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

Second Reading

Adjourned debate on second reading.

(Continued from 12 February 2019.)

The Hon. J.A. DARLEY (12:18): I rise to speak on the Independent Commissioner Against Corruption (Investigation Powers) No. 2 Amendment Bill. The bill follows another similar bill that was introduced by the government last year. The opposition had a number of questions about the bill and moved to refer the bill to a committee for further investigation. This was done and the final report made a number of recommendations. The government have accepted most of these recommendations and have included these changes to produce this new bill.

The key aspect of this bill is to give the commissioner the discretion to hold public inquiries for matters relating to misconduct and maladministration. It does not concern corruption matters. Investigations regarding corruption will not be able to be held in public under this bill. The commissioner must be convinced that there is public interest to hold the inquiry in public. I support the idea of allowing the ICAC to hold public inquiries and have done so for a number of years, ever since the commissioner publicly called for the power to hold public inquiries. I commend the work the government did in opposition on this matter but also the work of the Hon. Dennis Hood.

The secrecy provisions in South Australia's ICAC Act are amongst the strictest in the country, and I would have hoped that members in this place take notice of what the commissioner is asking for in terms of legislative reform. After all, the Hon. Bruce Lander is best placed to be able to advise the parliament on which parts of the act are working well and which parts need change and why.

There has been indication previously that, if he had had the ability to hold public inquiries, he would have elected to do so when investigating matters such as the Oakden nursing home scandal and the sale of state-owned land at Gillman. There was clearly a lot of public interest in these matters. Whilst I hope that we will never experience similar misconduct or maladministration again, I suspect I would have rose-coloured lenses on if I believed this would actually be reality.

The interstate open ICAC investigations have exposed alleged corruption matters concerning MPs and senior public officials. In some cases, these have led to criminal charges. Clearly, when elected officials are concerned, there is a public interest in these matters. This bill seemingly fulfils the government's election commitment to move a bill to allow the ICAC to hold public hearings for matters concerning misconduct and maladministration. However, it should be noted that the current commissioner, the Hon. Bruce Lander QC, has indicated that, should the bill pass in its current format unamended, the provisions in the bill would mean he is unlikely to ever hold a public inquiry. As such, after consultation with the commissioner, I have made a number of amendments to the bill.

The bill outlines that parties affected by the commissioner's decision may appeal to the Supreme Court to determine whether the commissioner's decision to hold a public inquiry was properly made. Affected persons can also apply to the person heading the investigation to not disclose or publish information. If the person heading the investigation refuses, this can be appealed to the Supreme Court. The commissioner has raised a concern with these parts, as it may mean that parties that are affected by an open investigation may use the court process to frustrate and delay the investigation.

There is also concern that the commissioner may need to disclose information on which the investigation is being relied upon as part of the court process. In effect, this would render the investigation useless. Having such provisions would seriously make the commissioner reconsider having open investigations. If appeals to the court are made, the process would likely mean that any investigation would be fruitless, and therefore the commissioner would rarely opt to hold an open investigation. In the words of the commissioner, these changes would only give the illusion of open investigations rather than practically allowing for open investigations to occur.

Similarly, the bill requires the commissioner to advise on their website and in a newspaper that they intend to hold a public inquiry. This notice needs to be published 21 days in advance of the commencement of the public inquiry and will need to contain information regarding the subject of the inquiry and why they believe it is in the public interest to conduct the investigation in public.

The commissioner has raised concerns that some of the information that is required to be published will interfere with the investigation, as information that is being relied upon for the investigation will be disclosed. As such, I have filed an amendment, which will give the commissioner the discretion to not disclose certain information if they believe it will prejudice the investigation. As mentioned before, I have moved these amendments in consultation and on the recommendation of the ICAC commissioner. It will not make the bill perfect, but it will go some way to address the concerns he has raised and at least provide a workable framework for public hearings.

In a briefing on this bill earlier this week, the commissioner made it very clear that, if the bill were to be passed unamended, the whole purpose of the bill—that is, to provide for public hearings—would not be met because he would not be comfortable holding public hearings under these terms. The commissioner went one step further and said, if the opposition's amendments to the bill were to pass, it would severely hinder his ability to conduct investigations privately, too, therefore rendering his office largely ineffective.

As such, I indicate I will not be supporting the opposition's amendments and urge my colleagues to support my amendments to allow the commissioner to do what is intended by this bill—to hold public hearings. I support the second reading of the bill.

The Hon. M.C. PARNELL (12:25): I rise to support the second reading of this bill, which amongst other things seeks to implement the government's commitment to providing the ICAC commissioner with the power to hold public hearings in certain circumstances in relation to maladministration or misconduct.

