Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:34): I move:

That this bill be now read a second time.

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

Leave granted.

This Bill amends the Independent Commissioner Against Corruption Act 2012, the ICAC Act, to address the Government's commitment to address the need for transparent justice in South Australia when investigating serious or systemic maladministration and misconduct in public administration.

In short, the Bill clarifies how the Independent Commissioner Against Corruption Commissioner investigates matters raising potential issues of serious or systemic misconduct and maladministration in public administration and, importantly, will provide the Commissioner with the discretion to hold public hearings into matters. It should be emphasised that the amendments do not affect anything in the ICAC Act relating to investigations into corruption. The Government nor the Commissioner support open hearings into such investigations.

Under the current convoluted scheme, the Commissioner's power to investigate misconduct or maladministration is provided by reference to the Ombudsman Act 1972. The Ombudsman has the powers of a commission as defined in the Royal Commissions Act 1971. However that power is curtailed by section 18(2) which requires investigations to be carried out in private. Because the Commissioner is both the investigator and the decision maker in these types of investigations, persons whose rights, interests or legitimate expectations might be adversely affected must be accorded procedural fairness. Therefore it is crucial that the process be transparent for that to occur, the Commissioner is able to determine when and if an investigation or part of an investigation should be held in public.

This Bill does what the commissioner himself has been requesting for several years. However, the Oakden investigation particularly highlighted the issue of open hearings. On page 16 of the Oakden report, the Commissioner wrote: 'this investigation has firmly reinforced my view that the legislation under which I operate ought to be amended to give me the discretion to conduct investigations of this kind in public'. He went on to state: 'There is a tension between the Act which provides jurisdiction to investigate and the Acts which provide the powers during the investigation….The tensions could be resolved if the ICAC Act were modified to seamlessly include the powers of investigation and reporting in respect of misconduct and maladministration. I have previously proposed to the Government that the powers to investigate such conduct be found by a more direct route than is presently the case. The Government did not accept my proposal. I am hopeful that these issues will be considered again.'

These amendments address the Commissioners comments in a practical and simple way. They remove the requirement for the Commissioner, when dealing with an investigation into matters raising a potential issue of serious or systemic maladministration or misconduct in public administration, to exercise powers of an inquiry agency and set out the powers and functions relating to such investigations in schedule 3A to the ICAC Act. The schedule consolidates the powers and functions available to the Commissioner under the Ombudsman and Royal Commissions Acts, clarifying the manner in which an inquiry is to be heard, the powers available to the Commissioner and ensuring those powers are fit for purpose. In particular, clause 6 of schedule 3A clarifies the extent to which legal professional privilege and public interest immunity are abrogated during a maladministration or misconduct investigation and clause 26 of schedule 3A provides for the Commissioner to report on one or more investigations in such manner as the Commissioner thinks fit. Setting out the powers and functions in this way will ensure that arguments about the scope and nature of investigative powers available to the Commissioner are avoided in future investigations of this nature.

Finally, the Bill includes three amendments intended to improve some operational aspects of the legislation. For example, clause 10 of the Bill will insert new section 39B into the ICAC Act to provide a delegation power, so that if for some reason the Commissioner is unable to conduct an investigation, the Deputy Commissioner or and examiner may head the investigation and report to the Commissioner. The Bill also provides for the person heading the investigation to make non-publication or suppression orders. These changes are necessary for purely practical reasons.

The Commissioner has repeatedly called for these amendments, and the Government has committed to transparent and accountable practices in public administration. This measure clearly demonstrates that commitment.

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 7—Functions

This clause amends the provision specifying the functions of the ICAC to remove references to the ICAC exercising the powers of an inquiry agency and instead refer to the ICAC investigating misconduct and maladministration in public administration.

The provision also makes some amendments that are consequential to allowing public inquiries.

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

This clause removes references to the ICAC exercising the powers of an inquiry agency and replaces them with references to the ICAC investigating misconduct and maladministration in public administration.

6—Repeal of sections 26 and 27

7—Repeal of sections 33 to 36

Clauses 6 and 7 are related to the ICACs new investigatory powers in relation to misconduct and maladministration in public administration. These provisions that currently relate to corruption investigations are able to apply equally to misconduct and maladministration investigations and so are being relocated to a new general Division (see clauses 9 and 10).

8—Substitution of section 36A

This clause substitutes the current section 36A (which allows the ICAC to investigate potential issues of misconduct and maladministration in public administration by exercising the powers of an inquiry agency ie the Ombudsman's powers) with a new provision that applies the proposed Schedule 3A to investigations by the ICAC into potential issues of misconduct and maladministration in public administration.

Proposed new section 36B replicates section 28 of the Ombudsman Act 1972.

9—Heading to Part 4 Division 2 Subdivision 4

This clause substitutes a heading to make Part 4 Division 2 a Division containing general provisions relating to investigations by the ICAC.

10—Insertion of sections 39A to 39F

This clause relocates the provisions deleted by clauses 6 and 7.

11—Amendment of section 42—Reports

This clause deletes a provision that would be inconsistent with the power to hold public inquiries.

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

This clause deletes a provision that required the ICAC to report on the number and general nature of occasions on which the ICAC exercised the powers of an inquiry agency. The requirement to report on investigations by the Commissioner is already contained in subsection (2)(b)(ii) (and this provision will now cover both corruption investigations and misconduct and maladministration investigations).

13—Amendment of section 54—Confidentiality

This clause is consequential to the new provisions on public inquiries.

14—Amendment of section 56—Publication of information and evidence

This clause is consequential to the new provisions on public inquiries.

15—Insertion of Schedule 3A

This clause inserts a new Schedule containing provisions relating to investigations into misconduct and maladministration. The new Schedule contains provisions dealing with the following matters:

the power to conduct a public inquiry

orders that may be made in the course of an investigation into misconduct or maladministration in public administration to prevent undue prejudice or undue hardship to any person, or otherwise in the public interest

rules as to procedure and evidence are disapplied

legal representation for participants in the investigation

limiting claims of legal professional privilege for the Crown and public authorities and claims of public interest immunity

admissibility in evidence of statements or disclosures etc made in an investigation

examination of witnesses (including powers to compel attendance and deal with contempt)

power to require a written statement of information about a specified matter or to require answers to questions

power to require a person to produce a document or thing for the purposes of the investigation

power to enter and inspect any premises or place occupied by a public authority and anything in or on those premises or that place

action that may be taken following an investigation, including the making of findings, recommendations or reports

Schedule 1—Transitional provisions

1—Application of amendments

The transitional provision deals with the replacement of section 36A and the introduction of the new investigation powers.

Debate adjourned on motion of Hon. I.K. Hunter.