Crime and Public Integrity Policy Committee: Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill

Mr CREGAN (Kavel) (11:04): I move:

That the fourth report of the committee, entitled Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill, be noted.

On 10 May 2018, the Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill was introduced in the house. On 30 May, it passed without amendment. On 26 July 2018, it was resolved in the other place to withdraw the bill and to refer it to the Crime and Public Integrity Policy Committee for report and recommendations. It was further resolved that it be an instruction to the committee to report by no later than 4 September. This house concurred with that instruction. It was later moved in the other place to require the committee's report by no later than 20 September. This house concurred.

The bill would allow the Independent Commissioner Against Corruption to conduct public investigations into serious or systemic misconduct or maladministration in public administration. Such inquiries would be conducted under powers set out in a proposed schedule 3A to the Independent Commissioner Against Corruption Act, which I will refer to as the ICAC Act.

On Saturday 11 August, the committee advertised the inquiry in The Advertiser, The Australian and the Australian Financial Review. Correspondence was sent to 17 individuals and organisations inviting submissions. The committee received five submissions to the inquiry. Those submissions and evidence taken by the committee raised 19 issues. Each of those matters is addressed separately in the report. Importantly, not all the issues raised in the submissions and evidence are addressed directly by the bill or indeed by the report, and it follows that not all the issues raised are subject to findings and recommendations.

As a result of the submissions and evidence received, the committee made eight recommendations. In forming recommendations, the committee faced the difficult task of seeking to balance the rights of people involved in such investigations against the capacity of the commissioner to conduct investigations effectively.

Recommendation 1 recommended that the bill be amended to state expressly that an inquiry into potential issues of serious or systemic misconduct or maladministration in public administration is to be conducted in private, until it is determined that it is to be conducted in public. It was recognised that, although the bill as drafted was likely to have that effect, it was preferred out of a desire for completeness to set out an express statement of that intention.

Recommendation 2 proposed amendments to the bill to require the commissioner, where it is intended to conduct a public hearing, to give written notification of that intention to persons that may reasonably be required to give evidence to the inquiry or any person whose rights or interests may be affected by the evidence given. It was recommended that the notice must set out the reasons for the decision to conduct the inquiry in public and that it must be given no later than 21 days prior to the commencement of that inquiry. The committee also recommended that, where the power of the commissioner to conduct a public inquiry is in question, specified persons may apply to the Supreme Court to determine that question.

The committee's third recommendation proposed that the provisions of the bill providing for the making of orders to suppress the publication of any evidence be amended to provide that applications for such orders can be made and, where any decision in relation to such orders is in question, applications may also be made to the Supreme Court to determine that question.

Recommendation 4 recommended amending the bill to provide for persons to be entitled to legal representation during examinations, whether they be conducted in public or in private. The committee also recommended that a discretion be provided so that persons who are not giving evidence at an examination but whose rights or interests may be affected by evidence given be entitled to appear before the examination and to be legally represented.

The committee's fifth recommendation proposed amendments to provide that any persons required to give evidence to an examination or to produce, during the course of the investigation, any statement, document or other thing, be afforded the privilege against self-incrimination. It was accepted that the privilege is a fundamental common law right, and the committee particularly considered that it was not appropriate to abrogate the privilege and respective inquiries into potential issues of misconduct or maladministration.

Recommendation 6 recommended that clause 4 of proposed schedule 3A be amended to state clearly that the clause is not intended to displace any right to procedural fairness or natural justice. The clause proposed that a person heading an investigation into matters addressed by the bill is not to be bound by the rules or practice of any court or tribunal as to procedure or evidence. Out of an abundance of caution, the committee considered that an amendment of this nature would put beyond doubt the applicability of these common law rights.

The seventh recommendation suggested amendments to aspects of clause 6 to proposed schedule 3A. The clause proposes to set out the applicability of legal professional privilege in relation to investigations, and the committee did not take issue with the apparent intended clause. It was, however, considered to be insufficiently clear and may benefit from rewording. The final recommendation of the committee provided the committee's support for the proposed amendments to the bill, as filed by the honourable Treasurer, subject to consideration of the recommendations of the committee and the amendments filed by the Hon. Mr Parnell.

The committee wishes to thank the executive research officer, Mr Ben Cranwell, who provided great assistance to the committee in bringing the inquiry to a conclusion in the time available to the committee. I commend the report.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (11:12): I commend the member for Kavel and the committee for the work they have undertaken in respect of the Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018, which, as indicated, was referred to the committee for their consideration. The committee was given a very short period of time to consider it, for a very clear reason given at the time by members of the Legislative Council, namely, that the preparedness to undertake a further review of this matter by the committee was something in which time was of the essence.

Clearly, from the government's perspective, this has been an issue in relation to public hearings for ICAC inquiries in relation to maladministration and misconduct matters, not only as an election promise but as something which we have pursued for a number of years. It is not a new issue; the legislation had been on the table to enable some consideration. Nevertheless, the government were quite happy to send this for the short period—a couple of extra days were extended to enable the completion of the report and tabling. It is here now and we welcome it.

