Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 May 2018.)

The DEPUTY SPEAKER: Member for Kaurna, are you the lead speaker?

Mr PICTON (Kaurna) (21:24): I am the lead speaker, but I promise that I will not be using the unlimited time available to me.

Mr Mullighan: Shame!

Mr PICTON: That's right. I have listened to the lesson from the Deputy Premier and her concern about the use of public sector resources waiting in this house.

Mr Mullighan: Wasting the time of the parliament.

Mr PICTON: That's right. This is the first bill on which I will be representing for the Hon. Kyam Maher from the other place. During my whole period in parliament, we have had the arrangement of the former attorney, the member for Enfield, and the current Attorney, the member for Bragg, in heated debates and often very, very long debates in this house on many of the attorney's bills.

Sadly, that will not be repeated in this house with our shadow attorney-general in the other place. I will do my best as the health spokesperson to represent him, but I think it is fair to point out at this point in time as we begin this debate that in a large number of those cases it will be our shadow attorney-general who will be going through the bill in some detail in the other place. Obviously, the government has the numbers here, and we understand and appreciate that, and there will be significant in-detail scrutiny of Attorney bills in the other place.

With that as a beginning, I rise to speak on this important Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill and indicate that Labor does not oppose it but that we will continue to consult on the nature and effect of the bill to see if there are any ways in which it can be improved. The bill amends the Independent Commissioner Against Corruption Act 2012 (the ICAC Act) and enables the Independent Commissioner Against Corruption to investigate matters raising potential issues of serious or systemic misconduct and maladministration in public administration in public.

In the past, members on our side of the chamber have had concerns about public hearings and certainly have had concerns about the impact those hearings would have on public servants who would get their names tarnished through such hearings, particularly those people who were innocently named and then found to have no cause to answer. We have had the time to consult, review and reflect on our position on this bill and others. That is the process we are undertaking across the board, as we conduct a listening process after the election and look to review our policy areas in a number of ways, and we are willing to look at matters like this and other matters as well with fresh eyes.

However, it is important to note that as this bill progresses through this chamber—and we of course understand that the government has the numbers here—and we will be seeking to do that quite swiftly, and then proceeds to the other place for deliberation, we will continue to consult on this bill. That is a process being led by our shadow attorney-general, Kyam Maher MLC, at the moment. He is consulting widely and having a wide range of discussions about the bill and will be considering the operations and implications of the scheme that it proposes. With those few words, I once again indicate that the opposition will not be opposing the bill at this stage in this chamber but that we will be continuing to consult on it before it gets to the other place.

Mr TEAGUE (Heysen) (21:28): I rise this evening to commend the bill to the house. The Independent Commissioner Against Corruption (Investigative Powers) Amendment Bill 2018 achieves two primary outcomes. Those outcomes are, firstly and importantly, that it fulfils yet another of the Marshall government's election commitments to give the ICAC commissioner the discretion to hold public inquiries in cases that involve potential maladministration or misconduct in public administration—so another election commitment met.

Secondly and importantly, and I will step through this in my subsequent remarks, it clarifies the commissioner's powers by setting out those powers within a new schedule to the act, thereby enumerating them within the act rather than by reference to the Ombudsman Act or the Royal Commissions Act and therefore powers by reference. Mr Deputy Speaker, I should indicate that I am the lead speaker on the debate. I do not intend to occupy the entire evening.

The DEPUTY SPEAKER: Thank you, member for Heysen. The floor is all yours.

Mr TEAGUE: As members on this side are conscious of, in amending the Independent Commissioner Against Corruption Act 2012 we are dealing with circumstances that are evolving. This legislation is relatively new to this state, and the focus should always remain on the need to ensure that we monitor the work of the independent commissioner. We are aware that we are dealing with circumstances that are novel and evolving. That is exactly what the work of the bill is intended to achieve.

Relevantly, it comes against the most recent backdrop of the Oakden inquiry, which is a painful recent memory for all of us in this state. It provides an immediate context in which the bill comes before this house. Not only is it a key example of an inquiry by the independent commissioner that may well have served the state better should there have been capacity for public hearings to occur but it has also brought the public's focus onto the merits of public hearings for inquiries of that nature. If I may say, it has enlivened the proactivity of the commissioner in seeking to make recommendations to government about how the commissioner can exercise his duties more effectively in the discharge of his role as independent commissioner.

I say again, and I wish to stress this, that it is my hope that the ability that is conferred upon the commissioner by this legislation, by this new schedule 3A to the act, to report on matters of maladministration or misconduct in public office will be used wisely. Like all members, I am sure, I am concerned that, if that is not the case, then clearly there is the potential for such public disclosure to be used by the media, for example, to harm the reputations of the subjects of such inquiries. We are very conscious that this conferral of additional powers involves the important exercise of the discretion of the commissioner.

It is important, too, in this regard that the bill is targeted at those functions of the independent commissioner that relate to inquiries into maladministration and misconduct in public office and not in relation to inquiries dealing with findings of corruption. That is for the important reason that, in relation to corruption investigations, it is the function of the independent commissioner to report to the Director of Public Prosecutions and it is for the director to determine, in those circumstances, whether or not to press any relevant charges.

