Independent Commissioner Against Corruption (Investigation Powers) No 2 Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 April 2019.)

The Hon. A. KOUTSANTONIS (West Torrens) (15:55): I indicate to the house that I am the opposition's lead speaker on this—

The Hon. V.A. Chapman: You are the expert on ICAC.

The Hon. A. KOUTSANTONIS: I note the interjection from the Deputy Premier. Because of that interjection, I can inform the house that a number of her colleagues have stopped me in the corridors, asking me to speak on this bill and make the contribution I am about to make because the Attorney-General will not listen. It is fascinating to see the level of discontent within the government on this legislation.

It is important that we have a bit of history on this legislation. From the outset, I can say that the opposition supports open hearings for maladministration and misconduct. Feel free to interject anytime you like, Deputy Premier. I understand that the government is now attempting to amend the bill that has come from the Legislative Council. The origin of this bill is at the last election campaign, when the government went to the election promising the people of South Australia open ICAC hearings for maladministration and misconduct.

When that bill was initially moved by the government after their successful election campaign, which resulted in their forming government, that bill was then referred to the Crime and Public Integrity Policy Committee to conduct an inquiry. The Crime and Public Integrity Policy Committee, of which I am a member, performed its duty and interviewed and took evidence from a number of concerned individuals, organisations and stakeholders. We cross-examined them, we asked a lot of detailed and probing questions and we came back with a series of recommendations.

Some of those recommendations were endorsed by the ICAC commissioner. I will be going through a lot of detail on the support the ICAC commissioner has shown for some of the amendments moved in the Legislative Council, especially those that the government are attempting to amend—that is, where the government is in conflict with its own ICAC commissioner. I find this extraordinary, unless the committee was misled, which I doubt very much.

The Crime and Public Integrity Policy Committee handed down eight recommendations for the bill that was before the Legislative Council. Of the amendments that we moved on behalf of the committee in the upper house, a number were dealt with in the government's bill; that is, the government did listen to and accept the recommendations of the Crime and Public Integrity Policy Committee. As I said, I do not think there is anyone in the house who does not support open hearings. The commissioner himself does not support open hearings for corruption. He believes they should be done in private or in secret, and he will make his recommendations as he sees fit.

Mr Teague interjecting:

The Hon. A. KOUTSANTONIS: Not necessarily.

Mr Teague interjecting:

The Hon. A. KOUTSANTONIS: Again, the member interjects that the ICAC commissioner will refer corruption findings to the DPP. We do not know if that is what occurs.

We do not know if there are regular referrals, or if the commissioner has conducted a corruption inquiry where he has found what he believes is corruption and has not referred it to the DPP. We do not know. I do know that the ICAC commissioner is a regular reader of Hansard. He will be giving evidence on Monday to the Crime and Public Integrity Policy Committee, so if he has made corruption findings and not referred them to the DPP I am sure he will let us know.

The question before us as a parliament is: if we have open hearings at the ICAC, what protections should we afford people who are before that inquiry? This is a very difficult question for the parliament because what we have before us is a system of inquisitorial investigation, that is, where the ICAC commissioner is given coercive powers by this parliament. Those coercive powers are used by the ICAC commissioner, who is someone who has a minimum standard of qualification. No-one questions Mr Lander's qualifications. He was a Supreme Court judge, a Federal Court judge, a long-time lawyer, a long-time Queen's Counsel, someone who did a lot of work for the Liberal Party in his formative years and someone who understands the rule of law and understands public governance and politics quite well.

What we are being asked is: as a public inquiry, should we allow the ICAC commissioner to have the same powers in public as he has in private? That then begs the question: what is the purpose of a maladministration or misconduct inquiry? Is the purpose to ascertain information, as in a police inquiry, where there are interview rooms and witnesses are brought into an interview room, questions are put to them, they are recorded, they are videotaped and police use them as evidence?

What the ICAC commissioner is putting to us is that he wants to construct a courtroom-like facility, like a royal commission, where he would sit in an elevated position, as the Deputy Speaker is now, where someone would be brought before that elevated position, much like a courtroom, where they would take an oath or affirmation about telling the truth, about the evidence they are about to give, and somehow the general public are meant to distinguish between a tribunal and a court.

Of course, the inquiry makes findings of either maladministration or misconduct or exonerates someone. The commissioner does not want to do this for corruption; he wants to do that in private. But in public he thinks there is some public benefit in giving the public the ability to see that process play out.

If you are cautioned by police, or you are cautioned by an investigative body outside ICAC, there are certain fundamental rights that every citizen has before that inquiry. The first and foremost is the right to silence. In a proposed open ICAC inquiry, with the government's amendments there will be no such right to silence in a public inquiry. That is, citizens who are before that open tribunal, being broadcast live throughout South Australia and on the internet, could be asked questions they would be compelled to answer or face penalty.

The reason the ICAC was designed to be conducted in secret—much like police investigations—is that questions are put to people and if the answers tend to incriminate them they have the right to silence. Because we wanted to remove that right to silence for people being investigated for corruption, maladministration and misconduct, so there was no unfair coverage that could unfairly or unduly harm that person's reputation the parliament felt that should be done behind closed doors. The ICAC commissioner would adjudicate that investigation and make a finding afterwards.

Throughout the entire process, anyone being interviewed by the ICAC or a police officer is entitled to a lawyer. Indeed, in the Summary Offences Act if you are arrested there is a statutory requirement that, if you ask for a lawyer, you must be given access to one. Before that process, I assume that it was a common law right to have legal representation. If you are cautioned or interviewed by police, you are entitled to have a witness with you. Indeed, this is a pretty fundamental right. It is so fundamental that even the ICAC commissioner agrees with me.

On two occasions, he has given evidence to the Crime and Public Integrity Policy Committee. The first time was on 27 August 2018, when he gave a very long piece of evidence to the committee when he was responding to evidence given to the committee by Michael Abbott QC. He went into great depth about the ICAC and its role, and I will now quote from the evidence of the ICAC commissioner, the Hon. Bruce Lander QC. On page 338 of the transcript, dated Monday 27 August 2018, he said:

Public scrutiny is just one aspect of transparency and accountability. Where a person or body enjoys significant powers, as I do—

talking about himself—

it ought to be subject to oversight at a number of levels, so that the public, the parliament and the executive arm of government can all be satisfied that the person or body has exercised those powers appropriately.

One method to make sure of that aspect that the ICAC commissioner is talking about is legal representation, which is why I understand the Law Society and the Bar Association made very strong representations to the government and to the Crime and Public Integrity Policy Committee about the importance of allowing legal representation when you are before the ICAC. The commissioner went on to say, on page 351 of his evidence on the same day:

Mr Abbott also at this stage reiterated his complaint about me not providing a preliminary report prior to me preparing a final report. It was at this stage of his evidence that he said the ICAC hearing was a Star Chamber. He went on to say that witnesses should have the right to a lawyer at all stages.

The ICAC commissioner then said:

I agree entirely with Mr Abbott in that respect and I agree that the bill ought to be amended to make it clear that a person is entitled to legal representation at all times, and I would encourage the parliament to make that amendment.

It might shock you, Mr Deputy Speaker, but before us are amendments removing that right. On the same occasion, and the Attorney-General might not be aware of this, the honourable member for Kavel, Mr Cregan, a member of the committee, asked a question of the Hon. Bruce Lander QC:

If I may take you to paragraph 22, above that paragraph in the Law Society's submission [which I refer the parliament to], there is a note about legal representation. Do I take it from your evidence—forgive me if I have misread it or haven't listened to it carefully but I have a very heavy cold today; we are some metres apart and I hope I don't exchange it with anybody—that a discussion follows as to whether somebody appearing before the commissioner in an open hearing might have the benefit of legal representation without the exercise of any discretion. Do I take it that you wouldn't be concerned if parliament—

Mr Lander then interrupted Mr Cregan and said:

Everyone should be entitled to legal representation. What I suggest is that you look at clause 5 and take out the words in brackets, in parentheses, so that 5(a) reads 'a person giving evidence may be represented by a legal practitioner' so that anyone could be entitled.

