Bills

Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 May 2018.)

Mr PEDERICK (Hammond) (16:54): I rise to speak to the Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018. There are two primary outcomes of this bill: it fulfils our government's election commitment to give the ICAC commissioner the discretion to hold public inquiries in cases that involve potential maladministration or misconduct in public administration, and it clarifies the commissioner's powers by enumerating these in a schedule to the act rather than by reference to the Ombudsman Act or Royal Commissions Act.

There are good reasons that we are doing this. A lot of time was spent on legal argument during the Oakden inquiry on the uncertainty regarding the commissioner's powers. If there ever was a dark day in South Australia's history, it was the debacle of Oakden, not just what happened there—

Ms Luethen: Shame!

Mr PEDERICK: —absolutely, shame—at Oakden with the mistreatment of our frail and our elderly who had no right of defence, but then the almost—what would you say—non-caring view of the previous minister, who did not take the time to read a very short report, from what I understand, of about 30 pages. It is very disturbing when things like this happen, and it could have been tidied up very quickly by the previous minister, and it was not.

When our most vulnerable, whether they be, as in this case, our elderly or our young and they cannot look after themselves, it is disgraceful. There is no reason why a fundamental integrity body such as ICAC should have to borrow its powers from other entities or have to endure costly delays when investigating suspected maladministration or corruption. South Australia cannot afford to have an ICAC the powers of which are unclear. We have already had Oakden, Gillman and the acquisition of dirty diesel generators. I look at—

Mr McBride interjecting:

Mr PEDERICK: —absolutely—Gillman, and we were told that there were going to be 6,000 jobs at Gillman. There was an unsolicited bid. Other bidders were blocked out. I would like to know how many jobs there were in the legal profession, but my understanding is that the roomful of lawyers would have been the only jobs that came out of the Gillman debacle.

I used to work in the oil and gas industry in the Cooper Basin and in the Mereenie oilfield outside Alice Springs, as I have mentioned in this house plenty of times. I acknowledge the potential of what we have in this state of servicing especially the Cooper Basin and getting a sealed road up the Strzelecki Track. It is going to be a big job, but, apart from that, was the so-called commitment to these so many oil and gas jobs that were going to happen under the previous government. Well, what did we see? It all fell apart because of the shroud of secrecy around Gillman, and the only jobs that were provided were those in the legal profession.

We saw dirty diesel generators come about because the previous government, with different premiers over time, decided with their climate change policy that we will just go hellbent on having wind farms and solar power with no consequence on base load. Well, there were consequences of base load and, as we heard today, 28 September 2016 will stand in my memory forever. It was when Labor completely failed this state, apart from whatever else it got wrong on electricity supply to this state. The whole state went out from Mount Gambier to Border Village, and it was an absolute disgrace.

We were running on emergency generators here in Parliament House. I think it was 4.16pm on that day that everything fell to bits and, as a matter of safety and security, we shut down debate in the house so that public servants and people who work in this place could try to get home safely. People were locked in gridlock that day across the city. It would take an hour to get from one side to the other because we were communicating with people trying to get across the city. I was not game to leave the building until late at night because there was no point. You would just be locked up in a traffic jam outside. This was because of the failed energy policy of the previous government.

There was a contribution today about the policies around power. I can tell you, sir, that, as we know, $24 million would have kept Port Augusta going. But, oh, no, the green-eyed genie had come out of the bottle: 'We'll just knock Port Augusta down,' and I think about 540 megawatts of base load power were just knocked out of the system. We have something like 53 per cent of renewables in this state, and when the wind does not blow and the sun does not shine guess what? The lights go out. In the end, we have had the most expensive electricity in the world, which was inflicted on us by the former government. It is a disgrace.

