Independent Commission Against Corruption (Miscellaneous) Amendment Bill

Introduction and First Reading

Received from the Legislative Council and read a first time.

Standing Orders Suspension

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills) (15:38): I move:

That standing orders be so far suspended as to enable the bill to pass through all remaining stages without delay.

The DEPUTY SPEAKER: An absolute majority not being present, ring the bells.

An absolute majority of the whole number of members being present:

Motion carried.

Second Reading

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills) (15:40): I move:

That this bill be now read a second time.

Today, I introduce the Independent Commission Against Corruption (Miscellaneous) Bill 2024, first introduced by the Attorney-General in the other place. As members would be aware, in 2021 significant changes were made to the Independent Commission Against Corruption Act 2012 with the passage and commencement of the Independent Commissioner Against Corruption Amendment Act 2021.

This bill is designed to address a small number of omissions or unintended consequences from that amendment act. At the outset, I want to make clear that this bill is in no way designed to significantly change or reform the way the integrity scheme in South Australia currently works. Many of the amendments in the 2021 amendment act, such as the creation of the Office of Inspector, have only been in operation for a relatively short time. The government would like to see these amendments in operation and allow time for agencies to develop their practices and procedures, as they have been doing.

Further, I understand the Crime and Public Integrity Policy Committee of the parliament intends to commence a review of the operation of the ICAC Act as it is required to do by the Parliamentary Committees Act towards the end of this year. That will be an appropriate forum for exploration of other ideas to amend the integrity legislation. The government is not closed off to the possibility of further amendments in the future, but today we seek to progress a small number of issues.

The bill will amend schedule 5 of the ICAC Act to change the criteria for the reimbursement of legal costs under the ICAC Act. The amendment will ensure a public officer who has been convicted of any offence is precluded from reimbursement. There have been differing views expressed regarding the application of the fee reimbursement provisions of the 2021 amendments and this bill aims to put these matters beyond doubt.

The 2021 amendment act inserted section 39A into the ICAC Act which requires a disclosure of certain information following the completion of an investigation under the ICAC Act to the person who was the subject of that investigation. Concerns have been raised about the mandatory operation of this section being too restrictive. The bill will amend section 39A to allow an application to be made to the Supreme Court for an authorisation not to disclose that information. The Supreme Court can grant an application if it is satisfied that informing the person who was the subject of an investigation will be likely to compromise another investigation by the ICAC, a law enforcement agency or a public authority or give rise to an imminent risk to the safety of a person or persons and the making of the order is reasonable in all the circumstances.

The amendment act abolished the office of ICAC reviewer and created the Office of Inspector under schedule 4 of the ICAC Act. The inspector's functions include conducting reviews of the operations of the Office for Public Integrity and the ICAC and other reviews at the request of the Attorney-General. There is currently no ability for the inspector to delegate their powers or functions. This omission is impractical and inconsistent with other statutory officers. It could also undermine the inspector's integrity oversight role if the inspector had a conflict of interest in undertaking their powers or functions.

The bill, therefore, inserts a delegation power in relation to the inspector's powers and functions. The bill also clarifies the inspector's ability to investigate the exercise of power under the ICAC Act as it existed prior to 25 August 2021. The amendment act changed the title of the act from the Independent Commissioner Against Corruption Act 2012 to the Independent Commission Against Corruption Act 2012. The bill inserts additional provisions into schedule 4 of the ICAC Act to make the scope of the inspector's jurisdiction clear in light of the change in name of the act, such that the inspector may examine exercises of power occurring prior to 25 August 2021.

The bill will also amend schedule 1 of the Ombudsman Act to change the criteria for reimbursement in relation to ministers and members of parliament, to align with the changes made to the ICAC Act to preclude reimbursement for a minister or member of parliament who has been convicted of any offence. This is intended to reflect the unique decision-making role often played by members of parliament and ministers.

The bill will amend schedule 5 of the ICAC Act and schedule 1 of the Ombudsman Act to ensure that legal costs may be reimbursed in relation to any criminal proceedings following an investigation under those acts, as well as costs associated with investigations under those acts, provided the other criteria set out in the ICAC Act and the Ombudsman Act, as the case may be, are satisfied. Importantly, those criteria include that no criminal conviction has occurred as a result of the relevant investigation.

A related amendment is also made to the Public Finance and Audit Act 1987 to provide a regulation-making power to deal with the reimbursement of costs incurred by public officers in engaging independent legal practitioners.