The commissioner goes on to say:

I am very strongly of the view that anyone should be entitled to a lawyer.

Yet here we are with amendments from the government to remove the right to a lawyer. The question then is why? Why would the government want to remove that right for public officers before an open hearing of the ICAC? Why would the government not want people who give evidence before that tribunal to have the right to legal representation?

I have been told by members of the parliament that it is because the Attorney-General has told her caucus colleagues that the ICAC commissioner himself has asked for it. Here we are debating this, and we have evidence given to the parliament by the ICAC commissioner saying, 'No, everyone is entitled to legal representation.' An entitlement means that it cannot be taken away. A right to a lawyer means that you have a right to legal representation. It does not mean that you have a right if I say so. A right means that you are entitled to legal representation.

I ask the parliament this: does a process where you are not entitled to legal representation represent the rule of law? What kind of process are we establishing when people are being compelled to give evidence that may incriminate them but they do not have the right to have a lawyer or a witness present? Why would we be establishing that kind of system, and why would the ICAC commissioner ask for that system?

I have FOIs before the Attorney-General's office to see whether the ICAC commissioner has indeed written to the Attorney-General to ask that these clauses be amended to give him the discretion to allow or not allow legal representation for someone being interviewed by the ICAC commissioner or for someone before a public inquiry. I will ask these questions of the Attorney-General when we are in the committee stage, but I can inform the parliament in advance that the opposition will not be supporting that amendment to take away the right of an individual to have a lawyer. Why would we?

I cannot think of any occasion in the state jurisdiction when an individual being questioned should not have the right to legal representation. I will be fascinated to see anyone from the government get up and make an argument about why we should deny our citizens the right to legal representation when they are being interviewed by the ICAC commissioner. No-one is saying that he should not have his coercive powers to compel you to answer, but why should you not be entitled to a lawyer?

I will be fascinated to hear the Attorney-General's explanation to the good people of South Australia as to why, in her learned experience, it is appropriate to take away someone's right to legal representation and if indeed the ICAC commissioner requested this change, because he has given evidence to the parliament previously that it is not his position, that his position is that you ought to have legal representation. It is his strongly held belief that an individual should be entitled to legal representation, but it is not, apparently, the Liberal Party's belief.

I get very suspicious of ministers who attempt to erode people's fundamental rights. The ICAC is there for very good reason: it has coercive powers to try to root out corruption, maladministration and misconduct. If we are serious about good governance in this state, those powers for the ICAC commissioner should be protected. The question then is this: is the exercise of those powers in any way going to jeopardise someone's reputation unfairly? This is why we have the closed hearings.

Given that the parliament, the government and the opposition now agree to open hearings, the question then is: what rights should you have in an open hearing which is broadcast live? Should you have the right to remain silent, the right to silence, in an open public hearing? Should you have the right to appeal the commissioner's decision to hold an open hearing? What time frame should we allow individuals who want to make an appeal? Do we allow only one appeal? Well, the government has given us their view, and their view is expressed in the amendments of the Deputy Premier and the Attorney-General, which is that only one person is allowed an appeal right on an ICAC investigation and that they have only two days to make that appeal.

If an ICAC hearing is called by the commissioner and he calls person A and person A exercises their right to lodge an appeal within 48 hours and it is rejected, then when the Deputy Speaker is called to give evidence three weeks later all the appeals have been exhausted. You would be compelled to give evidence in public without the right to a lawyer and without the right to silence, nor would the rules of evidence apply. People will say, 'Why would you want the rules of evidence to apply in a tribunal?' Well, does it look like a tribunal? Is it acting like a tribunal, or is it acting like a court, with a former Federal Court judge sitting up there in judgement of those they are interviewing?

It is a difficult job being the ICAC commissioner and, I imagine, a lot tougher being the Attorney-General. There are many experts who fly lots of advice at the Attorney-General and the ICAC commissioner. No doubt the government is inundated by people making requests about expenditure, what they should do next, what they have done and what they disagree with, but surely we can all agree on a few fundamental rights, such as the right to legal representation. I cannot believe that in 2019 I am standing in this place arguing that we should keep the right to legal representation before an investigative body that we have established in this parliament.

There is lots of online literature about the right to a lawyer. I will refer the parliament to some which I found online and which I think they might find interesting. I do not doubt for a moment that the Attorney-General has long legal experience and knows all these references. I am sure that her table staff do as well, as do probably many members of parliament who are already esteemed lawyers. I thought that what I would do is quote a few things from the Australian government Australian Law Reform Commission about the right to legal representation and a fair trial.

The government would argue that an ICAC inquiry is not a trial: I disagree. It says at the commonwealth government site of the Australian Law Reform Commission:

It is important to distinguish between two senses in which a person may be said to have a right to a lawyer. The first…sense essentially means that no one may prevent a person from using a lawyer. The second…sense essentially suggests that governments have an obligation to provide a person with a lawyer, at the government's expense.

No-one is saying that, although I think that it is probably important in some cases. The commission site continues:

Both of these types…are reflected in [article] 14 of the ICCPR, which provides, in part, that a defendant to a criminal charge must be:

tried in his presence, and to defend himself [or herself] in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

That is a very broad definition of what the state should be doing. I do not necessarily accept that the state is required to provide every citizen with a lawyer at the state's expense—I do not. I think that in our country there is a very different obligation on the state. I think that what the state should be offering its citizens is freedom to choose legal representation, to have it.

Of course, if you do not want to have legal representation, you have other rights before any sort of proceeding or interrogation. But in an ICAC inquiry, if the Attorney-General's amendments pass, the ICAC commissioner can deny you those rights publicly. The thing about having a lawyer, for those of us who are not schooled in the intricacies and dark arts of the law, is that lawyers understand the motives and line of questioning that interrogators are going down. They are there to defend your rights.

They know the act probably better than most people standing before an ICAC commissioner. They are there to point out if the ICAC commissioner is exceeding their powers in terms of asking certain questions or whether a question is out of the scope of the inquiry, to reserve their right to take action later on the basis of those questions or to raise any other matter that might be pertinent to their client's defence.

I assume there is a presumption of innocence in any tribunal hearing or inquiry by the state into its citizens. I do not think that we should be allowing any sense of assuming guilt and that it is on the individual being targeted to prove their innocence. The Australian Law Reform Commission goes on to say that:

Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial.

I am not saying that an ICAC proceeding is a trial. It looks like a trial, it sounds like a trial and, at the end of the process, there is a finding and conclusions and they are published, and individuals suffer the consequences of those findings as if it had been a verdict handed down by a court. What the opposition is saying is, yes, we should have open hearings into misconduct and maladministration, but if the government is attempting to do that we should give citizens before that open hearing some rights.

I believe the rules of evidence should apply. Why? In an ICAC inquiry, the ICAC commissioner exercises extraordinary powers to search and seize documents, search computers, look at SMSs, find all sorts of wideranging documentation and then put evidence to someone being interviewed without that person knowing the source of the evidence, the name of their accuser, or the context in which that information was garnered, said, written down or sent. I do not think it is fair to characterise it as 'ambush', but in a fair proceeding, where I think procedural fairness would apply, it is important to know what the accusation against you is and who your accuser is.

The ICAC commissioner claims very strongly in his evidence that there is no accuser. He is just conducting an investigation like a tribunal or a police officer but, generally, of course we know, through the OPI process, that there is an accuser. Someone puts in a complaint to the OPI and the OPI assesses it and forwards it to the ICAC commissioner. The ICAC commissioner then looks at it and makes a decision about whether or not to investigate it, so there has been an accusation made. The OPI often requests more information and documentation, hence the accuser.

By proxy, if the ICAC commissioner accepts what the OPI has put to him or her about the accusation made, that person is then being accused by the ICAC commissioner. Things are put to them: 'Did you do this on this date? Did you speak to that person on that date?' The ICAC commissioner does not do that because he is playing some role outside of his jurisdiction. That is just the impression a reasonable person looking at this process would get from the evidence.