Then there were hundreds of millions of dollars invested in diesel generators. Let's not be too cynical, but we have a previous government that was supporting solar power and wind power, but when it all hit the fan—because the fans were not working—we bought nine diesel generators in this state because that is where you will get base load generation. They were going to burn, at full noise, I think it was 80,000 litres of diesel an hour. I remember interjecting on the former energy minister, suggesting that he did not need a truck to deliver the fuel to these generators; he would need a ship. It is just mind-boggling to think we were left in such a situation that we saw a dirty deal done over dirty diesel generators.

The former Labor government was afraid of transparency and accountability, but we recognise our obligations to the South Australian public, and we are committed to governing openly and transparently. This bill is an integral part of our transparency and accountability agenda across government, and this includes other bills. One of them we hope to progress later on today—protecting journalists from having to reveal confidential sources and strengthening protections for whistleblowers. It will be interesting to see what the journalists who are now members of parliament on the Labor side of the house have to say about that legislation.

What we are doing with this current legislation involving the ICAC is that this bill allows for the commissioner to determine whether any inquiry will be public, private or partly both. We will set out the grounds on which the commissioner can make a determination on the same. The bill also allows for the commissioner to delegate his powers to a deputy commissioner to conduct an investigation. The commissioner may also issue directions regarding the disclosure and publication of evidence in an investigation—this is currently found in the Royal Commissions Act—including the power to issue non-publication orders retrospectively, which is currently in the Ombudsman Act.

The bill will also provide the commissioner with the power to compel the production of material that is otherwise subject to immunity or privilege, save for limited exceptions as recommended by the commissioner. It will also provide the commissioner with the power to make public statements or publish a report in respect of an investigation as well as to make findings as to whether maladministration or misconduct in public administration has occurred, along with recommendations. It will also provide the commissioner with contempt powers, which is also currently found in the Royal Commissions Act.

I note that this bill was drafted in consultation with the commissioner and reflects the most recent lessons to be drawn from the Oakden inquiry. I commend the bill and I commend the work of the Attorney-General. I commend the work of the former member for Heysen, who was a champion of this type of legislation, and I commend the Marshall Liberal government for putting this legislation forward.

Ms BEDFORD (Florey) (17:04): I have a few comments before the Attorney closes off the debate. I want to give notice that I will be tabling some amendments to the legislation. I have some concerns around the presumption of innocence and those sorts of things and how witnesses might be protected if they are called before open hearings, so I look forward to the debate in the committee stage. I thank the house for its indulgence.

Mr MULLIGHAN: Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed:

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 7 passed.

Clause 8.

Ms BEDFORD: I move:

Amendment No 1 [Bedford-1]—

Page 4, lines 26 and 27 [clause 8, inserted section 36B(b)]—Delete paragraph (b) and substitute:

(b) a question arises as to whether—

(i) the Commissioner has jurisdiction to conduct the investigation; or

(ii) a determination by the Commissioner to conduct a public inquiry was properly made (in accordance with clause 2 of Schedule 3A),

This is to make clear that a person can apply to the Supreme Court for a review of the commissioner's decision to hold a public inquiry.

The Hon. V.A. CHAPMAN: I thank the member for the scheduled amendments provided prior to the debate. Of course, the bill was only introduced in the parliament yesterday and we have tried to work through them as quickly as possible. My understanding is that there is already a capacity to review. As an administrative determination there is already provision for review. This is a matter which had also been raised by the Hon. Kyam Maher, I understand.

Ms Bedford interjecting:

The Hon. V.A. CHAPMAN: I just make the point that it has been highlighted. Obviously there seems to be some appetite for some clarity around this. I just want to assure the house that orders that are made by the commissioner are administrative orders and therefore are reviewable. However, between the houses we will look to see if there is any aspect of this. At first blush, reference to the words 'was properly made' probably attracts more concern in the sense that it may even narrow the terms of what is reviewable under the administrative law appeal process as it is.

I fairly clearly understand what the member is trying to achieve, and we will try to make sure that there is reassurance and identification of where the orders are for review. At this instance, I indicate that we will oppose the amendment, but we are very happy to look at the detail between the houses.