So the powers in relation to public hearings are thereby appropriately confined and focused upon those inquiries into maladministration and misconduct in public office. As I have indicated, we are fortunate in this state to have had a diligent and proactive commissioner who has taken proactive steps to advocate in favour of transparency across the board in relation to the activities of the commission. I will highlight two areas in which the commissioner has been proactive. The first is in relation to the provision of briefings.

The commissioner has been proactive immediately upon the election of the new government in providing, and offering to provide, briefings in relation to the workings of the commission and has done so by briefings to the Premier and the Deputy Premier. He has offered briefings to cabinet ministers and senior officials with a view to ensuring maximum transparency in relation to the activities and outcomes of the commission's work. That is one example, one branch, of the advocacy and proactivity of the commissioner in terms of seeking avenues for further transparency of the commission's work. The other is very much the subject of the bill, and that is the increasing transparency in relation to hearings of the commission.

We are fortunate to have a diligent and proactive commissioner and, indeed, the government has consulted with the commissioner in relation to the shape of the increased powers and discretion of the commissioner to conduct public hearings and, in that sense, has embraced the commissioner's advocacy for those important additional powers. I refer to the remarks of the commissioner in this regard. Again, I am conscious here of the importance of continuing to assess the operation of the new legislation. The constant review of powers of this kind is most important and we should continue to adopt that disposition as this legislation and the activities of the commission evolve with a view to future reform.

The bill will achieve a number of practical outcomes. We are doing this in one important practical way because in the course of the Oakden inquiry a great deal of time and legal argument were spent as the result of the considerable uncertainty regarding the commissioner's powers as they exist under the 2012 act prior to the introduction of this bill. As I have indicated, the powers of the commission to date rely in part upon borrowing powers from other legislation, and there is no reason for that to occur.

We should not, four or 4½ years down the track, be in a position in this state where the important work of the independent commission is in any way conducted in circumstances of uncertainty as to the scope of the power of the commission to carry on its work. In terms of the Oakden inquiry that I referred to earlier, as well as the Gillman inquiry, and the acquisition of diesel generators by the former government, we have seen examples of the desirability for more clarity around the powers of the commission.

I have listened with interest, and I welcome the opposition's support of the bill that is before the house presently, as well as its reconsideration of its view, post election, about this matter. It is important to note that the opposition has an unenviable, indeed invidious, record on this matter in evolving circumstances. Labor does not have a good record in this regard. It is a matter of record that the former government was adverse to—indeed afraid of—transparency and accountability and resisted attempts that this side of the house made in opposition to advance the cause of the transparency of the commission.

We recognise, in bringing this bill to the house, that we have obligations to the South Australian public, and we are committed as a new government to governing openly and transparently. The bill is an integral part of, and speaks loudly to, that commitment to transparency and accountability across government. That is consistent with a suite of other legislation that is on its way to the house. This is a matter that will be consistent, going forward, in this new government.

I have said throughout my remarks this evening on a number of occasions that we are dealing with an evolving legislative environment—indeed, an evolving process of review in terms of the work of the independent commission. Importantly, this bill provides, at its core, for the exercise of important discretions by the commissioner. It should come as no surprise to members that those are important discretions to be exercised in the public interest by the commissioner.

The bill sets out the grounds on which the commissioner may make determinations, but I stress the importance of the discretion that is placed very much in the hands of the commissioner by dint of this new bill and the introduction of the new schedule 3A by clause 15 of the bill. The powers that are contained in schedule 3A—and I commend an appraisal of the new structure to all members—now make the scope of the powers that are afforded to the discretion of the commissioner readily available and readily interpretable within the bounds of this one act.

Importantly, the introduction of schedule 3A, which is very much the focus of my remarks this evening, allows the commissioner to determine, at the commissioner's discretion, whether or not it is in the public interest to conduct public hearings. It is important to note that, within the exercise of that discretion, the commissioner retains a discretion to carve out matters that ought to be heard in confidence and so there ought to be nothing startling about the new schedule 3A and the discretion that is conferred upon the commissioner by dint of the bill.

The important, if one will, take-home message that I would leave with members of this house is that, by conferring what are incremental and evolving additional powers upon the commission and the commissioner and by conferring the discretion that the bill confers upon the commissioner, the government is very much concerned to ensure that this state enjoys a process of oversight in the interests of all South Australians that has a maximum of transparency and accountability, while at the same time ensuring that these very wideranging powers are monitored by parliament and considered very carefully in the evolving environment in which they are granted.

In concluding my remarks, I make the important observation that at all times in these matters there are two bodies that are charged with oversight of the commissioner in the exercise of these new powers. Those are, firstly, the Supreme Court, to which applications may be made in circumstances of controversy—that is right and proper—and, secondly, this parliament.

In commending this bill to the house, I again stress the importance of ongoing vigilance and ongoing monitoring of the circumstances in which the independent commission conducts its work, the evolving environment in which that occurs and the need for this parliament to do all it can to ensure that we have an environment of increasing accountability and transparency. With those remarks, I commend the bill to the house.

Debate adjourned on motion of Mr Pederick.

At 21:49 the house adjourned until Wednesday 30 May 2018 at 10:30.