Interestingly, the ICAC commissioner is spending a great deal of money hiring counsel assisting. Counsel assisting are hired by the ICAC commissioner without any tender or due process. This is just something the ICAC commissioner does himself. He decides which lawyer he wants. He goes out and hires that lawyer. That lawyer could write a piece of advice on what the ICAC commissioner is doing.

There is no independence between the ICAC commissioner and the person giving the advice. There is no procurement body between the ICAC commissioner and that legal representation the ICAC commissioner has procured, and there is no limit for the ICAC commissioner, other than his budget, about how often he can engage the same lawyer or how often he can engage the same firm. There is nothing to stop that. All we have is the overseer, the reviewer, and even I think that is out of the scope of the reviewer.

The ICAC commissioner can hire counsel assisting, so I would imagine that a public inquiry would work this way: the ICAC commissioner would decide, for example, hypothetically, to investigate a minister in a government where an independent external report had found irregularities—say, a royal commission into water. Let's say, for example, that the ICAC commissioner decides to have a public hearing into maladministration or misconduct, remembering that the ICAC Act allows the commissioner at any stage to turn a maladministration or misconduct hearing into a corruption hearing. These are the mechanics of it. I am talking about the mechanics of it, rather than about the structure of the act.

The ICAC commissioner decides that he is going to take evidence in public because of media reports (which he has said in the past have triggered ICAC inquiries), a complaint to the OPI or something he himself has discovered, and so he conducts an open hearing. Witness A is giving evidence. Witness A gives evidence that the ICAC commissioner thinks could lead to a corruption investigation. It might have nothing to do with witness A, nothing, but it is being held in public. Without the rules of evidence, without the right to legal representation, the commissioner then suspends the airing of that tribunal because he has stumbled across something that he thinks is corruption.

Witness A, with all the state's media glaring at this, all of a sudden has given an answer that has led to a corruption investigation, or are we to think that the ICAC commissioner will just simply stop airing the tribunal for no particular reason? I imagine there will be some sort of public statement. Where does that leave witness A? Where does that leave anyone else called before that tribunal? Where does that leave any other public officer who is about to give evidence? What does that do to their reputation? What does it do to their standing? What does it do to their commission to the government?

In this hypothetical scenario, witness A has given evidence to a public maladministration/misconduct inquiry that triggers something in the ICAC commissioner that says, 'This leads to corruption. Suspend the public airing of the hearings.' There are a number of ministers scheduled to give evidence before this inquiry and that has been published in advance or they have been called, whatever process the ICAC commissioner will use to call a witness to give evidence, or to subpoena people to attend, and then it is done in secret. Well, there would naturally be a clamour for those ministers to stand aside pending the outcome of the inquiry.

The Attorney-General many times when in opposition called for government members to stand aside pending an inquiry. We called for the Attorney-General to stand aside pending the police investigation into her actions. It is a natural consequence. It will become the norm unless, of course, the people before this public inquiry are given certain rights to protect their reputation.

In the end, we do not want people who have done nothing wrong, who are simply assisting the ICAC, to be devoid of any rights when they go there and inadvertently lumped in with someone else. I think this should raise a lot of concern for members of the government, especially those who prior to becoming backbenchers were very prominent lawyers.

There are a lot more definitions that I want to express my concern over to the house. One thing that occurred to me during the evidence that the ICAC commissioner gave to us during the Crime and Public Integrity Policy Committee's investigations into how an ICAC public hearing should conduct itself was that, if you were an outside observer, a reasonable person looking at the proceedings, you would assume that there would be these rights in place for the person being interrogated, who was the subject of the maladministration inquiry, and anyone else giving evidence. That is what happens generally in an adversarial system: the judge sits in judgement, you have two opposing sides and they share all the information they have; witnesses have rights, lawyers are there, they understand the statutes and they represent their clients without fear or favour.

What does it look like to have a public hearing where you do not have these rights? Would that body look as if the rule of law applied? Would it look as if the body conducting the tribunal were operating under the Westminster and common law traditions we would expect of any form of investigation? For example, very popular on late-night television (and very popular with my wife) are law and order shows, where they show past investigations of what has occurred. They show police interviewing and interrogating witnesses.

I think it is pretty common now in the psyche of South Australians that people are entitled to fundamental rights. Whether it is because of television or people availing themselves of their rights, they expect the state to offer them certain protections when being investigated. Let's say you are accused of theft, or you are accused of mismanagement in a civil case, and police are investigating fraud because money has gone missing, there have been irregularities in transfers of money and the ATO has recommended investigations, etc.

What you see in that sort of inquiry is witnesses being cautioned. They have a lawyer there and it is taped. They have the right to silence and, if any accusations are put to them, they do not have to answer then and there. They can say that they choose not to answer, and then, if it does go to court, there is full discovery between both sides—fair process. If one person is found to be guilty, the independent arbitrator, the judge, applies the sentence set out by the parliament through statute. They apply the law independently as they see fit.

If the same person watching that process watched the ICAC process in public, what would be missing? The right to a lawyer, the right to silence, the right to know who your accuser is, the right to know what the evidence is against you and, at the end of it, a finding that could cost you your employment. There is a very real penalty at the end of a maladministration or misconduct inquiry, let alone the stigma attached to people who give evidence before these inquiries about whether or not they are somehow implicated in the investigation.

I looked up what the 'rule of law' means. Again, I am not a lawyer; I am just a member of parliament. I looked up a number of resources, and one definition is:

Rule of law, mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law…and more generally prevents the arbitrary use of power.

Arbitrary use of power, it goes on to say, is typical of various forms of despotism or authoritarianism. I am not accusing the government of that, but if this body takes away from its citizens—and only some of its citizens, those employed by it and therefore defined under an act of public officers—the rights we all enjoy as citizens, I do not think the public want this parliament to do that. I do not think the parliament wants us to go through a process where an individual could have their reputation ruined unnecessarily and unfairly because we have denied them certain rights every other citizen enjoys in any other investigation.

There are some times when we do legislate to limit people's rights. We compel people to submit to a medical examination on the side of the road if they are driving. We say, 'You must take this medical examination. You must give us your breath or blood for analysis.' We give police officers a general search warrant—the only place I think in Australia where they have that type of power. It is a good power and it is used well by South Australia Police, probably exercised by the member for Elizabeth in his past.

The ICAC commissioner enjoys the secondment of police officers who have general search warrant powers and they are able to search and arrest. The question then becomes: do we allow the parliament to move down this path, where we go from closed inquiries, where the commissioner does their investigation and makes a recommendation? Remember, the commissioner is not a judicial officer anymore; he is a member of the executive. He works for the government. This is a very important point.

Should a member of the executive have this type of power? The parliament has said yes, and I agree with that, but in secret. The parliament has also said that there is the option of having it open and I agree with that: it should be open for maladministration and misconduct. Then we get to the tough part. If we are prepared to move inquiries into the open, where investigations and forensic examinations are done in public without there technically being an accuser, without legal representation, without the right to appeal to a higher court, to have it done in secret because this parliament has said so, I suspect the public would not agree to that.

I think the public do want these inquiries held in the open because they want more transparency in government. That does not mean that they want their rights eroded. You might say, 'This doesn't affect the general public; it only affects public officers,' but the definition of public officers can be broad. Is a contractor contracted by the government a public officer for the purposes of the ICAC Act? Yes, the Attorney-General says. So the person mowing the lawns for the council is a public officer. Are volunteers who volunteer at councils or bodies governed by an act of this parliament public officers for the purpose of the ICAC Act? I do not know. I do not have the expertise to give an answer to the parliament. The scope creep or the mission creep here is what really concerns me.

The opposition will not be voting for the Attorney-General's amendments in terms of the right to a lawyer or the right to have an appeal or, indeed, more rights that we think need to be defended. I have some notes here which I want to read to the parliament which I think are important. I get back to my initial point: I think the Attorney-General is on the right track with open hearings. I think it is fair to say that the debate has been won on open hearings, but I get back to the conflict between what the ICAC commissioner has told us and what the government is telling us, and it makes it very hard for the parliament to make an informed decision on that basis.