Ms BEDFORD: My understanding of the ICAC is that it is an investigatory body, but we are giving it court-like powers. I think that anything we can do to clarify that is useful. If it is the three words you have, as you say, maybe we could find three less offensive words for you between the houses.

The Hon. V.A. CHAPMAN: If I can perhaps respond to the question of whether we are giving ICAC court-like powers in this bill. In essence the ICAC, together with the Office for Public Integrity, has four or five significant areas of responsibility. One of those is in relation to corruption matters which are either referred to it or which it identifies of its own notion. It can conduct an investigation. It does not make any finding but, if it collates sufficient evidence to suggest that corruption has occurred, it then refers it to the relevant authority without making a decision as to whether or not there is corruption. That may be the police, for further investigation, or it may be to the DPP, the commonwealth, or wherever. That is one role.

That role is largely an investigative role. They have special powers to tap phones and require documents to be produced to try to identify that because it is a very special type of criminal offence. The whole purpose of having these commissions is to ensure that we have an agency that has the capacity and specialised personnel to do just that. It does not sit as a court in relation to that role.

In its second area, which is another primary area of responsibility, it investigates and adjudicates in respect of allegations of systemic or serious maladministration or misconduct. In this regard, it already has under the principal act not only the responsibility to do that but the rules that apply when it does so. One of the aspects of the bill is using the powers of the Ombudsman Act. He has frequently done that, and we have seen the result in very public documents, such as the Gillman inquiry into the sale of government land and the Oakden inquiry in respect of the allegations that were referred to it in regard to the mistreatment of our frail-aged in a mental health facility.

In those instances, the commissioner can receive evidence, collate material that it has itself investigated, call witnesses, question witnesses and generally investigate the matter and make a decision about whether there have been failings in the maladministration or misconduct arena, and by whom. Already under that aspect of its responsibility, it very much acts like a court, except that what we are trying to do today is to give it the transparency that other courts have, and that is the opportunity to be heard in public.

I want to be clear that we are not expanding its role as a court-like process, but we are certainly making it transparent by shining a light on it in allowing the whole or part of it to be public. In that sense, the public will be able to see when that discretion is exercised, how the proceedings are being conducted and, in the court of public opinion, make an assessment about whether they feel that has been properly carried out. In addition, in the existing structure they have powers and obligations. There are appeal rights in relation to the administrative decisions they make.

I foreshadow amendments Nos 5 and 6, which, I am advised, are in practice already operated as elements that are designed by the member to put in clear language the entitlement to have a legal practitioner, etc., which you would expect to have in an open court hearing. There are a number of other areas that I am not going into for the purposes of that. In that secondary area of responsibility, already they are carrying that out, and obviously the overall objective of this act in its first instance is to give them a chance to allow sunshine to be the best disinfectant.

Ms BEDFORD: This is my final question. The Attorney has already said it is a court-like power but it is not a court. We have to be very clear: people can be caught up in this process and, as you say, you are not even charged at that point; you are only being recommended to be charged, but the damage is probably already done by the time we get to that. I think any protection we can give to anybody at that level is really important. I am hoping that some of my learned friends on this side will have some questions for you, too.

Amendment negatived; clause passed.

Clauses 9 to 14 passed.

Clause 15.

Ms BEDFORD: I move:

Amendment No 2 [Bedford-1]—

Page 9, after line 33 [clause 15, inserted Schedule 3A, clause 2]—After subclause (2) insert:

(2a) The Commissioner must prepare a report setting out the grounds on which the Commissioner is satisfied that it is in the public interest to conduct a public inquiry and the report must be published, before the public inquiry is commenced, on a website determined by the Commissioner.

In moving this amendment, I again try to make clear that this is about ensuring that the reasons for holding a public inquiry are known, and then a person can use this information to seek a review by the Supreme Court under the previous amendment, which of course was lost. It is looking to make sure that people who are caught up in this process have some rights.

