Parliamentary Committees

Crime and Public Integrity Policy Committee: Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill

The Hon. D.G.E. HOOD (15:59): I move:

That the report of the committee, entitled Independent Commissioner Against Corruption (Investigative Powers) Amendment Bill, be noted.

As a brief summary of the basis for this inquiry, I note that on 10 May 2018 the Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill, which I will refer to as 'the biII', was introduced in the other place and passed on 30 May without amendment.

Following debate, on 26 July 2018 it was resolved by this house to withdraw the bill and to refer it to the Crime and Public Integrity Policy Committee for report and recommendations. It was further resolved that it be an instruction to the committee to report by no later than 4 September this year. The House of Assembly concurred with that instruction; however, it was later amended by further resolution of this house to require the committee to report by no later than 20 September. The House of Assembly again concurred.

The bill seeks to remove the requirement for the Independent Commissioner Against Corruption, known as ICAC, to conduct investigations into potential issues of serious or systemic misconduct or maladministration in public administration pursuant to the powers of an inquiry agency under the ICAC Act, which is currently defined to be the Ombudsman. The bill further seeks to provide for the ICAC to conduct such inquiries pursuant to powers to be set out by way of insertion of proposed schedule 3A into the ICAC Act. The commissioner is to be provided with the power, if satisfied that it is in the public interest to do so, to conduct public inquiries.

It is also proposed that schedule 3A is to set out the manner in which the inquiries are to be conducted and the matters of which the commissioner must be satisfied in respect of what is deemed to be public interest.

On Saturday 11 August 2018, the committee advertised the inquiry in The Advertiser, The Australian, and TheAustralian Financial Review. Correspondence was sent to 17 individuals and organisations inviting submissions to the inquiry. The committee received five submissions to the inquiry, which can be accessed via the committee's web page. Six public hearings were held by the committee, and the full transcripts of the evidence taken are also published on our web page.

The submissions and evidence raised 19 key issues, as identified by the committee, and each of those matters are addressed separately in the report, which has been tabled in this place. The committee noted that not all issues raised in the submissions and evidence are addressed directly by the bill and that not all issues raised are subject to findings or recommendations.

The committee considered that it may be more appropriate to address a number of issues, particularly those not addressed by the bill, at a later date and with the benefit of having considered further evidence. This was also considered appropriate given the limited time available to the committee in which to report in respect of the inquiry.

As a result of the submissions and evidence received, the committee made eight recommendations. I shall discuss each of them briefly. The committee sought to balance the rights of the people involved in such investigations with the capacity of the commissioner to conduct them effectively.

Recommendation one recommended that the bill be amended to state expressly that an inquiry into potential issues of serious or systemic misconduct or maladministration in public administration is to be conducted in private until it is determined that it is to be conducted in public. It was recognised that, although the bill as drafted was likely to have that effect in any case, it was preferred out of a desire for completeness to set out an express statement of this intent.

Recommendation two proposed amendments to the bill to require the commissioner, where it is intended to conduct a public hearing, to give written notification of his intention to persons that may reasonably be required to give evidence to the inquiry or any person whose rights or interests may be affected by the evidence given. It was recommended that the notice must set out the reasons for the decision to conduct the inquiry in public and must be given no later than 21 days prior to the commencement of the inquiry. The committee also recommended that, where the power of the commissioner to conduct a public inquiry is in question, specified persons may apply to the Supreme Court to determine the question.

The committee's third recommendation proposed that the provisions of the bill providing for the making of orders to suppress the publication of evidence be amended to expressly provide that applications for such orders can be made and that where any decision in relation to such orders is in question applications may also be made to the Supreme Court to determine the question.

Recommendation four recommended amending the bill to provide for persons to be entitled to legal representation during examinations, whether they be conducted in public or in private. The committee also recommended that a discretion be provided so that persons who are not giving evidence at an examination, whose rights or interests may be affected by evidence given, be entitled to appear before the examination and to be legally represented. Legal representatives should be entitled to be heard by the commissioner or the person heading the investigation regarding the decisions and processes of the investigation.

The committee's fifth recommendation proposed to amend the bill to provide that any persons required to give evidence to an examination or to produce in the course of an examination any statement, document, or other thing be afforded the privilege against self-incrimination. It was accepted that the privilege is a fundamental common law right and the committee particularly considered that it was not appropriate to abrogate the privilege in respect of inquiries into potential issues of misconduct or maladministration.

Recommendation six recommended that clause 4 of the proposed schedule 3A be amended to state clearly that the clause is not intended to displace any right to procedural fairness or natural justice. The clause proposed that a person heading an investigation into matters addressed by the bill is not to be bound by the rules or practice of any court or tribunal as to procedure or evidence. Out of an abundance of caution, the committee considered that an amendment of this nature would bring beyond doubt the applicability of these common law rights.

The seventh recommendation suggested amendment to aspects of clause 6 to proposed schedule 3A, purely for the sake of clarity. The clause proposes to set out the applicability of legal professional privilege in relation to investigations, and the committee did not take issue with the apparent intent of the clause. It was, however, considered to be insufficiently clear, and may benefit from rewording.

The final recommendation of the committee provided its support for the proposed amendments to the bill as filed by the Treasurer, the Hon. Robert Lucas, subject to consideration of the recommendations of the committee, and also the amendments filed by the Hon Mr Parnell.

In conclusion, the committee would like to thank its executive officer, Mr Ben Cranwell, who I must say did an outstanding job in a very limited amount of time that we had, including meeting at unusual times for a parliamentary committee such as 8am commencements. He certainly provided great assistance to the committee in bringing this inquiry to a conclusion in the time available.

I would also like to thank the other members of the committee for their contributions to the inquiry. It was a lot of work done in a fairly short time but, in particular, the Hon Justin Hanson; the Hon, Frank Pangallo; the member for West Torrens, the Hon Tom Koutsantonis; the member for Kavel, Mr Dan Cregan; the member for Narungga, Mr Fraser Ellis; and a former member of the committee, the member for MacKillop, Mr Nick McBride. Each member made a valuable contribution to deliberations of the committee and they have my personal thanks. I commend the report to the council.

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