When the Crime and Public Integrity Committee handed down its report in 2018, as I said earlier, the committee made eight recommendations. I have to say on that point that the committee was very collegial and very bipartisan. We were ably chaired by Hon. Dennis Hood, who gave great scope to the committee to interrogate and ask questions of witnesses and interrogate ideas and principles. We were ably assisted by the member for Kavel, who has a longstanding history in the law and is highly respected on the committee, and the Hon. Frank Pangallo. The Hon. Frank Pangallo understands the role of media in uncovering sensational news, corruption and wrongdoing, and he too was a very good help to the committee.

The Hon. Justin Hanson and I were very interested in the evidence from a number of people. I think the evidence that helped us the most in formulating our views was that of the ICAC commissioner himself. His evidence was very illuminating. The Ombudsman also gave some very interesting evidence, and I will talk about the Ombudsman in a moment. I thought the Law Society's evidence was excellent. I have to say that I was not always a fan of the Law Society, not because of my 20 years' experience as a Justice of the Peace—

Mr Odenwalder: Unrivalled.

The Hon. A. KOUTSANTONIS: Unrivalled.

The Hon. V.A. Chapman: I have to fix that.

The Hon. A. KOUTSANTONIS: Again, the arbitrary use of power. It is totalitarianism in action.

The Hon. V.A. Chapman: I could promote you.

Mr Odenwalder: North Korea.

The Hon. A. KOUTSANTONIS: North Korea, yes. If only I were just to be obeyed, the sky would be the limit. The Law Society's evidence was very measured. I have always thought of the Law Society as a group of civil libertarians who want to give as many rights as possible to the accused over the victims. As the Law Society was giving their evidence, their common sense overcame me. I thought, 'These people are making sense.'

An honourable member: An epiphany.

The Hon. A. KOUTSANTONIS: It was an epiphany, and I was not even on the road to Damascus. It is interesting that the ones who are laughing are the ones who want to take away legal representation from the accused. Their evidence focused very strongly on the right to a lawyer and, if you have a lawyer, what a lawyer should be able to do. Should a lawyer be a silent witness to what is occurring, or should a lawyer have the right to ask questions, interject, make points to the inquirer, instruct their client and tell their client what they can and cannot do? I thought these points made a lot of sense.

Of course, the question then is: what is the harm in allowing someone who is being interviewed to have these rights? None of the evidence in an ICAC inquiry is necessarily used later on if the DPP or anyone else wants to take any action. If the ICAC commissioner uses his coercive powers, I understand that that makes it very difficult for it to be submitted to a court as evidence. The question then is: if you cannot use that anyway and it is just a tribunal—although it has consequences in terms of your employment and therefore your ability to make money and be employed subsequently, because the government does publish a register of people who have been found guilty of maladministration and misconduct—why should you not be afforded these rights?

The ICAC commissioner says to us that it would make the ICAC public hearings unworkable. I disagree. I think it would make the ICAC work better. I think what the ICAC commissioner is attempting to do—and I will go back to the other evidence I was given—is run public hearings as an educational tool for other public officers and show the public that the work he is doing has merit. I think this is a valuable thing to do, but what is the cost of doing that? The government gave considerable resources to the ICAC commissioner but not to the Ombudsman, and the Ombudsman does the majority of the maladministration and misconduct inquiries; indeed, they are referred to him by the ICAC commissioner.

There is a very large imbalance between the budget and the counsel that the ICAC commissioner has at his disposal, compared with the Ombudsman. The Ombudsman questioned the benefit of the large injection of money to the ICAC commissioner. The ICAC commissioner responded to that. To be fair, I refer you all to Hansard to read that exchange between Wayne Lines—a person of great respect—and Commissioner Lander. I think the parliament holds Mr Lines in high regard, as they do Commissioner Lander. I think both men gave very good evidence.

I think the committee was also helped by the evidence of Michael Abbott QC, someone with a long experience in royal commissions and ICAC and someone who I think understands the workings of ICAC and the potential for ICAC to overstep its authority and the potential for ICAC to inadvertently ruin someone's reputation.

Being politicians, there is not a lot of sympathy for us as it is. But forget politicians. The public servant—who is just aching to do good; all they want to do is serve their state, serve the public, do their job, feed their family, pay off their mortgage, get ahead in life and provide the very best advice they can to the government—can be dragged through very expensive, very emotionally stressful inquiries, and often they come to nothing. Sometimes they come to something, but often they do not.

I know of a public servant of the highest integrity (I will not name them), and I thought an excellent asset to the state, who was put through the literal hell of a maladministration inquiry, not through the fault of the ICAC commissioner or the Ombudsman but just through the process. The process does that to you; it is very onerous and very intimidating. Whenever some says to you, 'If you have done nothing wrong, you have nothing to worry about,' you should be worried—you should be very, very worried. I have grave concerns about the path that the Attorney-General is taking us down. I wonder whether her heart is actually in it. We will find out in her response.

The bill has been delayed a fair bit; it has been delayed for a long time. I hope it was because the government were considering the amendments from the upper house and that there was some real debate behind the scenes about whether or not the Liberal Party actually supported the changes that the Attorney-General is putting forward. It seems to me that they do. I wait with interest for her response.

As I said earlier, the Crime and Public Integrity Policy Committee unanimously made recommendations. On that committee were two Liberal MPs, brave Liberal MPs, who I thought exercised the true spirit of the Liberal Party by exercising their independent will and added to the report, which I think is a very good report. If you are interested in the ICAC and how it operates, spend a winter's night reading the Crime and Public Integrity Policy Committee inquiry into the ICAC and the recommendations we made. Read the evidence of the Hon. Bruce Lander QC, Michael Abbott QC and Wayne Lines—I am not sure whether Wayne Lines is a QC—the Law Society and, of course, the Bar Association. I thought the Bar Association's submission was the most telling.

The Hon. V.A. Chapman: Have you read their one on QCs?

The Hon. A. KOUTSANTONIS: No doubt they liked what you did there—a whole conga line of people lining up. Anyway, the Bar Association raised some serious concerns. The individuals who gave evidence on behalf of the Bar Association are held in the highest esteem by our community and I think have had a celebrated career. Can I say quietly that I do not think he is a big fan of the Labor Party. This individual gave some very good evidence and I refer members to that evidence. I have always thought that he was the conscience of Liberal lawyers.

The Hon. V.A. Chapman: Who are we talking about now?

The Hon. A. KOUTSANTONIS: I won't embarrass him. I think that the idea of the reform the Attorney-General has been asked to make on behalf of cabinet to the parliament really offends that sense of what the Liberal Party stand for.

Whatever you say about the Liberal Party, whatever their faults, they have always stood up for the individual, always: the little guy and the forgotten suburbanites. That is who they have always claimed to stand up for. They are Menzies' 'forgotten people'. These people run small businesses. They are public servants. They are contractors to government. They are people who can be easily defined as a 'public officer' for the purposes of the ICAC Act.

The idea that a rule of law in a public inquiry could be suspended by this parliament to allow people to be subjected to a very stressful and potentially embarrassing and humiliating process, not through any fault of the inquiry but just by the nature of the process, I think goes against the values of the Liberal Party. No doubt we will hear tomorrow from many speakers on their view and value of a right to a lawyer.

As I said, we support the concept of open hearings, but I think we have a responsibility to protect those people who have been adversely affected, or may be adversely affected, or have their reputations adversely impacted by a trial of the nature of a public hearing. I asked the ICAC commissioner when he appeared before us about the structure of public hearings. At page 367 of the transcript of the Legislative Council Crime and Public Integrity Policy Committee hearing held on 27 August, I said:

In considering all of this—and I said this to Mr Duggan—a lot of this is about nothing really because, while we have you as our ICAC commissioner and Mr Duggan as the overseer, I think you are largely right that there is procedural fairness in place and that—

Mr Lander then said, 'Good to hear from you, Mr Koutsantonis.' He was very impressed that I said that. I said, 'Well, I have never stated otherwise.' Mr Lander said, 'No, I am not suggesting you did…I am happy to hear it.' I said, 'And I have been subjected to,' and then Mr Lander interrupted. I was saying that I had been in an ICAC inquiry and he said, 'I know. That's why I am happy to hear you say it.' I then said, 'But what does concern me is when you go. When you go,' and Mr Lander then said, 'You mean leave the office, do you?' I said:

Leave the office, I meant, yes. I hope you get to enjoy your retirement when you do go. Everything you have said to us in your submissions sounds completely reasonable and fair. My concern is when you are gone, when we don't have a former Supreme Court judge and Federal Court judge and QC with the experience that you have and an overseer of the quality of Mr Duggan, who has also been a jurist, overseeing operations, and we get, for example, someone who is not as sympathetic to the rule of law as you are, not as sympathetic to natural justice as you are.