The Hon. V.A. CHAPMAN: As we understand it, this essentially requires the commissioner to disclose the basis upon which he makes a decision to have a public hearing, for example. There are some aspects in relation to the use of the word 'report' and 'grounds' that we would have some concerns about. Sometimes, I have seen in legislation an obligation on the party making a decision to publish reasons, and sometimes it is even less restrictive—publish reasons in the event that they are requested. There are various ways that this can be done to identify the basis upon which they have made the decision, as I say, in this case, to declare part of it in the public interest.

In terms of something like the Oakden matter, Mr Lander publicly said that it reminded him of the even more important reasons why these matters should be public in identifying this as a significant government service, particularly where it provided services to the frail, aged and vulnerable, and it was a service that was offered by persons who were employed by government and who were under the direction of senior personnel and ultimately responsible to ministers.

He quite clearly felt, and has made public statements to this effect, that that is exactly the type of situation where he would like to have heard all or part of that matter in a public forum. He was not able to because this law had not been passed at that stage, of course. However, even in that matter, on several occasions he published information about his conduct of that inquiry, and determinations he had made, by way of press release.

I am not suggesting that that is an adequate substitute for publication of reasons but, again, these matters are reviewable. The question is whether we confine it in the terms that have been identified. What I think the member clearly wants to do is say, 'Well, if you're going to have a public hearing and you say it's in the public interest, that is not enough. I need to know what in particular is in the public interest.'

At first blush, the way that we would look at how this would be best dealt with, without creating another layer of review and complicating the review process under administrative law, may be to have a provision that requires the commissioner, when he makes the decision, to make a statement about the way matters that he is already legally bound to take into account are to be considered and how they are to be considered. We will work on it between the houses, and I thank the member for bringing it to our attention. I think I have the general thrust of what is being sought here: transparency.

We are not dealing with an ordinary court situation, where it is all open unless it is closed, which is the more common approach. Obviously, we already know in the general court arena that from time to time a judge will say, 'I am going to hear the evidence of a child, I am going to hear very delicate evidence, I am going to hear criminal intelligence. Therefore, I am going to close the court and/or only allow limited media access,' and the like. For different reasons, that happens. However, we are doing a reverse here: it is closed unless he exercises discretion otherwise, and I hear a request that he in some way publicly accounts for the reasons he has done that.

The CHAIR: Member for Florey, does this question still relate to your second amendment?

Ms BEDFORD: Yes, surely that is all I am allowed to talk on, sir. I would not dare defy the table.

The CHAIR: Yes, that is right, we are just being clear on that. Member for Florey.

Ms BEDFORD: I have only asked two questions. I am familiar with the question session. As the Attorney says, the point is that the commissioner can make his findings public at the end. I do have some problems with that because even at that point the presumption of innocence is still there, you would think, because it is only a recommendation to charge.

If again we have two offending words, we might be able to find better words between the houses, but I think it is vitally important that we recognise both the right of the commissioner to say he wants it to be public and the right of whomever he is taking before him in a public setting to have some rights and be able to exercise them. My question is: will you definitely be looking at it between the houses, officially?

The Hon. V.A. CHAPMAN: I assure the member that we will be looking at it between the houses. In respect of something that has been said, I think it is important that, in determining cases they are investigating and maybe sent off to charge, not making a decision—that is, corruption cases—the law that we are addressing in this bill does not relate to investigations in relation to corruption.

We are not even asking, in relation to any investigation in respect of corruption, to have any or all of that investigation open. In fact, in that regard the commissioner has been very clear since the inception of the act. He is not conducting an inquiry for the purposes of making findings and determinations. He is purely carrying out investigation, a bit like a high-powered police officer and detective team who then hand all that over the somebody else.

All that remains out of the public eye, just as it does in a current police inquiry when they undertake their investigations. It may take a very long period of time, and then they may make a decision about whether a crime or multiple crimes have been committed. Obviously, they may then identify if charges are to be laid. They may refer it to the DPP to review for charges to be laid. That is an entirely investigative role. We are only talking here about serious or systemic maladministration or misconduct, remembering that there is a third area that relates to what the police ombudsman used to do when we had one. So he has an extra role there, but we are not talking about corruption inquiries.

