Independent Commission Against Corruption (Conditions of Appointment - Integrity Measures) Amendment Bill

Introduction and First Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Climate, Environment and Water, Minister for Industry, Innovation and Science, Minister for Workforce and Population Strategy) (15:38): Obtained leave and introduced a bill for an act to amend the Independent Commission Against Corruption Act 2012. Read a first time.

Second Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Climate, Environment and Water, Minister for Industry, Innovation and Science, Minister for Workforce and Population Strategy) (15:38): I move:

That this bill be now read a second time.

Today, I introduce the Independent Commission Against Corruption (Conditions of Appointment—Integrity Measures) Amendment Bill 2025. The bill will amend the Independent Commission Against Corruption Act 2012 to provide for the entitlement of the Independent Commissioner Against Corruption to a pension that closely aligns with the judges' pension entitlements under the Judges' Pensions Act 1971 and fix the salary of the ICAC commissioner to that of a puisne judge of the Supreme Court.

On 12 December 2024, Her Excellency the Governor and Executive Council appointed Ms Emma Townsend as the Independent Commissioner Against Corruption for a term of five years, commencing on 3 February 2025 and expiring on 2 February 2030, pursuant to section 8 of the ICAC Act. Prior to her appointment as the commissioner, Ms Townsend served as the Director of the Office for Public Integrity and before that as a prosecutor in the Office of the Director of Public Prosecutions. Ms Townsend is exceptionally well-qualified to serve in the important role of Independent Commissioner Against Corruption, and I am sure all members will join me in wishing her well as she takes up that task. However, Ms Townsend is the first person to hold this role who is not a former judge of the Supreme Court of South Australia.

An analysis of ICAC commissioner equivalent roles around the country has shown that 50 per cent of these are held by former judges, with the other 50 per cent comprising other backgrounds. While the appointment of Ms Townsend therefore marks a departure from practice to date in South Australia in appointing former Supreme Court judges as ICAC commissioner, it is in step with other jurisdictions. In appointing someone who is not a retired judge and therefore not otherwise entitled to the judicial pension, the government considered that it was important to enshrine in the legislation an entitlement for the commissioner to receive a pension that closely aligns with the entitlement for judicial officers under the Judges' Pensions Act.

This entitlement is intended as an integrity measure to reflect the independence of the commissioner and acknowledge that previous commissioners have been similarly entitled to a pension by virtue of their status as former judges of the Supreme Court. Accordingly, the bill amends the ICAC Act to provide that the ICAC commissioner is entitled to a pension by applying the provisions of the Judges' Pensions Act 1971.

To reflect the initial maximum fixed term of seven years and maximum total appointment of 10 years of an ICAC commissioner under the ICAC Act, the new commissioner's pension will apply as follows. The pension entitlement is to accrue after five years of service. After five years of service, there is an entitlement to a pension of 50 per cent of salary, with incremental progression of 1 per cent for each additional six months of service up to 60 per cent at a maximum 10 years of service. A period as acting commissioner under section 11 of the ICAC Act is to count as service for the purposes of calculating the pension entitlement. The pension entitlement is not to be paid out until the commissioner reaches 60 years of age, consistent with how the Judges' Pensions Act applies to judges.

Spouse or domestic partner entitlements and child entitlements are to apply as for judges under the Judges' Pensions Act, but with any necessary modification to the application of that act to tailor it to the bespoke accrual and qualifying periods for the commissioner pension. For example, this will entail a different calculation of a notional pension under the Judges' Pensions Act, since there is no relevant retirement age in the case of an ICAC commissioner. If the commissioner is suspended under section 8(10) of the ICAC Act, the time under suspension is not to count as service for the purposes of the pension.

The pension is not payable, unless the Governor otherwise dictates, if the commissioner is removed from office by the Governor. If a commissioner is later appointed as a judge, any pension payments from their appointment as commissioner cease upon the appointment as a judge. However, previous service as commissioner is to be counted as judicial service for the purposes of the judge's pension, and if a former commissioner is appointed to a judicial office with a salary less than that of a puisne judge of the Supreme Court they will be entitled to the more generous pension at the salary of Supreme Court judge.

There is a relevant precedent for applying the Judges' Pensions Act to other non-judicial statutory office holders, including with modifications. Pursuant to section 10 of the Solicitor-General Act 1972, the Judges' Pensions Act applies to the Solicitor-General as if they were a judge under the act and their service was judicial service. The Judges' Pensions Act may also be applied by the Governor to the Director of Public Prosecutions or the Judicial Conduct Commissioner by instrument in writing at the time of appointment under the Director of Public Prosecutions Act 1991 or the Judicial Conduct Commissioner Act 2015 respectively.

The relevant provisions in those acts allow conditions or modifications to the application of the Judges' Pensions Act as it applies to those officers. While this is a reasonably minor reform, the government considers it an important integrity measure which will safeguard the independence of the Independent Commissioner Against Corruption. I commend the bill to members. I also 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.

Part 2—Amendment of Independent Commission Against Corruption Act 2012

3—Amendment of section 8—Commissioner

This clause inserts new subsection (1a) which entitles the Commissioner to salary and allowances at the rates applicable to a Puisne Judge of the General Division of the Supreme Court.

4—Insertion of section 9A

This clause inserts new section 9A as follows:

9A—Pension rights—Commissioner

This section applies the Judges' Pensions Act 1971 to and in relation to the Commissioner as if the Commissioner were a Judge as defined in that Act and service as the Commissioner were judicial service as defined in that Act. The section establishes that only a person who has completed 5 years of service as Commissioner is entitled to a pension under the Judges' Pensions Act 1971 by virtue of this section and makes provisions in relation to the rate of the pension and when the pension becomes payable. The section also provides that application of the Judges' Pensions Act 1971 to the Commissioner operates subject to modifications to that Act specified by the Governor by instrument in writing or necessary or convenient to give effect to section 9A.

5—Amendment of section 10—Pension rights

This clause makes consequential amendments.

Schedule 1—Transitional provision

1—Transitional provision

This clause sets out a transitional provision which provides that new section 9A only applies in relation to a person holding or acting in the office of Commissioner immediately prior to the commencement of that section or a person appointed to be the Commissioner on or after the commencement of that section. In the case of a person holding or acting in the office of Commissioner immediately before the commencement of section 9A, the section will be taken to have applied from the day on which the person was appointed to be, or to act as, the Commissioner.

Debate adjourned on motion of Hon. D.G. Pisoni.