I struggle to see within the act—

that is, the old act that the government first tabled and referred to the Public Integrity Policy Committee—

where the parliament can point to that enforces all the principles that you support over a lifetime of being involved in the law. The parliament has great confidence in you and Mr Duggan. I think the committee has a great deal of respect for Mr Abbott and Mr Lines, and we've got this conflict. So, the question I would put to you is, now that you will be given more powers, you have given us I think advice on the right to legal representation, which I think is significant. I don't know why that wasn't included in the drafting. You have told the committee you were consulted on the drafting...

That is an important point I want to make here. The ICAC commissioner, on the Attorney-General being sworn in, consulted the new government on the drafting of the first bill, which did not codify the right to a lawyer during ICAC proceedings in public. I then asked the commissioner:

Did you make representations to the government that that should be changed then?

Mr Riches then interrupts and replies, 'We have raised that already.' Then I say, 'While it was being drafted, I ask.' Mr Lander says, yes, he did make representations. He then says, 'We've made some representations,' and then I say:

Obviously, the procedural fairness and natural justice should be enshrined in this legislation?

Then Mr Lander gives me a lesson in the law, as he should. He says, 'The procedural fairness should be, yes.' Then I ask the next silly question, 'Not natural justice?' Then he says they are the 'same thing. They are for courts. Don't put natural justice in; you will confuse me with a court'. Then I say that it is an interesting point that Mr Lander makes. He is not a court: he is a tribunal, he is an inquirer, he has powers to investigate and we have made that clear. I then say:

The part I want to get to the most—because I know we are running out of time—is the right to silence. I have to say, Mr Lander, that I imagine the very impressive capital works you have been conducting on the public hearing facility will have you on an elevated podium—

Mr Lander then says, 'Slightly,' so he will be elevated, much like you are, sir. Then I say, 'Slightly, with perhaps a crest in front of you, perhaps witness boxes.' Mr Lander then says, 'Probably.' I then say, 'Yes; it will look a lot like a court.' Mr Lander then says that, yes, it will look like a court, yes. I then say:

It won't look like an interview room in a police station, where an investigation is conducted. It will look like a court, and the person overseeing that is [the Hon.] Bruce Lander QC, former Supreme Court judge, former Federal Court judge, eminently respected. How is a member of the public meant to distinguish that, between an investigation and a trial?

Remember, we are talking about a reasonable person at home watching this on television or watching this online. I think the Attorney-General would say, probably rightly, 'Well, people aren't stupid. They can tell the difference between an investigation and a trial.' I do not think people are stupid, but I will point you to Mr Lander's answer:

I'm not sure how to answer that…Do you appoint someone who is not suitable for the job, who wasn't previously a judge…

And that is the point. The people we appoint to these positions are eminently respected by both sides of politics and the parliament, the community and the legal profession. They are wise, they understand the rule of law, they understand the rights of witnesses, they understand how investigations work, they have sat in courtrooms their entire lives and they are experts on the law.

We are building a system around these eminent people where they sit in elevated positions with crests in front of them, with witness boxes and counsel assisting, in the public, where people before them have no right to silence, no right to legal representation and can incriminate themselves. Who are the public going to believe? What happens to reputations? It is not enough to say that if you have done nothing wrong you have nothing to worry about. Reputations matter.

I will make an aside. There is this theory now of the permanency of the internet. Before, there were newspaper clippings; now, there is the internet. When you google the Attorney-General, the entire legislative framework of her entire political career comes up. It is the same with me—the good and the bad.

Mr McBride: Mostly bad.

The Hon. A. KOUTSANTONIS: Thank you, member for MacKillop, for that very generous interjection. When you google the member for Morphett, you get about two lines on his football career and the rest on his appalling career as a councillor. He was a Collingwood footballer.

Anyway, the point I am making is that reputations are enshrined online now forever. What is the first thing an employer does when they want to hire you? They receive your CV, call your referees and, I bet you, search for your name on the internet. Some of them might even ask for police clearances, which is probably the appropriate thing to do.

What I am saying is that, whether or not you have done anything wrong, whether or not there has been a finding against you, participation here—without legal representation, without any rights, in a public hearing—could lead to dramatic reputational damage. This parliament, in the rogues' gallery in the members' lounge, is littered with members of parliament who lost by 20 or 30 votes. They have had their reputations destroyed unfairly through media scrutiny or otherwise. Forget the MPs—we deserve it, but does the public? Mr Lander goes on to say:

The act requires a person to have certain qualifications to be appointed as commissioner. Of course—

and this is important—

some people will mistake an administrative decision-maker for a court—

Even the commissioner concedes that a public hearing may be misinterpreted by reasonable people as a court. He goes on to say:

…that happens all the time. There are many tribunals in South Australia where people think they are courts, but they are not courts: they are administrative decision-makers. Look at SACAT…they look like courts, they sound like courts, but they are not courts.

Far be it from me to disagree with the Hon. Bruce Lander QC—and I will not—but SACAT does not have coercive powers to compel you to give evidence, and you can have a lawyer present when you are at SACAT, I think. I said:

…if it's done in public—

that is, an ICAC inquiry—

without the protections [afforded to you] in a trial—like the right to silence, like the right to discovery, to know who your accuser is—and I understand the difficulties, what Mr Duggan outlined, that investigations evolve, so you gain information. I think there is a question we need to understand of how you would do discovery in an investigation—

Mr Lander then corrects me and says:

Mr Koutsantonis, we are going back to where we started. There is no accuser. An investigation doesn't have an accuser: an investigation follows the evidence and it follows the evidence wherever it goes. The administrative decision-maker is not an accuser. He or she is a decision-maker, so there is no accuser and you just follow the evidence.

I said, 'But surely the public would perceive you as the accuser,' and Mr Lander then says:

Well, they shouldn't…We're getting confused again. It is not a question of discovery—

I laboured this point about discovery, that is, knowing who has made an accusation against you, the context of that accusation, when it was made, who else heard it made and whether you can cross-examine the person who made the accusation against you to defend your good name in a maladministration inquiry. These are all things that are subjective and entirely up to the commissioner. There is no statute that compels or gives anyone the right to call these people and cross-examine them.

For example, Mr Deputy Speaker, if the government does the right thing and promotes you into the ministry and you become a minister and someone makes an accusation against you, should your lawyer not have the right in a maladministration inquiry or a misconduct inquiry to cross-examine that evidence being given to the tribunal? There is no such right in this ICAC inquiry that we are establishing now, and I think that is a grave concern.

What we have here is a political imperative getting in the way of people's rights. It is not the Attorney-General's fault because the weight of public opinion pulls us towards public hearings, which we all support. The question for us is: how do they operate? Mr Lander says:

The person who may be subject to the adverse decision gets all the relevant documents—

says who?—

all the relevant evidence before the decision is made, and that person, in the procedural fairness process, has an opportunity there to say, 'Look, I want to give further evidence myself, I want to cross examine this particular person, I want these documents, I want further documents.' All of these have been exercised in the two matters upon which I have reported. That is when they get discovery, as you call it.

What the commissioner is saying there is that he conducts his inquiry, makes a finding in a draft form and then provides it to the individual. Imagine this all in public. It is completely at the discretion of the commissioner whether or not you can cross-examine the people who have given evidence that the commissioner has relied upon to make that finding. It is not a right, but a discretion, like having a lawyer. I think that, if it is being done in public and being broadcast, people have a right to defend themselves.

The member for Narungga was also on the committee. He is a quiet achiever and someone who surprised me with some of the questions he asked, as I did not think he was that interested in the ICAC. I do not mean it in a disparaging way; I mean it in a good way. I think he was very keen to assist the government, which disappointed me no end.

