner is both the investigator and the decision-maker in these types of investigations, people whose rights, interests or legitimate expectations might be adversely affected must be accorded procedural fairness. Therefore, it is crucial that the process be transparent for that to occur and that the commissioner is able to determine when and if an investigation, or part of an investigation, should be held in public.

This bill does what the commissioner himself has been requesting for several years. However, the Oakden investigation particularly highlighted the issue of open hearings. For those new members who have not read the Oakden report, this shameful chapter in our South Australian history, I urge them to do so. I hope it will be a sobering reminder of how a government has failed in its proper administration and has let down very vulnerable people. It should never happen again. On page 16, Mr Lander says:

This investigation has firmly reinforced my view that the legislation under which I operate ought to be amended to give me the discretion to conduct investigations of this kind in public.

He went on to state:

There is a tension between the Act which provides jurisdiction to investigate and the Acts which provide the powers during the investigation…The tensions could be resolved if the ICAC Act were modified to seamlessly include the powers of investigation and reporting in respect of misconduct and maladministration.

I have previously proposed to the Government that the powers to investigate such conduct be found by a more direct route than is presently the case. The Government did not accept my proposal.

I am hopeful that these issues will be considered again.

The amendments I introduce today address Mr Lander's comments in a practical and simple way. They remove the requirement for the commissioner, when dealing with investigations into matters raising a potential issue of serious or systemic maladministration or misconduct in public administration, to exercise powers of an inquiry agent and to set out the powers and functions relating to such investigations in schedule 3A to the ICAC Act.

The schedule consolidates the powers and functions available to the commissioner under the ombudsman and royal commissions acts, clarifying the manner in which the inquiry is to be heard, the powers available to the commissioner and ensuring those powers are fit for purpose. In particular, clause 6 of schedule 3A clarifies the extent to which legal professional privilege and public interest immunity are abrogated during a maladministration or misconduct investigation, and clause 26 of schedule 3A provides for the commissioner to report on one or more investigations in such manner as he thinks fit. Setting out the powers and functions in this way will ensure that arguments about the scope and nature of investigative powers available to the commissioner are avoided in future investigations of this nature.

With the passage of this bill with the blessing of this parliament, I hope that I never again hear the rude, disrespectful and unacceptable reference to Mr Lander's investigation in both the Gillman matter and the Oakden matter as being an ombudsman's inquiry, as though it was attempting to diminish the value and stature of the inquiry. A number of ministers from the former government fell into this childish trap of trying to diminish the significance of these inquiries by diminishing Mr Lander's status as the inquiry agent.

Mr Lander is the commissioner. He is the Independent Commissioner Against Corruption and he has a role. To try to diminish that was completely unacceptable and it should never happen again. We appoint these people to do a very serious job. It is a difficult job. They have to bring governments to account. We are in the government now and we expect that we should be up to that standard to ensure that we do not fall below what is acceptable. But, it should never be a situation where we go along and try to diminish the status of an inquiry by trying to demean it into something that it is not. I hope that all future governments do not fall into that trap.

Finally, the bill includes three amendments to improve some operational aspects of the legislation. For example, clause 10 of the bill inserts new section 39B into the ICAC Act to provide a delegation power so that if for some reason the commissioner is unable to conduct an investigation, the deputy commissioner or the examiner may head the investigation and report to the commissioner. The bill also provides for the person heading the investigation to make non-publication or suppression orders. These changes are necessary for purely practical reasons.

As the Premier has made clear, excuses which washed with the former government are no longer good enough. There will be no protection racket for incompetence or wilful ignorance, and I welcome these changes, which are solely designed to make it easier to get to the bottom of corruption and maladministration allegations. The Premier's comments have been very clear on what his expectation is in respect of his government and the ministers in it. The commissioner will have the discretion as to whether a hearing will be held in public, in private, or both, and in this way we recognise that one size does not fit all. It is for the commissioner to determine the way in which the public interest is best served in the conduct of his own investigations.

The Labor Party has an opportunity to put its historical resistance behind it and support this bill. I encourage them to support the government to ensure that we do appropriate public examination when so required. We have heard from the new Leader of the Opposition of his desire to listen to the people of South Australia. Well, he has two ears and one mouth and I hope he uses them in that proportion because he needs to hear loud and clear the public's demand for transparent government. I commend the bill to the house and I table a copy of the explanation of clauses.

Debate adjourned on motion of Mr Odenwalder.