Independent Commissioner Against Corruption (Miscellaneous) Amendment Bill

Second Reading

Second reading.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:49): I move:

That this bill be now read a second time.

I seek leave to have the detailed explanation of the bill and clauses inserted in Hansard without my reading it.

Leave granted.

This Bill amends the ICAC Act to further refine and improve its operation. The amendments are in large part a response to requests from the Independent Commissioner Against Corruption (the Commissioner) to address some operational matters. The Bill also addresses the recommendation by the Reviewer appointed under section 46 of the Act to provide a procedure for the making of complaints about abuse of the exercise of the powers of the Commissioner or misconduct by officers of the ICAC.

The Bill provides for provide for complaints to be made to the Reviewer directly and for the Reviewer to investigate complaints relating to alleged abuse of power, impropriety or other forms of misconduct on the part of the Commissioner or employees of the Commissioner or the OPI and other matters if requested to do so by the Attorney-General or the Committee.

In addressing the operational matters raised by the Commissioner the Bill removes the oversight of the Ombudsman by the ICAC, which will reduce the complexity and conflicting outcomes from the current referral process. A matter referred by the ICAC to the Ombudsman will be deemed to be a complaint under the Ombudsman Act 1972 and will be dealt with exclusively by the Ombudsman. To streamline the assessment procedure, the Bill provides for the Office for Public Integrity to assess and refer matters directly to the appropriate Authority. Currently the OPI must, following the assessment of a complaint or report, make a recommendation to the ICAC about referral. In practise this has proved to be an unnecessary and cumbersome exercise. The amendment will streamline the referral and reporting process.

The Bill will also make clear what I understand is already the practice of the ICAC investigators when undertaking a search to secure documents over which a claim of privilege is made. It also provides clarity around the use of information obtained during an investigation under the ICAC Act. In rare circumstances there may be a challenge to the jurisdiction investigation undertaken using the powers under the ICAC Act and it is subsequently determined that the person under investigation was not a public officer at the time of the investigation. Information gathered in good faith that could lead to a prosecution for an offence will be able to be provided to a law enforcement agency. The amendment does not affect the ability of a court to rule such information inadmissible for any other reason.

Other amendments in the Bill to facilitate operational matters and clarify the jurisdiction of the ICAC include allowing for law enforcement officers involved in a joint investigation with ICAC officers to be named on a warrant permitting an investigator to enter and search a place or vehicle and seize items during that search and amending the definition of corruption to encompass the act of lobbying. The Bill will clarify that breaches by Members of Parliament of a Statement of Principles cannot be investigated by the ICAC and that a reference to a Privileges Committee for any misconduct of a Member of Parliament remains the exclusive responsibility of the House. This amendment addresses a recommendation of the Report of the Joint Committee and is supported by the Commissioner.

Finally, the Bill clarifies that the primary object of the Commissioner is to investigate serious or systemic corruption in public administration and to refer serious or systemic misconduct or maladministration in public administration to the relevant body. It does this by amending the Act to redefine the circumstances in which the Commissioner would investigate serious or systemic misconduct or maladministration in public administration and by providing a definition for 'serious or systemic' misconduct or maladministration.

The Bill reflects the Government's intention to ensure that the Act operates as effectively as possible.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Independent Commissioner Against Corruption Act 2012

4—Amendment of section 3—Primary objects

This clause alters the statement of primary objects to reflect the changes to section 7.

5—Amendment of section 4—Interpretation

This clause changes the definition of inquiry agency to remove references to the Commissioner for Public Sector Employment and updates the definition of law enforcement agency. The section is also amended to define what constitutes 'serious or systemic' misconduct or maladministration in public administration.

6—Amendment of section 5—Corruption, misconduct and maladministration

This clause includes offences or attempted offences against the Lobbyists Act 2015 in the concept of corruption in public administration and provides that a statement of principles applicable in relation to the conduct of members of Parliament will not be treated as a code of conduct for the purposes of the statutory concept of misconduct in public administration.

7—Amendment of section 7—Functions

This clause amends the functions of the ICAC to reflect the fact that the ICAC will not be giving directions or guidance to the Ombudsman on referring a matter and specifies limits on the Commissioner's powers to investigate misconduct and maladministration in public administration.

8—Amendment of section 17—Functions and objectives

This clause allows OPI to refer complaints and reports to inquiry agencies, public authorities and public officers, and to give directions or guidance to public authorities, in circumstances approved by the Commissioner.

9—Amendment of section 24—Action that may be taken

This clause is consequential to clause 7.