The problem with a public hearing without any rights for witnesses or the accused is what happens in reality. What happens next? Let's play this out. We are all professional politicians in here and I think all our public servants are relatively well schooled in the realities of public life.

The realities of public life mean that, if you appear before an ICAC inquiry without a lawyer, without the rights that I have articulated, and there are adverse findings against you, and then some day later—two, three, four years from now—you exonerate yourself in a court, it is all for nothing because the caravan has moved on. The reputational damage is done. The earning capacity has been ruined. The public servant's career is over.

Some of us may think that a maladministration finding is not that consequential to a career, and it might not be to some. Indeed, the government has appointed as a chief executive someone who has a maladministration finding against them. That is their right. That is their absolute right to do so, but the question then becomes: at what cost do you attempt to exonerate yourself? If these things are done in private, is it that the rights are not as pertinent because there is no reputational damage? If there is a finding of maladministration or misconduct there are avenues, but in public, while it is playing out day by day, blow by blow, there is no return from reputational damage. There is none. It is over.

People might say, 'Well, who cares?' I have to say that there are people I meet in my constituency who say, 'Why do criminals, or anyone, get rights when they are being investigated by police? They should have no rights. If you have done nothing wrong, you have nothing to worry about. You should not have a right to a lawyer. You should not have the right to silence. Gaol terms are not long enough.'

Well, the reason we have gone down this path is that we have built this democratic society on the basis of some principles, and one of those is the rule of law. I fear that we are chipping away slowly at those pillars that have built South Australia, Australia and most western democracies in the pursuit of political populism or, even worse, convenience, because principles are hard to defend especially when it is inconvenient. The fundamental rights that an individual living in South Australia should have are the right to legal representation and the right not to be humiliated publicly unfairly even if it is inadvertent.

If the state keeps chipping away at it, what is next? Where else do we go? What else do we take away? Do we start removing privilege? It has been suggested at the Crime and Public Integrity Policy Committee that privilege be removed. The commissioner himself argued that privilege should be weakened for members of parliament, that they can have their comments investigated. Well, I do not support that. I do not think that any member of this house supports that because the pillars of this place support our democracy.

I was heartened to hear the commissioner say that he wrote a paper in the 1960s on the supremacy of the parliament, and he wrote it because he believed that the parliament was supreme and that he believed very passionately in parliamentary privilege, and I think that those safeguards we have in place are there for a reason. It is our job, as custodians of South Australia for the brief time that we are here, to make sure that we protect the rights that we ourselves take for granted and to make sure that all South Australians have those rights shared among them, but I do not want this to be confused that I am arguing against public inquiries. I am not.

I support public inquiries. I support the Supreme Court having cameras there. I support the Magistrates Court having cameras. I support justice being done in public. What I do not support is the erosion of rights inadvertently. I do not understand how we can get to this point, where there is a clamour from a properly elected government to do this, and why there is not more outrage, and why there is not more dissent, and why it is just coming from the opposition and the crossbenches.

I have known professionally the member for Bragg since she was elected in 2002. I think she is a fierce, independent thinker who is passionate about the Liberal Party and the things that she wants to do. I suspect that, if the Attorney-General were on this side and if we had attempted to do this—public hearings without legal representation, without the rules of evidence applying, without the rules of the Magistrates Court applying—there would be a thundering speech. It would be an eloquent speech—better than mine because I do not understand the law as well as she does—about the rights we are watering down. I do not understand why there are not more Liberal MPs making the same speech, better than me, about the same issue, because there is no justification for it—none.

Even the ICAC commissioner thinks I am right. He said so to the parliament. I am not quite sure how the Attorney-General can rely on the ICAC commissioner's correspondence or advice, because he has been very clear to us on two occasions on the same day that everyone should be entitled to legal representation.

This could all be for nothing. The government could be preparing not to proceed with those amendments—I do not know. There might be further discussion about this. I am not sure how well debated this has been in the Liberal Party caucus room or within the forums of the Liberal Party, but I do know that there is a great deal of concern outside and inside this place about what the Attorney is proposing. It is not hostility towards her; I think it is a fundamental confusion about why this is being done and what is the benefit. How does the parliament or the ICAC process benefit from denying people legal representation, the right to silence, the right to appeal? How does that lessen the process? Is it more expensive; is that the reason? I do not know.

The member for Kavel made some very good points, and I wish to quote them to the parliament because I think it is important that the parliament have the benefit of the evidence given by the ICAC commissioner in response to the member for Kavel's questions. The general sense of it is that the ICAC commissioner went to great pains to explain to the committee and rebut the concerns that Mr Abbott raised. I do not want to mislead the parliament or misrepresent either of these two men, who are much more qualified regarding the law than I am, but I think what Mr Abbott was summarising to the committee was that the thing about these inquiries, Mr Abbott claimed, was that they start backwards. I do not know whether or not that is true.

Mr Abbott claimed that the idea of an inquiry that is basically trial by ambush is unfair and undemocratic for a number of reasons. Mr Lander rebutted Mr Abbott's commentary, and it is open to parliamentarians to read and make their own decision about who was right and who was wrong. I was in agreement with a lot of what Mr Abbott was saying, and that is not a criticism in any way of Mr Lander, whom I hold in the highest regard. This is the bit I want to read out. This is the ICAC commissioner giving us his prepared statement on page 351. He says:

Mr Cregan asked Mr Abbott whether it is difficult to achieve procedural fairness and natural justice without the rules of evidence. Mr Abbott replied—

The DEPUTY SPEAKER: Member for West Torrens, you probably should refer to Mr Cregan, even though you are quoting, as the member for Kavel.

The Hon. A. KOUTSANTONIS: My deepest apologies. The member for Kavel:

…asked Mr Abbott whether it is difficult to achieve procedural fairness and natural justice without the rules of evidence. Mr Abbott replied:

'Some of them, yes. It depends what degree of natural justice. You see, the ICAC commissioner, I think, regards his obligation to accord natural justice as pretty light on. I don't think he regards the obligation of natural justice as encompassing full disclosure of every statement that might be adverse to a person in his investigation.'

Mr Lander goes on to rebut that and takes quite a bit of offence at what Mr Abbott said. Let's get back to the important principle. Do you have procedural fairness if you do not have an opportunity to rebut the accusations against you? My view is, no, you have not had procedural fairness. Does that matter? The ICAC commissioner, in the nature of the act—I am not saying he would do this; let's be very clear that I am not accusing him of doing this—could quite easily find you guilty of maladministration or misconduct, not afford you procedural fairness and claim that he did. Four years later, a court agrees with you, but in four years' time things have moved on. This gets down to the fundamental point. Mr Lander answers that, quote:

With respect to Mr Abbott, there are a number of misstatements of law in that answer. There is also a misstatement of fact. Firstly, procedural fairness and natural justice are the same thing. When you talk of natural justice, you are talking about the process in the court. When you talk of procedural fairness, you are talking of the process before an administrative decision-maker. But they are essentially the same thing.

The High Court has said, when dealing with a consideration of an administrative decision-maker's obligations, one should talk of procedural fairness. In speaking of a court's obligations, one should speak of natural justice. That is the reason for the use of the two terms but, from my point of view, the question is procedural fairness.

Are there degrees of procedural fairness? I am not sure I am qualified to answer that. I think the answer is no: either you are accorded it or you are not. If you are not accorded it, then you have not received it. If at any time during any process through any matter procedural fairness is not accorded to someone, then you have not been given the fairness that I think is required for such an inquiry. The ICAC commissioner himself agrees with me on this. He says:

Putting aside the fact that we are talking about procedural fairness…Procedural fairness and natural justice do not go by degree. When an obligation is imposed on an administrative decision-maker to accord an interested party procedural fairness, the decision-maker either complies with that obligation or not; that is to say, the decision-maker either provides the interested party with procedural fairness, or the administrative decision-maker fails to comply with the obligation to provide procedural fairness.

There are no degrees of procedural fairness. The content of procedural fairness will depend upon the nature of the inquiry and the manner in which the investigation has proceeded.