Except to the extent that the ICAC Act and Ombudsman Act deal with the costs incurred where there have been investigations under those acts, reimbursement of legal costs incurred in responding to or participating in certain civil and criminal proceedings, including coronial inquiries, is currently dealt with by Legal Bulletin 5—the government's policy for approval of reimbursement of legal fees by the Attorney-General in accordance with the Treasurer's Instruction 14: Ex Gratia Payments. It is intended that the matters dealt with by Legal Bulletin 5 will be instead dealt with by regulation under the Public Finance and Audit Act.

Concerns have been raised about leaving the ultimate discretion to a minister on the question of the reimbursement of legal costs incurred by current or former members of parliament and ministers—as is currently the case with Legal Bulletin 5. In effect, the framework as it stands today means political decision-makers have discretion over the reimbursement of legal fees to their political opponents. To address this concern, the bill restricts the exercise of ministerial discretion over such decisions involving reimbursement to current and former ministers and members of parliament.

As I said at the outset, this bill is designed to address a small number of operational and technical issues identified in the ICAC Act, as well as making related amendments to other acts. While the government is not opposed to considering further amendments in the future, we believe this small set of issues should be addressed as a priority. I commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal. Clause 4(2) and (3) are to be taken to have come into operation on 5 December 2022.

Part 2—Amendment of Independent Commission Against Corruption Act 2012

3—Amendment of section 39A—Information to be provided

Section 39A of the Act requires the Commission, or an agency or authority (as the case may be), to take reasonable steps to ensure that a person who was the subject of the investigation is informed of a determination to take no further action. This clause amends the section to allow the Supreme Court to authorise the withholding of such information in certain circumstances.

4—Amendment of Schedule 4—Inspector and reviews

This clause inserts a delegation power for the Inspector and also provides clarity in relation to some transitional arrangements arising out of the enactment of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021.

5—Amendment of Schedule 5—Reimbursement of Legal Fees Policy

This clause makes some minor clarifying amendments and limits the right to reimbursement of legal fees by providing that a Government employee, Government Board appointee, Minister or Member of Parliament that is convicted of any offence as a result of the relevant ICAC investigation will not be entitled to reimbursement.

Schedule 1—Related amendments and transitional provisions

Part 1—Related amendment of Ombudsman Act 1972

1—Amendment of Schedule 1—Reimbursement of Legal Fees Policy

This clause makes amendments for consistency with the changes being made to Schedule 5 of the Independent Commission Against Corruption Act 2012.

Part 2—Related amendment of Public Finance and Audit Act 1987

2—Amendment of heading to Part 2 Division 4

This clause makes a consequential change to a heading.

3—Insertion of section 20B

This clause inserts a new section as follows:

20B—Legal assistance costs

This clause provides for the making of regulations to prescribe a scheme for the reimbursement of costs associated with the engagement of an independent legal practitioner by a Government employee, Government Board appointee, Minister or Member of Parliament.

Part 3—Transitional provisions

4—Application of amendment to Schedule 5 of Independent Commission Against Corruption Act 2012

This transitional provision ensures that the new rule on reimbursement of legal fees in Schedule 5 clause 3(a) of the Independent Commission Against Corruption Act 2012 will apply in relation to any claim for reimbursement of costs that is certified by the Crown Solicitor (or another authorised person) after commencement of the relevant amendments contained in the measure.

5—Application of amendment to Schedule 1 of Ombudsman Act 1972

This transitional provision ensures that the new rule on reimbursement of legal fees in Schedule 1 clauses 3(a) and 6(1)(a) of the Ombudsman Act 1972 will only apply in relation to any claim for reimbursement of costs that have been incurred after commencement of the relevant amendments contained in the measure.

Mr TEAGUE (Heysen) (15:47): I rise to indicate I am the lead speaker for the opposition. I indicate the opposition's support for the bill and note the minister's rehearsal of the Attorney's speech in another place just now for the purpose of the record in the House of Assembly.

Perhaps to start at the end and work back, the bill certainly contains a change of arrangements for the reimbursement of costs on application for members of parliament and ministers. The point has been made about the discretionary nature of that and the risk of the situation in which government ministers are exercising discretion in relation to political opponents and so on. I just highlight at the outset that that is so. Happily, it has not been characterised by politicisation. It is one of those areas of ministerial responsibility that ought to remain something that can be exercised absent use as some sort of political lever, and it has not been.