10—Amendment of section 31—Enter and search powers under warrant

This clause amends section 31 to allow a warrant to be issued authorising a police officer or an investigator to conduct a search and also to allow a Judge of the Supreme Court to issue a warrant in relation to any premises or place. The clause also provides that new Schedule 3 (relating to claims of privilege) will apply to searches.

11—Amendment of section 36—Prosecutions and disciplinary action

These amendments provide that the power to refer a matter to the relevant law enforcement agency or public authority on completing an investigation or during an investigation applies regardless of the subject matter of the investigation and make it clear that the Commissioner can provide both evidence and information to the relevant law enforcement agency or public authority.

12—Amendment of section 36A—Exercise of powers of inquiry agency

This clause makes minor amendments to reflect the amendments in clause 7 and clause 9.

13—Substitution of section 37

Section 37 is substituted to remove provisions relating to oversight by the ICAC of a matter that has been referred to the Ombudsman.

14—Amendment of section 38—Referral to public authority

This clause amends section 38 consequentially to clause 8 and also to limit the Commissioner's power under current subsection (7) (now to be subsection (7a) under the proposed amendments) to situations where a referral of a matter included a requirement that the public authority submit a report or reports in respect of the matter.

15—Amendment of section 42—Reports

This clause broadens the Commissioner's power to report but includes a requirement that a report must not identify any person involved in a particular matter raising potential issues of misconduct or maladministration in public administration that is, or has been, subject to assessment, investigation or referral under the Act unless the person consents to being so identified. The amendment also provides that a report relating to a completed investigation must be provided to the public authority responsible for any public officer to whom the report relates and to the Minister responsible for that public authority (as well as to the Attorney-General and the Parliament).

16—Amendment of section 44—Public authority to assist with compliance by public officers

This clause makes a minor change to simplify the wording of the provision.

17—Amendment of section 45—Commissioner's annual report

This clause is consequential to clause 8.

18—Substitution of section 46

Proposed section 46 requires reviews to be conducted in accordance with new Schedule 4 (see clause 23).

19—Amendment of section 48—Commissioner's website

This clause is consequential to clause 18.

20—Substitution of section 54

This clause substitutes a new provision on confidentiality. The basic rule is that a person who is or has been engaged in the administration of this Act must not disclose information in relation to a matter that is the subject of a complaint, report, assessment, investigation, referral or evaluation under the Act, except as required or authorised by this Act or by the Commissioner. Proposed subsection (2) lists circumstances in which disclosure is authorised. Proposed subsection (3) deals with disclosure by a person who receives information knowing that the information is connected with a matter that is the subject of a complaint, report, assessment, investigation, referral or evaluation under the Act.

21—Amendment of section 56A—Use of evidence or information obtained under Act

This clause clarifies that use that may be made of evidence or information obtained by the lawful exercise of powers under the Act and specifies that evidence or information will be taken to be obtained by a lawful exercise of powers under the Act notwithstanding a jurisdictional error in the exercise of those powers.

22—Amendment of section 59—Evidence

This amendment allows for proof by evidentiary certificate of the requisite suspicion for the purposes of section 5(2) of the Act.

23—Insertion of Schedules 3 and 4

This clause inserts new Schedules as follows:

Schedule 3—Search warrants and privilege

This Schedule makes provision in relation to claims of privilege when search powers are being exercised pursuant to a warrant.

Schedule 4—Reviews

This Schedule provides for the appointment of a reviewer and for the conduct of annual and other reviews in relation to the ICAC and the OPI.

Schedule 1—Related amendments and transitional provisions

Part 1—Amendment of Criminal Law Consolidation Act 1935

1—Amendment of section 237—Definitions

This clause ensures consistency between the concept of a public officer in the Independent Commissioner Against Corruption Act 2012 and the definition of that term for the purposes of offences in Part 7 of the Criminal Law Consolidation Act 1935 (offences of a public nature).

Part 2—Amendment of Judicial Conduct Commissioner Act 2015

2—Insertion of section 29A

This clause ensures that a review under proposed Schedule 4 of the Independent Commissioner Against Corruption Act 2012 (see clause 23) could consider also the conduct of the Judicial Conduct Commissioner if the ICAC were also appointed as the Judicial Conduct Commissioner.

Part 3—Amendment of Ombudsman Act 1972

3—Insertion of section 14B

This clause inserts a new section 14B providing that matters referred to the Ombudsman under the ICAC Act must be dealt with under the Ombudsman Act 1972 as if a complaint had been made under that Act.

Part 4—Transitional provisions

This Part provides transitional provisions.

Debate adjourned on motion of Hon. T.J. Stephens.