That is important. There are no degrees of procedural fairness. The content of procedural fairness will depend upon the nature of the inquiry. I read 'the nature of the inquiry' also to mean whether it is public or in private. They are very different. In a private inquiry, there is no risk of reputational damage or being unfairly tainted with a particular outcome.

If the ICAC commissioner himself believes that you should have a right to a lawyer and that procedural fairness is either given or it is not—there are no degrees of it—and it depends on the nature of the inquiry, why will the parliament not allow people to have that right? I think it is important to remember that, when you have the ICAC commissioner making these arguments, it is incumbent upon all of us to understand exactly what the consequence of the government's amendments will be.

It will mean that in a public inquiry, when someone has already exercised their right of appeal, someone new being called to that inquiry has no right of appeal to a higher court to attempt to have it done in private and will have no right to legal representation. Therefore, that person will not be accorded procedural fairness, will not know who their accuser is and will not be able to cross-examine witnesses or evidence that is given against them. The outcome is final and the damage is done. Mr Lander says:

Mr Abbott was asked by [the member for Kavel] whether the Supreme Court Rules or other rules of court ought to apply to aspects of this process. Mr Abbott agreed that some of the Supreme Court Rules could well apply. The Supreme Court Rules have no application to an inquisitorial investigation. [They] are designed to provide for the exchange of information and the holding of a trial in a dispute between two or more parties who have, as I have mentioned earlier, identified the issues upon which they were seeking the court's adjudication.

Mr Lander claims:

The Supreme Court Rules have no application to anything I do. They only apply to adversarial proceedings. There are some rules that the Supreme Court have made in relation to application for warrants, but they are special in relation to the application for warrants and they are appropriate.

What Mr Lander was telling us is that inquiries cannot operate under the rules of evidence or the Supreme Court Rules because of the adversarial nature of an inquiry, where the prosecutor and the defendant have access to the same information. However, I would take people back to my starting premise; that is, how does a reasonable person distinguish between ICAC being a trial, or a court, and being an inquiry? I do not think you can. I do not think a reasonable person can distinguish between the two. The question then for us is: why not give them these rights?

I do not think these amendments that the Attorney-General has submitted to the parliament today will pass the Legislative Council. I think they will fail. I think the Legislative Council will hold firm. I think there are some reservations from members in this house, but I think they will vote for the bill, so I think that the Labor Party will be unsuccessful in stopping the amendments that the government is moving—and I see some members nodding. That is a shame.

It is shame for a couple of reasons. The opposition does not do this to hamstring the government, stifle the government or stop the government from fulfilling its election commitment of an open hearing. We do not want to do that. We agree that there should be open hearings. We agree that the ICAC should conduct maladministration and misconduct inquiries in the open, if the commissioner thinks it is appropriate. I go back to my point, without wanting to labour it over and over again: you cannot do that without rights because the impact on ordinary people could be devastating.

In broad terms, the amendments that succeeded in the Legislative Council were as follows. A commissioner must head any public inquiry; that makes complete sense. It inserted a review of its operation by the Crime and Public Integrity Policy Committee; again, I think that is a very sensible recommendation because it is important that the parliament maintains its very strong oversight of the ICAC. While Commissioner Lander is there, I do not think we have anything to be concerned about, but the moment Commissioner Lander leaves and there is a new appointee there is always a time of bedding them in. Of course, as we have seen in examples in New South Wales, some ICACs can go off the rails because of the extraordinary powers they have.

The next amendment that was successful in the Legislative Council was that the person heading an investigation, and this codifies it, must act in accordance with the principles of procedural fairness:

…in the case of a public inquiry an examination of a witness must be conducted in accordance with the rules of evidence, practices and procedures applicable to witnesses giving evidence in summary proceedings in the Magistrates Court…

What is wrong with that? If the commissioner finds that too cumbersome, he can hold the inquiry in secret—no problem. All we want it to protect people from any public humiliation or reputational damage.

We want to codify, and the Legislative Council has agreed to this, that a witness in a public inquiry can call their own evidence and is allowed to be represented at the examination of other witnesses. Why would you want your lawyer present while another witness is giving evidence? To cross-examine them; it is obvious. You want them there to make sure that everyone is afforded procedural fairness.

If you make an accusation against someone in an ICAC inquiry, it deserves to be tested if it is in public; if it is in private, that is a different matter altogether. The question for us is: do we allow the Attorney-General to deny public officers the right to do that? I do not think we should, and the Legislative Council agrees with me.

The government has filed amendments to the bill that appear to undo almost all the work of the Legislative Council, and this is where it gets very tricky for me. I have not had the benefit of hearing publicly from the ICAC commissioner that he supports the amendments moved by the Attorney-General. If the Attorney-General has any correspondence from the ICAC commissioner, or anything that can assist the house or the opposition in understanding what the ICAC commissioner is attempting to achieve through his representations to the Attorney-General, we would be pleased to see it.

All we have is the ICAC commissioner's public statements previously to the Crime and Public Integrity Policy Committee, where by and large he did not agree with some aspects of the rules of evidence. We accept that, but he did agree to the right to legal representation to be unfettered. I would like to know exactly how we got to this situation, where there seems to be some sort of either misunderstanding or conflict between the Attorney and the ICAC commissioner. There might not be; they might both be in total agreement, but if there is some misunderstanding we have been told something that is not true. That needs to be corrected—and quickly.

Let's work this back a little. The parliament tasked the Crime and Public Integrity Policy Committee to do an investigation into the ICAC Act. We went away and, like diligent little members of parliament, we held inquiries, we took evidence and we made recommendations. That evidence—by the ICAC commissioner—told us that it was safe and appropriate to recommend that legal representation be unfettered, and now we are being told something different.

If the committee was told one thing and something has changed, we would like to know what has changed. Has some advice been offered to the ICAC commissioner or to the government that says that this process somehow is unworkable? We would like to know what it is because—and we are not trying to be difficult here—we are actually trying to get an outcome.

I am advised that amendments Nos 1 and 2 can be considered together, as they are to remove the ability for the Supreme Court to extend a time limit for appeals, so we are limiting the powers of the court. It will have the effect of allowing a single appeal only one ground of jurisdiction on whether to hold that a public inquiry was properly made. Why? Why should anyone being told to give evidence to an ICAC inquiry have this right denied them? Let me put it another way: why does one person get this right and others do not? Why is it afforded to only one person and not everyone? How is that procedurally fair?

If an inquiry into maladministration is conducted, the ICAC commissioner sets out his list of witnesses, sends out his subpoenas and says, 'Under this clause of the act, I require you to give evidence, so please present to 55 Currie Street,' or wherever he is going to build his new courtroom to hold the inquiries. In the first two days, one person appeals, the court hears it, game over; they lose and it goes to an inquiry. Through the operation of the procedure, the ICAC commissioner calls someone else.

That other person cannot avail themselves of the same rights as those of the initial people who were called to go to the Supreme Court to lodge an appeal that the decision was properly made to hold this inquiry in public. How is that fair? Why does the government want to stop that? What impact does that have on the government for open hearings? It has none. It just means that all citizens are equal before the law. They have the same right as everyone else appearing before that inquiry by the commissioner. Why would we not support that? Why would the government want to take that away? In my experience, the Legislative Council are not the most agreeable to making changes. They are the ones who inserted this, so why would you want to take it away?

Amendments Nos 3 and 4 relate to appeals regarding decisions of suppression and reduce the time a person has to make an appeal to two business days. Two business days is a very short period of time. You have to find a lawyer and you have to brief them. Remember, at this stage you do not have a lawyer, so you have to find a lawyer and brief them, but you have only two days. To fully digest the implications behind a decision, engage legal representation and have your legal representative respond to that decision is not going to happen in two business days. You would have to have counsel already engaged. Of course, under the government's amendments, that can be denied you by the ICAC commissioner. They are not seeing what is going on, but you have only two days to lodge an appeal. It is hardly fair.

I understand that the Hon. Kyam Maher asked the representatives the government made available to brief the opposition whether a person could file an intent to appeal and provide a full submission at a later date. We are advised that the officers did not know the answer and that we would be advised here in the parliament, so I look forward to that.