When this bill first came to us last year, the Greens supported the option for open hearings. However, our support was not absolute. I stated at the time that with increased power and responsibility comes the need for increased accountability. I moved a number of amendments in relation to accountability, and other members did likewise. In negotiations around that first bill it became clear that there was a majority of the Legislative Council that wanted to see the bill more closely examined by a parliamentary committee that had the power to hear from and question witnesses.

If members recall, back in August last year there was a lot of media interest in this issue. We had competing claims among lawyers and other stakeholders as to the merits of the bill and even more fundamental questions about the way ICAC operates under its current laws, let alone any expanded powers. Getting these divergent voices into the room made a lot of sense to me and, while I am not personally a member of the Crime and Public Integrity Policy Committee, I knew that all of us here would have the benefit of the submissions, testimony and, ultimately, the findings and recommendations of that committee.

At the conclusion of that process the government has come back to us with a revised bill, the so-called No. 2 bill. This is where it gets interesting, because the commissioner has made some public statements along the lines that, unless it was amended, he would probably not hold any public hearings. He did not think that the new Liberal bill was workable. Then we have a large number of Labor amendments, and the commissioner came out saying he did not like those either. So neither the tabled bill nor the Labor amendments were the preferred option of the commissioner, with the likely outcome being that there would not be public hearings, at least during the tenure of the incumbent commissioner. In summary, the preferred position of the two major parties was not the preferred position of the commissioner.

Then we have further amendments moved by the Hon. John Darley. These amendments effectively reinstate, in part, the situation that applied in the original No. 1 bill in 2018—in other words, no opportunity to appeal against the commissioner's decision to hold a public hearing. The commissioner has said that that is his preferred model. The Greens' position is that we maintain our original position that the commissioner should be able to hold public hearings into serious or systemic misconduct or maladministration in certain circumstances and subject to appropriate checks and balances in relation to basic legal rights and human rights.

So, depending on how other members in this chamber vote, the final result may be that no public hearings are held, at least under the tenure of the current commissioner, but if that is the situation, well so be it. As the Greens said last year, the ability to hold public hearings should not be unconstrained.

If it turns out that, as a result of the passage of this No. 2 bill as amended, as I believe it is likely to be, there are no public hearings, then I would like the government to revisit their decision in the last budget to allocate an additional $15 million to the ICAC to facilitate public hearings. If there are not to be any then they do not need that money, but certainly others do. We know that there are other crucial legal services that are being starved of funds. An additional investment of $15 million into community legal centres or the Legal Services Commission would go a long way to meet the unmet need of disadvantaged people in the community for legal services.

We know from the Productivity Commission and other reports in recent years that community legal centres are incredibly efficient and they return far more value to the community than it costs to fund them. Another possible outcome of this bill is that the Ombudsman's office picks up more work, particularly in relation to maladministration and misconduct. If that is the case, then the Ombudsman will require additional funding as well.

I would like to thank the commissioner and also the Attorney-General's staff for providing briefings on this bill. I would like to thank the Law Society for their submission, but I would also like to thank the members of the Crime and Public Integrity Policy Committee for their work in analysing what is a very complex area of law. I made a submission to that inquiry basically urging them to support two amendments that I had put up to the No. 1 bill. Those went to the community's access to information, the right to know. I am pleased to say that both my amendments were accepted. They are included in the government's bill. I do not have any additional amendments to move in the name of the Greens this time around.

I expect the committee stage of this bill will take a little while. There are very complex legal issues to work through, so I am not going to set out now the exact position of the Greens on each one of, I think, over 30 amendments altogether, but we will do that when we get into committee. At this stage, I just want to say that the Greens support the second reading of the bill and we look forward to the committee stage.

The Hon. C. BONAROS (12:31): I rise to speak in support of the Independent Commissioner Against Corruption (Investigation Powers) No. 2 Amendment Bill 2018 second reading. SA-Best strongly believes that to continue to deny the public access to hearings investigating serious or systemic misconduct and maladministration would be a travesty and not in the public interest or, indeed, the interests of justice.

We have a criminal and civil justice system built on the principle that justice should not only be done but be seen to be done by subjecting legal proceedings to public scrutiny. The ICAC, while not a court, should also be able to hold fair and public investigative hearings before a competent, independent commissioner. As identified by Commissioner Lander, open, transparent, public hearings can provide a higher level of procedural fairness and accountability. Indeed, it was SA-Best's position at the last election to allow public hearings to occur, where appropriate.