Ms BEDFORD: No. It is the beginning of that process should anything go further, surely. If he finds corruption, then you move on to the next level, do you not?

The Hon. V.A. CHAPMAN: Can I just clarify this. If he is going along doing his investigation in relation to a corruption matter and there is not enough evidence, he closes the file, presumably, or keeps it there or keeps an eye on it or whatever. That is his business, and it is just as the police do. It may be, though, that in undertaking a corruption investigation he stumbles across the basis for an inquiry into serious or systemic maladministration or misconduct and then starts that inquiry. In relation to that, he would be under these reforms, obviously, undertaking an inquiry for the purpose of making a finding, and potentially a determination, on whether there was any breach in respect of those two areas.

Ms BEDFORD: But it is already in the public, is it not?

The Hon. V.A. CHAPMAN: No. While it is still an investigation in relation to corruption—this is the one that transfers over—that is all secret. If he finds other information that suggests there is some shocking behaviour happening in some department but it is not corruption—it is just a maladministration matter—he may make a decision at that point to send it to the Auditor-General, the Ombudsman or other integrity bodies, or he might think it serious and systemic and therefore he will do the investigation. He starts that inquiry, and it is that inquiry that is the subject of this reform. With the passage of this bill, he would have the right to have all or part of the hearings in public.

Amendment negatived.

Ms BEDFORD: I move:

Amendment No 3 [Bedford-1]—

Page 10, line 37 [clause 15, inserted Schedule 3A, clause 4]—Delete 'In' and substitute 'Subject to this clause, in'

This is a pretty easy one. The word 'in' cannot be offensive, can it?

The Hon. V.A. CHAPMAN: I indicate that we are not supporting that for the same reason.

Amendment negatived.

Ms BEDFORD: I move:

Amendment No 4 [Bedford—1]—

Page 10, after line 40 [clause 15, inserted Schedule 3A, clause 4]—After the present contents of clause 4 (now to be designated as subclause (1)) insert:

(2) A public examination of a witness must be conducted in accordance with—

(a) the rules of evidence; and

(b) so far as is reasonably practicable, the rules of the Supreme Court applying to examination of witnesses in criminal matters.

This makes sure that witnesses, if they are called for a public examination, have some protection so that the rules of evidence are there as in the Supreme Court.

The Hon. V.A. CHAPMAN: We will look at this aspect of it, whether there needs to be any other amendment with it if it is going to be acceptable. However, generally I think the best way of ensuring that inquiries are conducted in a manner that is fair to all concerned is to open them up. That is the best way of ensuring that we do not have an inappropriate inquiry—a Star Chamber, if you will—behind closed doors.

We want these inquiries in relation to serious allegations, clearly, to be open and able to be seen, and the best way is to shine the torch on those, including the opportunity for people who are called in these investigations, either as a witness or a suspect in that sense of misconduct or maladministration, having the right to be able to present their evidence—and that is usually what the rules of evidence attempt to do. They ensure that as best as possible the evidence that is available goes in uncorrupted and is not denied, other than through a proper and well-worn development of a set of rules that operates under the Evidence Act. We will certainly have a look at it and come back to the member on that.

Ms BEDFORD: We are talking about something that is akin to a court but not a court. Whether it is or is not, I suppose, is in the eye of the beholder. Some witnesses could perhaps benefit from having reasonable notice of the questions that they might be asked. You cannot just be led in and asked questions. Is there no case that you can ever recall where someone has been taken to something like this and actually been innocent, but it has gone to the very end and their name just cannot be retrieved? Publicly, they have been besmirched and there is no way out of it.

The Hon. V.A. CHAPMAN: I think there are probably a number of different issues in that question and the concerns that the member raises. If I can just identify one area that I would see as a problem with this clause. Let's assume that there is an obligation in relation to the public hearing examination of a witness that requires this standard you have proposed. If that is only to apply to a public hearing, then how do we address the circumstance where the hearing is undertaken partly in public and partly in private? Even the same witness could give part of their evidence in private and some in public.