The step to make it even more removed from some sort of risk of politicisation seems to be perfectly feasible. You do not want to run away from every discretionary exercise of ministerial power. There are still plenty of examples in the day-to-day conduct of executives that you have a discretion precisely so that unforeseen circumstances can be dealt with and so that you are not unnecessarily creating rods for your back in all sorts of directions. That said, it is a process that at its core has the purpose to provide certainty and to remove any possibility of it being politically weaponised.

There is some provision in relation to the inspector's capacity to delegate tasks. It is timely that I acknowledge the appointment of the new inspector, a matter that has been gazetted earlier today. Mr Abbott KC is an eminent member of the legal profession and I offer my congratulations to him on his important work in that role. Those amendments in relation to the inspector's office are welcome.

The amendment that is there to the Ombudsman Act creates a parity of the level at which reimbursement of costs will not be available to members of parliament and ministers. That is set at conviction so there is a rationale of consistency there. I have queried in the course of the development of the bill—and I thank the Attorney for the opportunity for a briefing prior to its introduction—the threshold for those members of the Public Service that kicks in at 'material adverse finding' still in relation to the Ombudsman inquiry and I am content there is a rationale for it.

There are in significant ways unique exposure—particularly for members of parliament, ministers are in somewhat of a different position—for which there is no recourse, or the likes that members of the Public Service otherwise might have recourse in the circumstances of such investigation. I flagged I would work backwards and I think I am continuing to do that consistently.

In terms of the changes to the prohibition—so at the other end—there has been a setting of the standard of conviction at which costs will not be recovered. At the other end of the scale, the 21 changes to the act had set a particularly high bar to that prohibition against reimbursement of costs; that is, the ICAC was essentially put to the test of not only investigating a matter within its jurisdiction going to corruption, but also having to achieve that high-level conviction in order for the prohibition against cost recovery to apply.

The ICAC still have that constrained jurisdiction pursuant to the 21 changes, but in the event that a prosecution ensues and, rather than that high-level conviction occurring, a conviction for a lesser offence results, these changes will mean that costs are not recoverable where they otherwise would have been at that higher level.

The ICAC has complained that it has a chilling effect on ICAC's activities. The recently retired ICAC commissioner, the Hon. Ann Vanstone, expressed this frustration in various ways including in the media and public pronouncements and so on that not only is there narrow jurisdiction but there is also this risk that the commission might be exposed to costs in all but the most narrow of circumstances; that is, when conviction for the highest level of offence is achieved. The ICAC has said, 'That will effectively mean that we do not pursue really much at all, because of that high exposure.' So it was a chilling effect.

I just have to note for the public record that there has been some reflection about that in the time since about it being an inadvertent, unintended result of those changes. That is not my recollection. My recollection is—and the provisions are what they are anyway, so we can all read what they have been since 2021—it was, in fact, to set the bar at that high level to ensure that the ICAC was investigating matters of, to put it gently, high-level corruption and achieving convictions of high-level corruption and not, as it were, investigating high-level corruption but achieving a conviction for albeit a serious offence but not at that high level that would act as a disqualifier to the recovery of costs.

So the change is really a normalisation. It brings us back to what occurs, really, in the ordinary sort of circumstance. The ICAC's jurisdiction to investigate is still at that more serious level, the result of the 2021 amendments, but it will not be liable to a reimbursement of costs where a conviction results even albeit a lower level conviction. I just note that for context. That is my view of it and others might maintain that it was more inadvertent than that, but I think there was a certain amount of deliberateness in the 2021 changes. This is similarly deliberate in ameliorating those circumstances to that extent.

The only other matter that I mention is the clause 3 amendments to section 39A. Again, this has been the subject of quite a deal of back and forth: the pros and cons of mandating that the ICAC, after concluding an investigation, go and tell the subject: 'Guess what? Without your knowledge we were investigating you.' I think it is fair to say that the ICAC would probably maintain a view that that could be counterproductive for all sorts of reasons, including all sorts of benign reasons, where it may not be necessary at all to bring such a thing, as it were, slavishly to the attention of everybody who might have come within the purview of the ICAC's activities. Be that as it may, this is far from a reversal.

The amendment to section 39A will provide a pathway, and a fairly serious formal narrow pathway, by which ICAC may if it sees fit approach the Supreme Court and endeavour to satisfy the court that there are good reasons for the non-disclosure, and those have all been set out by the minister in the course of that setting of the government's speech just now; so that is alright. Again, I stress that that is a pretty narrow pathway. The general rule will remain. The subject of the 21 changes, that disclosure, the informing of a person who is subject to investigation, will be the general rule, and this will be the narrow-path exception available to ICAC in those circumstances.