The second version of the ICAC bill to come before us seeks to strike a balance between an extension of ICAC's powers to conduct public hearings, with additional protections and rights for those being investigated. On a landmark day—28 February 2018 to be precise—Commissioner Lander QC handed down his explosive and extensive report into the shameful Oakden aged-care scandal. We know that this report contributed in no small part to the federal government's decision to hold a Royal Commission into Aged Care Quality and Safety and chose Adelaide as its base.

We also know that private investigations conducted by the ICAC expose just the tip of the iceberg in regard to serious and systemic misconduct and maladministration in respect of the conduct of departmental staff and politicians, as well as the state facility and its staff. Many took extraordinary steps to try to prevent the private ICAC investigation into Oakden from exposing any wrongdoing.

The watershed moment for Commissioner Lander QC regarding the need for open hearings was not only the Oakden aged-care scandal investigation but also, of course, the Gillman land deal. Both investigations involved senior cabinet ministers and former MPs being cross-examined and, in the commissioner's view, found to be wanting. Let us not forget Commissioner Lander's words with respect to those who had responsibility for what occurred at the Oakden aged-care facility, and I quote:

The extent to which senior persons in positions of authority outside of the Oakden Facility did not know about what was occurring at the facility was breathtaking.

One might ask rhetorically how, in a modern society, an arm of government charged with caring for some of our most vulnerable citizens could provide such abysmal care over such an extended period of time without intervention. However, the evidence I have received makes it quite clear that, to a large extent, what was occurring at the Oakden facility was unknown to ministers and chief executives.

To me, that is astonishing. They ought to have known.

Nevertheless, each Minister who had responsibility for the Oakden facility is responsible for its failures.

Powerful, disturbing and damning words, and many of us could not agree with them more. Commissioner Lander found the former minister's claims of her involvement in uncovering the shameful goings-on at the Oakden aged-care facility to be inflated and self-serving. The commissioner said that the former minister had tried to take credit for decisions made by others and to exculpate herself from any responsibility. Commissioner Lander was particularly critical of the former minister's behaviour whilst under questioning and provided details of that behaviour.

However—and this is where we get to the nub of the issue—as the hearings were conducted in private, the public and the media were unable to witness such behaviour. Indeed, we cannot really form our own views on that behaviour because we were not there and we could not witness it for ourselves. We are left to shape our views in the context of what the commissioner has expressed in his report. I am not suggesting by any stretch that we should be questioning that, but there is a different level of transparency that comes with public hearings which we did not have the benefit of.

This is a question that I put to the commissioner in one of our briefings with him, in terms of how someone may conduct themselves in a private versus a public hearing. I think it is fair to say that the commissioner agreed with me when I asked whether had the hearings in the Oakden case been conducted in public it would have been unlikely that certain witnesses would have behaved in the way that they did.

We know that the only person who took positive action upon becoming aware of what was really occurring at Oakden, according to the commissioner, was the former chief executive officer of the Northern Adelaide Local Health Network, Ms Jackie Hanson. It was shocking evidence emanating from the Gillman and Oakden inquiries that sparked Commissioner Lander to make a recommendation to the state government to allow the commission to hold public hearings.

That was, I should add, at odds with the previous advice we had all received from the commissioner himself in relation to the first iteration of this bill. Those two cases certainly highlighted where we have come and the need for those open hearings. In certain circumstances, when it is in the public interest to do so, it is essential for public hearings to ensure maximum public accountability and transparency, such that we now have the bill before us.

Labor was keen to avoid open hearings in the Oakden and Gillman investigations. So keen were they that the former premier, Jay Weatherill, maintained during the 2018 election that he still 'respectfully disagreed' with Commissioner Lander about the need to hold public transparent maladministration inquiries, a need the commissioner went out of his way to emphatically re-emphasise in his Oakden report.

However, since the election, I think it is fair to say the opposition has signalled that it is willing to support the change to allow public hearings to occur, again, in certain circumstances. I note on that point that the opposition has filed extensive amendments to the bill. SA-Best sees the benefit of some of those amendments, but rejects those that we would consider as only serving to make public hearings unworkable and, indeed, an impossibility. We will have more to say about that and the Labor amendments during the committee stage of the bill.

There is a fine line between balancing the investigative powers of ICAC and the public interest and the impact that public hearings can have on the reputation, careers and lives of those being investigated and their families, especially when it is found that there is no case to answer. This is, again, something that I discussed with Commissioner Lander in the context of my previous comments about how somebody conducts themselves in private versus how they may conduct themselves in public.