Additionally, the Hon. Kyam Maher asked during the briefing whether the government could point to a single other example where appeals to the Supreme Court are limited in this way, an example of a precedent that the government is following to point to practise somewhere else where this operates so we know exactly what the thinking is, but the government could not. Do you know why? Because there is no other example where it is limited to this level.

I go back to my first principles. Why? Why would the government want to do this? Why does the government want to limit the right to an appeal to two days? What benefit does that give public hearings? I think it does one thing: it has the outcome of stacking it against the people who are appearing, which is not exactly fair.

Amendments Nos 7, 9 and 10, to be moved by the Attorney-General, are at complete odds with the spirit of the amendments and the bill given to us from the Legislative Council. They are the antithesis of what the Legislative Council thinks should happen in an open hearing.

The Hon. V.A. Chapman: Which ones did you say?

The Hon. A. KOUTSANTONIS: Amendments Nos 7, 8, 9 and 10. The effect of amendment No. 7 that the Attorney-General wants us to accept—sorry, that she will impose on us because we cannot stop it—is to delete the requirements for the rules of evidence, procedural fairness and Magistrates Court proceedings. Further, the amendment specifically specifies that the rules of evidence and procedural fairness explicitly do not apply. The ICAC commissioner thinks procedural fairness should apply. He does not think that the rules of evidence should apply but he does think that procedural fairness should apply. Let's unpack this.

Why does the government want to remove the procedural fairness that is ensured in statute? What is the benefit to the act? How does it benefit anyone? Who does it benefit? The ICAC commissioner says that it should apply. He said so in evidence. So who drafted this? Why would you not want procedural fairness to apply? I would have thought any government that wanted to get re-elected would tell its citizens, 'Of course procedural fairness should apply.' The ICAC commissioner says that he wants it to apply. He wants you to have a lawyer unfettered.

I am sure that we will hear an explanation from the Attorney-General. The ICAC commissioner is giving evidence on Monday at the Crime and Public Integrity Policy Committee, so I will ask him these questions then. I will ask him whether or not he has made representations or changed his view, as I think it is important that we correct the record of the Legislative Council because we have been told something very different.

As I have gone to great pains to explain, an ICAC hearing looks like, smells like, walks like and tastes like a court hearing. Absolutely, it is not an interview room in a police station. It is not an interview room in a boardroom. You do not walk in and sit next to the ICAC commissioner and answer his questions. You walk in, you take your oath, you sit beneath him in a witness box and you answer questions like it is a court, not an inquiry.

Amendments Nos 8, 9 and 10 are interesting for members on the backbench who gave up long and prosperous legal careers to run for parliament. These amendments curtail the ability of legal practitioners to represent and defend their clients. The effect of the amendments filed by the government is to limit the actions of legal practitioners to those approved by the ICAC examiner. If the examiner can deny your lawyer the right to take action, you do not have legal representation. When Bevan Spencer von Einem was arrested, he was afforded more rights than we are affording people in a public hearing at the ICAC. He was entitled to a lawyer and entitled to the right to silence. At his trial, the rules of evidence applied.

I want to restate where we are coming from. We believe that the Legislative Council has sent us a bill that we can support. I believe that it is the will of the parliament to support the bill as is. I also know the political reality that the cabinet have exerted their influence over the party room of the Liberal Party and that they will be supporting the government's amendments in the House of Assembly. I do not think that the government's amendments will pass the Legislative Council; they will not be agreed to. The question is: what happens then?

I think that we should defend the idea of public hearings. I think that they are meritorious. I think that the government is right to want to have public hearings. In that pursuit, we have to be able to come together as legislators, rather than as political parties, and come up with a model that can last into the future because partisanship over ICAC rarely works. If we go back to first principles again, what was it that Jay Weatherill and John Rau were attempting to achieve?

The Hon. V.A. Chapman: In stopping us having an ICAC?

The Hon. A. KOUTSANTONIS: No, after they agreed. The Attorney-General rightly says that the former government, in its various incarnations, did not always support the establishment of an ICAC. Then Jay Weatherill became premier and the government then supported an ICAC. The ICAC was developed in a way to stop it from being partisan. What do I mean by that? Well, in New South Wales, the accusation du jour is: 'I have referred you to ICAC.' It is now awash with scandal. It is awash with a loss of faith in the institution.

We have had serious concerns and inquiries into the operation of ICAC. A number of people have appeared before the ICAC and had corruption allegations made against them and proved. Some have gone to gaol and some have not. It is all done in the open, in public, and I think it is a mess. What the ICAC commissioner is attempting to do along with the government is quite elegantly come up with a system that allows us to maintain our treasured position of having a very good system for corruption investigations, which, at this stage, no-one thinks should change: not the Attorney-General, not the shadow attorney-general, not the government, not the opposition, not the ICAC commissioner—no-one.

I think there are a few crossbenchers or people who are attempting some publicity who do support a change to the way corruption investigations are conducted but, by and large, the sensible centre has maintained the right thing. Now we are at the case of open hearings. I think that here is where we depart from the new consensus that has been in place since Jay Weatherill and then leader of the opposition Isobel Redmond, and subsequently the current Premier, agreed upon this model. To be fair to the Attorney-General, she has always advocated for open inquiries into maladministration and misconduct. She is to be commended for that, and she is about to get them. But I say again: do not throw out the baby with the bathwater.

I think that the Legislative Council gave us something that will work. The ICAC commissioner, who is a member of the executive, is making a lot of public statements about the operation of the ICAC bill. He is in a unique position. There are not very many other members of the executive who are entitled or allowed to do that, but that is his right. He is an independent statutory officer. He makes his views known. He is able basically to draft a bill as he sees fit and make recommendations. He is an expert; we should rely on him. We absolutely should rely on the ICAC commissioner.

However, it gets to the point of whether we have to agree with everything. Are there some principles at stake? The question really is: can the ICAC commissioner do his or her job if there is an open inquiry and with what the Legislative Council has given us? I say that the answer to that is unashamedly yes. The Crime and Public Integrity Policy Committee, which sat through hours and hours of witnesses, certainly thinks that.

I would point out that we had a number of witnesses. The only witnesses who supported the government position in some, but not all, aspects were the ICAC commissioner and Mr Duggan. Apart from that, my characterisation of all the evidence we received supported the Legislative Council's model because the ICAC commissioner supported unfettered legal representation and procedural fairness. The government is specifically prohibiting procedural fairness and allowing the ICAC examiner to remove or deny a lawyer.

We have gone down a path where the Legislative Council has taken almost everything the ICAC commissioner wanted, bar the rules of evidence, and agreed to them. We agreed to what the Bar Association wanted. We agreed to what the Law Society wanted. We agreed to what the Ombudsman wanted. Inexplicably, the government has gone down a different path.

I would be fascinated to hear what the Attorney's view is about why we have gone down this path and her explanations for the amendments when she closes the debate and we go into the committee stage. I mean that sincerely because she was the author of this policy from opposition. I know this because I remember her quizzing the then attorney-general John Rau about it constantly.

The question that I would like answered during the committee stage is: why the delay? I will give the government plenty of notice so they can go away, do some research and come back to us with some detailed answers. They can get the Hansard afterwards. We do not have a very large legislative program. I do not mean that in an offensive way. It is just not very busy. We finish most nights at 6pm. There is plenty of opportunity for us to have debated this earlier.

Why did it take two months to come back here? In that intervening two months, what caused the change of heart? Were these amendments consulted on? Was the Law Society consulted on these amendments? Was the Bar Association consulted on these amendments? Was the ICAC commissioner consulted on these amendments? Who was consulted on these amendments? Were SAPOL, the Commissioner of Police, the Electoral Commissioner or the Ombudsman consulted on these amendments? Who was consulted?

Regarding amendment No. 2, for example, we want to know whether the Attorney will confirm that the effect of the amendment is to allow only one appeal on either jurisdiction or whether it was properly made. If that is the case, does that mean that a witness called later in the investigation cannot make an appeal on those grounds? I seek leave to continue my remarks.

Leave granted; debate adjourned.