The government has been at pains to say that this is a discrete number of amendments that come at a time when, as the government puts it, not all that much time has passed since the 21 amendments were enacted. The Crime and Public Integrity Policy Committee is on its way, conducting a wideranging review, and the government has indicated its intention to keep an eye on that and to see the further working of the act. In the meantime, it is open to change, including what might emerge from that committee inquiry that is in the offing.

I indicate to the house that, as a member of that committee, that is something I am aware of as well, and I will be expecting to participate in the committee inquiry. I certainly hope that the inquiry will inform the changes, the further reform, that might be appropriate at some stage in the future. In that regard, the CPIP is nearly at the point of concluding its work in reviewing the operation of the Ombudsman Act. That gets a mention in this bill, of course. It also, importantly, interacts with the triumvirate of the OPI and the ICAC. If not an overlap, there is likely to be relevant connection between outcomes of the working of the Ombudsman and the forthcoming consideration of the ICAC Act.

With those observations, which I hope might serve as some reference for the purposes, including any future revisiting of the act, I commend the bill to the house and support its passage through this place.

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills) (16:03): I thank the member for Heysen for his contribution. I think it is safe to say that we all know that issues around areas of reform, when they traverse ICAC and issues about how those laws apply to people who work in this place and the other place, always attract a great deal of public attention and scrutiny, as indeed they should. However, I would like to think that the contributions made by the Hon. Kyam Maher in the other place and the two contributions just made in this place show that these matters have been given very thoughtful consideration, very thorough consideration.

They are not changes that we make lightly but I think, given the significance of the changes in 2021, it is perhaps not unreasonable that there might be some unintended consequences that may have arisen from those changes. It is only right that we now address those, and I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

Mr TEAGUE: Clause 3 is the amendment to Section 39A—Information to be provided, and that relates to the requirement to inform a person who is the subject of an investigation that that has occurred, once it has occurred. The amendment provides a pathway by which the ICAC can go to the court and seek permission not to have to do that.

It is a relatively narrow pathway. I have said in the course of the second reading—and there is another view—that my understanding is that the ICAC would probably suggest that it is something that at a high level could be left to the discretion of the ICAC as to whether it is in the interests of a subject. I will put it this way: a wider discretion just to determine whether that is a good idea or not is one broader way of dealing with this.

The government has elected for an approach that is both formal and narrow in that the ICAC is going to have to approach the court and satisfy the court of some particular, fairly serious and narrow circumstances. What consultation, including feedback from the ICAC, was undertaken by the government? Is the government satisfied that the ICAC's views have been taken into account? Is there anything else that might shed light—for the benefit of the committee—on how we have reached this particular process of exception?

The Hon. B.I. BOYER: I thank the member for Heysen for those questions. Yes, this is a rather complicated part of the proposed changes. Of course, what we have accepted here is that while we do believe there are circumstances in which there is requirement for the ICAC to inform persons who may have been under investigation that those investigations are no longer under way, we are accepting that there may be circumstances in which that should not be the case.

As I think the member for Heysen alluded to, it is the ICAC's view that the discretion to not meet that requirement of the 2021 changes should be broader than the ones that we are proposing in section 39A, but a great deal of consultation has been done. The ICAC has seen a copy of the bill, and there was about 12 months or thereabouts of back and forth between the ICAC and the government around those 2021 changes and what the ICAC thinks should be amended here today. I am also reminded that, should this pass this place and this parliament and come into effect, before it does, further meetings with the ICAC will take place around what the practical application of these changes may be.

The briefest answer I can give to the question from the member for Heysen is that, although we are not proposing to go as far perhaps as the ICAC would wish us to do in terms of a broader ability for it to not provide that communication to persons under investigation if that investigation is no longer underway, we are proposing what is not an insignificant change to the 2021 amendments where, through the application process the member for Heysen referred to regarding the Supreme Court, the ICAC can make an application seeking to lay out grounds for why it believes that is not necessary.

We feel that is a fair compromise, but as I foreshadowed in my second reading contribution and as did the Hon. Kyam Maher in the other place, we are open to further amendments and will watch this very closely. We are not here saying that this is now a closed book, because it is a complex area and we would need to see how it works, but this is still I think nonetheless a not insignificant change that is meeting the ICAC at least part of the way in terms of the changes it is seeking.

Clause passed.

Remaining clauses (4 and 5), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills) (16:12): I move:

That this bill be now read a third time.

Bill read a third time and passed.