We need to make sure that the ICAC accords individuals with proper procedural fairness. We need to be clear that the ICAC is not a court. It is an investigative body, and we need to have adequate provisions in this bill so that it does not become investigator, judge, jury or executioner. The ICAC is a body that has extraordinary coercive powers to investigate serious or systemic misconduct, maladministration and corruption. We need to ensure that ICAC acts with the very highest integrity and conduct in all the matters it investigates, whether by public or private hearings.

Public hearings are an important tool in exposing corruption: they must be used carefully and where they are in the public interest. A public inquiry process can also increase the public's confidence, of course, in the integrity of investigations, and would have been of great benefit in the case of the Oakden inquiry particularly.

As politicians, I am sure everyone will agree, our integrity is nothing without transparency. The shame of what occurred with the Oakden and Gillman scandals has proved that, and I echo many of the sentiments just expressed by the Hon. Mark Parnell, especially around the fact that with those public hearings—something, again, that we support unequivocally—comes a greater need for transparency.

In closing, I, too, would like to thank the committee for its inquiry and the Attorney-General and the commissioner and their staff for their briefings. We need to acknowledge that we have referred this bill off to the inquiry, we have asked for them to look at it, and we cannot now ignore the outcomes of that inquiry, so they will need to be taken into consideration during the context of this debate. It is not simply a matter of saying that we do not like the inquiry's outcomes, that we will go back to bill No.1, or whatever the case may be. We have given them a job, and we need to accept that they have done the work and look at those findings closely, and look at the amendments, which indeed reflect those findings, in this place during the committee stage.

I conclude by noting that I will also be moving an amendment to the bill, seeking to insert new clause 15A, which contains amendments to this bill to align with those amendments that were successfully passed in the Public Interest Disclosure Bill 2018. With those words, I support the second reading of the bill.

The Hon. F. PANGALLO (12:41): I rise to speak in support of the Independent Commissioner Against Corruption (Investigation Powers) No. 2 Amendment Bill 2018. It is my view that the bill has benefited considerably from referral to the Crime and Public Integrity Policy Committee, of which I am a member, and which reported to the Legislative Council on 20 September 2018. The committee was well informed by the submissions we received from a wide range of experts, including the Law Society of South Australia, the South Australian Bar Association, the Law Council of Australia, the ICAC commissioner (the independent reviewer), staff, the Ombudsman, private law firms and legal practitioners.

It has always been SA-Best's position, like that of the Marshall government, to amend the ICAC Act to provide for public hearings, but we need to make sure that we strike the right balance between increased transparency and accountability on the one hand and individual rights and protections on the other.

I commend the government for moving quickly to fulfil its election promise to introduce these important reforms to ensure that ICAC can effectively investigate allegations of serious or systemic maladministration, misconduct and corruption in public administration, ensure that ICAC exercises its powers with proper consideration for individual protections, hold our public sector to account and build public trust in government.

Under South Australia's current secretive ICAC laws, all serious or systemic maladministration and misconduct inquiries must be and have been held as closed hearings and covert investigations. It is important to note that the bill has no impact on investigations into allegations of corruption in public administration. Corruption investigations will continue to be conducted in camera. SA-Best believes that this is entirely appropriate. We agree with Commissioner Lander's view that corruption investigations can require covert actions that should not be disclosed during the process. Any resultant prosecution is, of course, handled by the DPP.

While anti-corruption commissioners across Australia have long recognised the power of public misconduct and maladministration hearings to build public confidence in anti-corruption bodies and the integrity of public administration, we remained the only state whose ICAC was unable to hold public hearings. Commissioner Lander has called for ICAC to have the discretion to hold public hearings to provide a more transparent, timely and accessible environment for our anti-corruption commission to expose serious or systemic misconduct and maladministration. This was not always the commissioner's view but his experiences with the Oakden and Gillman investigations in particular proved the value of public hearings.

This bill gives the ICAC commissioner the discretion to conduct public hearings into serious or systemic maladministration and misconduct where the commissioner can demonstrate that it is in the public interest to do so. Two bodies are charged with the oversight of the ICAC commissioner in the exercise of these powers: the Supreme Court and this parliament.

It is therefore incumbent on us to ensure that the bill provides appropriate oversight of ICAC. The bill incorporates a range of safeguards to give the public confidence that ICAC does not operate beyond its extraordinary coercive powers. Commissioner Lander has made it clear that he wants to retain his coercive powers and discretion to conduct public and private investigations as he sees fit; but as he himself has noted, we are all subject to the law.

In relation to private investigations, ICAC currently has all the powers of a royal commission to investigate serious or systemic maladministration. Where ICAC considers that it is in the public interest to hold a public investigation there will be checks and balances designed to protect the rights of those being investigated, including the ability to appeal to the Supreme Court about the determination to hold a public investigation and questions of jurisdiction.

