Bills

Independent Commissioner Against Corruption (Investigation Powers) No 2 Amendment Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (11:02): Obtained leave and introduced a bill for an act to amend the Independent Commissioner Against Corruption Act 2012. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (11:03): I move:

That this bill be now read a second time.

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 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. Neither 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 1917. 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, and that 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 commissioner's 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 of 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, the bill clarifies the extent to which legal professional privilege and public interest immunity are abrogated during a maladministration or misconduct investigation and 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.

The first version of this bill was introduced in the House of Assembly on 10 May 2018 and passed that house on 30 May 2018. That bill was received in the Legislative Council on 31 May 2018. However, it was subsequently withdrawn and referred to the Crime and Public Integrity Policy Committee for report and recommendations on 26 July 2018. The Legislative Council received the report of the committee on 20 September 2018.

In addition to the above, this version of the bill makes further changes to the ICAC Act in accordance with recommendations made by the committee in its report. The committee's final report contained eight recommendations. The government has determined to accept many of the recommendations of the committee and has reflected this acceptance in the bill before the parliament, such as to:

make clear that unless the commissioner makes a determination to conduct a public inquiry, an investigation into misconduct or maladministration in public administration must be conducted in private;

provide that the commissioner, a public officer or public authority that may be affected by the investigation may apply to the Supreme Court to determine whether the decision to conduct a public inquiry was properly made and make any orders necessary to give effect to the determination;

provide that a witness or other person may apply to the person heading the investigation for the making of an order forbidding the publication or disclosure of a matter, and to include an appeal process where an application is refused;

provide that the person heading an investigation may, if satisfied that special circumstances exist, allow a person to appear at a public inquiry or to make submissions, despite the fact that the person is not required to give evidence;

provide that all persons giving evidence in an examination into serious or systemic maladministration and misconduct in public administration, or persons allowed to appear or make submissions before an examination, are entitled to legal representation;

permit a person to refuse to answer a question, provide information or produce a document only if it would tend to incriminate the person of an offence;

clarify the operation of the clause of the bill relating to legal professional privilege;

include amendments proposed by both the government and the Hon. Mark Parnell MLC in relation to the version of the bill previously before the parliament, including to:

require the commissioner to publish information on a website about why he or she is satisfied it is in the public interest to hold a public inquiry;

to clarify that where a person other than the commissioner is heading an investigation, that person may make findings relating to that investigation and can publish a report setting out those findings and recommendations and to require the reviewer under schedule 4 of the ICAC Act to maintain a website.

However, the government has determined that instead of providing a requirement for the commissioner to provide 21 days' written notice to affected parties of his or her intention to conduct a public inquiry, as recommended by the committee, the commissioner will instead be required to publish a notice, both on a website and in a newspaper circulating generally in the state. While there may be an identifiable witness list at the outset to assist the commissioner to determine the persons affected in advance of the inquiry, by nature an investigation will evolve and other persons will be affected. Therefore, the value of the written notice directed to affected parties must be questioned given the changeable nature of an investigation.

Sensible amendments have been preferred that will require the commissioner to publish information on a website as to why he is satisfied that it is in the public interest to hold a public inquiry and will also require the commissioner to publish such notice in a newspaper circulating generally in the state, so as to capture a wider audience. The bill further requires that the commissioner must state in such notice the subject matter of the inquiry.

The government also firmly opposes the recommendation of the committee to include an amendment that would provide that the bill would not impact on the applicability of any common law right to procedural fairness or natural justice. There is a common law duty to act fairly, according procedural fairness in administrative decisions affecting rights, interests and legitimate expectations, subject only to an express contrary statutory intention. The law is clear that procedural fairness will not be found to be excluded unless parliament has expressed a very clear intention to do so in the statute. There is no such contrary statutory intention in the proposed bill or the act.

The commissioner stated in his evidence to the committee that the requirements of procedural fairness apply to ICAC investigations in relation to misconduct and maladministration and he would regard them as continuing to apply should the act be amended by this bill. In fact, he further stated that should parliament be minded to include such a provision, it would need to be carefully drafted so as not to exclude or narrow the existing common law procedural fairness obligations. This is a point well made.

It is not only unnecessary to make such explicit reference in the act, where there is clearly no statutory intention to exclude procedural fairness, but sets a precedent where questions would be raised where other legislation dealing with inquiries did not include a similar provision. There are examples where similar powers and processes apply without express provision to state that the person conducting the inquiry must afford procedural fairness, such that it would sit uncomfortably to include such express provision here, with the government preferring to rely on well-established principles.

The bill also includes further amendments intended to improve some operational aspects of the legislation. For example, the bill will provide a delegation power, so that if for some reason the commissioner is unable to conduct an investigation, the deputy commissioner or an examiner may head the investigation and report to the commissioner. The bill also provides for the persons heading the investigation to make non-publication or suppression orders. These changes are necessary for purely practical reasons.

The bill further clarifies that where a person other than the commissioner is heading an investigation, that person may make findings relating to that investigation and can publish a report setting out those findings and recommendations. It is necessary because currently the power to make findings lies with only the commissioner.

The commissioner has repeatedly called for amendments to provide for public hearings to be available when investigating serious or systemic maladministration and misconduct in public administration, and the government has committed to transparent and accountable practices in public administration. This measure clearly demonstrates that commitment. I seek leave to have the detailed explanation of the clauses inserted in Hansard without my reading it.

Leave granted.

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 ICAC's 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 section 36A that applies the proposed Schedule 3A to investigations by the ICAC into potential issues of misconduct and maladministration in public administration. In addition, proposed new section 36B provides for applications to the Supreme Court to determine whether the ICAC has jurisdiction to conduct an investigation in respect of a matter raising potential issues of misconduct or maladministration in public administration or to determine whether a decision to conduct a public inquiry was properly made. Proposed section 36C provides for appeals to the Supreme Court from a refusal to make an order forbidding publication or disclosure of matter under proposed Schedule 3A clause 3(1).

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 48—Commissioner's website

This clause requires the Commissioner's website to include information relating to Schedule 4.

14—Amendment of section 54—Confidentiality

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

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

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

16—Amendment of Schedule 4—Reviews

This clause amends Schedule 4 to require the reviewer to maintain a website, to include a mechanism for calling for public submissions prior to an annual review and to specify certain categories of information that must be included in a report on an annual review.

17—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 and requirements to give notice of such an 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

representation for participants in the investigation

dealing with the privilege against self-incrimination, legal professional privilege and 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.