If that is the concern you have in that instance, how do we know if the witness is being fairly treated in the secret part? I am just saying that I think I understand what you are trying to achieve here, and that is that you want there to be a fair structure set around people who appear in these inquiries. Sometimes they might go to it thinking they are a witness and they become a suspect, so I understand the significance and concern that people have, especially because of the secrecy of these inquiries. Therefore, things like those you foreshadow later on in relation to having legal representation, etc. are things we understand the significance and importance of, but I highlight that because there is the capacity for there to be a hearing partly in secret and partly in public, that is the sort of anomaly we will have to have a look at.

If we are satisfied that we need to write in there that the rules of evidence should apply, then we may need to consider how we do that across the whole of the inquiry, even if part of it is not in the public arena. Again, leave that with us. We undertake to have a look at it.

Ms BEDFORD: You just said that partly this is to protect the witness in the secret bit. I am not sure how that actually works. This is about protecting people if the inquiry is closed. We are not actually having open inquiries so that the public can see them. We are having an open inquiry to look after the interests of the person who is being investigated.

The Hon. V.A. CHAPMAN: Let's be clear. The reason we are proposing a public inquiry is for both.

Ms BEDFORD: For both, okay.

The Hon. V.A. CHAPMAN: People who appear in these types of inquiries ought to have fair access to be treated appropriately. We understand that, and that is one of the reasons to have that, but the other is to make sure that the public can see how these things are progressing and that they can see that either the witness or person under investigation is getting a fair hearing and that the commission itself is conducting itself in an appropriate manner. Frankly, the danger of having anything in secret is that all sorts of things can happen behind closed doors. That is why it is a fundamental principle in relation to our court processes that, apart from exceptional circumstances, they are kept private.

The Family Court is slightly different. You have to be over 18 and be a party and various other things; it is not just open to anybody who wants to go in. So there are certain areas where there is an exception; however, largely, just like our parliament, it is open. The public can see what we are saying and doing. They do not all come in; they can see us online now, which is another initiative.

This is the whole idea. The press can come or they can go and find our live stream, wherever that gets hidden, and they can access that information. That transparency is very important to our side of the house even in these types of inquiries, and even though they do have another secret role, which is basically an investigative role into corruption, that is not what we are talking about today. For both those reasons we will do it. Yes, we will have a look at the matter between the houses as to how that might work if it is included. In anticipation of clauses 5 and 6, my answer will be the same—that we will look at those matters between the houses.

Amendment negatived.

Ms BEDFORD: I think we can do amendments 5 and 6 together, if that is okay with everybody. As the Attorney said, she will give them the same treatment as all the rest of them. I move:

Amendment No 5 [Bedford-1]—

Page 11, lines 4 to 6 [clause 15, inserted Schedule 3A, clause 5(a)] —Delete '(not being an examination conducted in public in accordance with clause 2)'

Amendment No 6 [Bedford-1]—

Page 11, lines 7 to 13 [clause 15, inserted Schedule 3A, clause 5(b)] —Delete paragraph (b) and substitute:

(b) any other person may be represented by a legal practitioner if the person heading the investigation is satisfied that special circumstances exist.

Amendments negatived; clause passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:37): I move:

That this bill be now read a third time.

I would just like to record the government's appreciation of the indication of support from members in the house, particularly from the Leader of the Opposition. He had indicated post election that in respect of this very important election commitment he would review it and look at how and under what circumstances the Australian Labor Party would support this legislation, because it has been up before and not been supported.

I appreciate that that would obviously have taken some consideration and we thank him for showing some leadership in this regard and ensuring that we have support through this house. I accept that the Hon. Kyam Maher, being the opposition's representative in the other place, may have some questions in relation to the practical implementation of this but I place on record our appreciation for the support at this time.

Bill read a third time and passed.