I thank those who made submissions to the committee, including Mr Wayne Lines, the Ombudsman; Mr David Edwardson QC, from the South Australian bar; Mr Morry Bailes and Mr Sam Joyce, from Tindall Gask Bentley Lawyers; and Mr Tim Mellor of the Law Society of South Australia. Evidence was followed up at the committee in August by Mr Mellor, Mr Edwardson and Mr Lines. Additionally, Mr Michael Abbott QC; the Hon. Kevin Duggan AM QC, the ICAC reviewer; and the Hon. Bruce Lander QC, the Independent Commissioner Against Corruption, all made themselves available to give evidence.

It is a bit like Groundhog Day when I read this report because some years ago, when the act came into being after nearly a decade of the opposition fighting for an ICAC to be established, there were a number of areas raised by the opposition at the time to ensure that there was due process, there was a fair process and there were adequate protections for those, particularly, who might be called before the commission. That all fell on deaf ears of the then government and we got what we called a 'skinny ICAC' at the time, that is, an ICAC with very limited funds to undertake its inquiries and duties, including investigations, inquiries, reviews and an educative role, which, being a new entity in South Australia, was clearly going to be a significant task.

A number of the matters that have been raised, again by senior members of the profession, have in many ways been welcomed. It is fair to say, and I think Mr Lander made this very point in his evidence, that in each and every one of the proposed eight recommendations, where he has given consideration to matters that are raised under these ills that are sought to be remedied, he is afforded that opportunity. For example, when someone has sought to be legally represented, there has been no denial of that and no attempt to interfere with that opportunity.

When there has been a request to present an argument on review or appeal—either an administrative review or appeal—an example is the Oakden inquiry, which would be well familiar to many of those sitting on the other side of this chamber because many of them established their veteran status in relation to the conduct of the former government by virtue of that inquiry. Members will recall that, prior to the conclusion and publication of that report in early 2017, the commissioner made a public statement that he had received a request for certain information not to be disclosed and not published in his report by three persons attending in his inquiry. He considered that.

He had indicated to the applicants in that regard that they might want the opportunity to go to the Supreme Court and have his decision to decline that tested, and that he was holding over the finalisation of his report to facilitate that opportunity. As it turned out, Mr Abbott QC, who was representing one of the parties, apparently had instruction not to proceed to the Supreme Court, so it all evaporated. But the point is made that these processes are important and it appears, as confirmed by the evidence of Mr Lander, and, indeed, supported in some instances by the publicly known behaviour in relation to the operation of these inquiries, that that is exactly the practice he has applied for the purposes of conducting those investigations.

We are pleased to hear that. As a parliament, it is important to know, particularly where there are investigations undertaken in a confidential environment—that is, within the envelope of secrecy—that we recognise the significance of these entitlements of protection. The committee has acknowledged in its report that a number of these recommendations have been demonstrated in practice and are already covered by other aspects, including common law entitlements and protections, but they wish them to be explicitly reflected in the bill. The government of course will give that consideration and come back to the parliament in due course.

There is one area, though, in relation to a submission—I think originally put by members of the bar and/or the legal profession—that was to account for and record provision for the procedural fairness and natural justice common law right to be placed in the bill. I would say the only practical implication there would be with this is that that would be the first time that has actually been the case in a bill. Sometimes the argument has been that to try to codify a common law right and present it into legislation may, in fact, diminish its benefit.

It does not apply in a lot of our laws. If we introduce it in this one—and that may well have merit—I just advise the parliament that, as a matter of process, we may need to look at a whole lot of other laws, that there may justifiably be applications put to the government to extend that to a very extensive number of other laws where a common law entitlement applies. That may be a matter we will need to consider in due course, and it may be very comprehensive. Nevertheless, we take the advice that is given.

Finally, my understanding, in reading the motion that passed in the Legislative Council to facilitate this inquiry, and ultimately this report, was that the bill would be withdrawn and referred for consideration to the Crime and Public Integrity Committee. The interpretation of that has been that the bill is no longer before the parliament at all. As some members would know, there is a common practice in the commonwealth parliament, and I will just use the example of the commonwealth electoral laws that, after being introduced, were recently referred off. A report was given in April, and I think a recent report was given this month to the parliament. Then it goes back to the parliament for consideration.

I am advised by the Clerk of the Legislative Council, as well as someone else very important over there, that the process is confirmed that the bill is no longer before the parliament at all, so it does not automatically come back to the parliament. We will have to reintroduce the bill to the parliament, and quite probably we will consider that going into the Legislative Council it will be introduced by a member of the government there, with any recommendations that the government endorses for amendment. We would hope to be doing that in the relatively near future.

That process will mean it can be debated in the Legislative Council first and, if there are any matters to consider, then it will come down to us in due course. However, I thank the committee for its work.

Motion carried.