SA-Best agrees with the South Australian Bar Association and the Law Society of South Australia that it is crucial that comprehensive oversight of ICAC is legislated. An ICAC investigation, especially if by way of public hearings, has the potential to unduly damage a person's reputation and cause them significant harm. A public servant in a public hearing may be identified and named and then found to have no case to answer. We need to remember that a cornerstone of our justice system is the presumption of innocence, as is the right to not self-incriminate. These are preserved in this bill. The right to be represented by a lawyer in a public or private hearing is clarified. Non-publication or suppression orders are also included for practical reasons.

To find examples that illustrate the need for these checks and balances we need look no further than recent events involving ICAC here in South Australia and interstate. In New South Wales former Liberal MP Chris Spence has spoken out about how just being named in the ICAC inquiry was effectively the end of his political career, despite the investigation eventually not proceeding and the Crown Solicitor finding that ICAC had been acting outside its jurisdiction. He described the experience as putting his family through hell.

In February, the 2017 convictions of former New South Wales Labor minister Ian Macdonald and a friend, a former union boss John Maitland, for misconduct of public office involving the granting of a mining lease, were quashed and a retrial ordered. Macdonald was serving a 10-year gaol term, while Maitland was serving six years. Macdonald has called for an immediate inquiry into the way ICAC conducted itself during its investigation, and others.

In South Australia we had the case of Michael King, who was facing charges of failing to act honestly as a public servant following an ICAC investigation. Magistrate McLeod found that warrants issued by the ICAC commissioner were invalid; hence the evidence obtained was inadmissible. The committee and indeed Chief Justice Chris Kourakis were astonished that the commissioner commented on the specific case, noting that he did not agree with the magistrate's decision. This matter is now subject to appeal. As Magistrate McLeod responded, public confidence in the administration of justice comes through due process and that the defendant in any trial must be confident about the integrity of the process.

In another alarming South Australian example, the BioSA chief executive, Jurgen Michealis, was acquitted on charges of abuse of public office. Prosecutor Robyn Richardson commented prior to the court's decision that ICAC made the arrest without obtaining any opinion from the DPP office. Counsel for Mr Michaelis expressed frustration that their client had been on continuing bail for months, unable to work, with his name all over the papers.

In another recent case against two SAPOL officers, the magistrate ruled that the prosecution could not rely on evidentiary materials produced as part of another separate investigation. This case illustrates the importance of the protections in this bill that prevent ICAC materials being used in other civil and criminal jurisdictions.

As Commissioner Lander told the Crime and Public Integrity Policy Committee recently, ICAC is not a court that determines guilt or innocence. However, it has extraordinary powers to investigate that makes it critical to provide the necessary safeguards against ICAC becoming a 'star chamber', as we have seen happen in other jurisdictions like New South Wales. We do not see the legal protections and safeguards in this bill as a nuisance or a means of frustrating an investigation; we see them as essential counterbalances.

In addition to these provisions, the bill has some other equally important work to do to improve the functioning of ICAC. The bill clarifies the commissioner's powers, resolving the tension between the ICAC Act, which provides jurisdiction to investigate, and the Ombudsman Act and the Royal Commissions Act. The bill still provides the commissioner with the power to compel the production of documents that could otherwise be subject to privilege or public interest immunity, including being able to obtain confidential cabinet documents if certain stringent conditions are met. These provisions are much broader than section 21 of the Ombudsman Act, which was an issue during the Oakden inquiry and used by the former Weatherill Labor government to withhold cabinet consideration about what happened at Oakden.

Finally, the bill also provides a sensible administrative delegation power to the deputy commissioner and/or examiner to conduct an investigation in the event the commissioner is unable to do so. However, we support the Labor amendment that all public hearings are conducted by the commissioner as an additional safeguard in more publicised investigations. As the current federal debate about establishing an ICAC-type commission, led by our federal Centre Alliance colleagues, has highlighted, serious or systemic misconduct, maladministration and corruption need to be exposed to the disinfecting light of day.

ICAC is a body that has extensive powers to investigate serious or systemic misconduct, maladministration and corruption. This bill expands on those powers with a new discretion to conduct public hearings into serious or systemic misconduct and maladministration. As a counterbalance to ICAC's extraordinarily broad powers, this bill must have the appropriate safeguards to make sure that there are the necessary checks and balances on ICAC to give the public confidence that ICAC conducts its investigations in a transparent, accountable and procedurally fair way.

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

Sitting suspended from 12:54 to 14:15.