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

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. R.I. LUCAS (Treasurer) (16:17): I rise on behalf of the government to thank honourable members who have made a contribution to the second reading of the ICAC bill. This has had a fairly long history, upon which I do not intend to further expand, but I do wish to make some comments at the close of the second reading debate.

Whilst in opposition, on at least a couple of occasions I put my views in relation to the operations of the ICAC in South Australia on the public record. As you would know, Mr President, my views were plainly expressed at the time and are part of the public record. Obviously now, as a member of a collective cabinet and government, I will continue to discuss the issues as they relate to the ICAC within the confines of the cabinet process. I bring that perspective to this debate today.

What I will say is that I have always been a very passionate supporter of the need for an ICAC or a corruption fighting body, a body devoted to fighting corruption in our jurisdiction, and that remains my view. I think it is fair to say that the former Labor government (the current Labor opposition) has not been, over the passage of time at varying stages, a forceful or strong supporter of, first, the existence of an ICAC and in more latter times in terms of the current operations of the ICAC.

As we are about to enter the committee stage of this particular debate, I think it is important for crossbench members and in particular newer crossbench members to view the very significant amendments being moved by the Leader of the Opposition within that particular prism. That is, that the Labor Party, the former Labor government, has come from a background, firstly, of not supporting an ICAC in South Australia at all and have continued to raise significant questions about the operations, firstly, of the prospect of public hearings for ICAC, and I think some of the amendments need to be closely scrutinised given that that has been their perspective.

When one looks at the evidence from the commissioner, which he has made available publicly, I think it is a salutary lesson or a warning that perhaps some of the amendments the Labor opposition are moving are, in essence, part of reverting to type—if I can put it that way—in terms of trying to hamstring the operations of the ICAC in South Australia.

To that end I want to refer to a letter—and I understand a similar letter, although I have not seen it, was sent to the Leader of the Opposition after he tabled his amendments—that was sent to the Attorney-General on 19 February 2019 from the commissioner. It is a very long letter and I do not propose to read all of it but I think it is important as we enter the committee stage and consider some of the Labor Party amendments to just remember these key parts of the warning that the commissioner has given in relation to some of the amendments. The letter states:

I think most of the Maher Amendments are misconceived and misunderstand the difference between a trial process and an investigation. They also ignore the public interest in the ICAC identifying, investigating and preventing misconduct and maladministration in public administration.

If the proposed amendments were to be passed by the Parliament the ICAC's powers in relation to investigations into misconduct and maladministration would be almost entirely emasculated.

Although I think the ICAC Bill has serious flaws for the reasons I have expressed to you in the letters mentioned above, if Parliament were to accept the Maher Amendments not only would the ICAC not be able to carry out investigations in public but I think ICAC would not be able to carry out any investigations into misconduct or maladministration.

It is not clear whether the purpose and objects of the amendments are to prevent the ICAC investigating serious or systemic misconduct or maladministration at any time but if that is the purpose and objects, and that is the will of the Parliament, then I suggest the whole of the ICAC Act would need to be reconsidered.

I think that one can be no more definitive than that. The commissioner is saying that if the amendments being moved by the Hon. Mr Maher are to be accepted by the committee we are about to hold, he is saying that in his view the entire act will be emasculated, almost entirely emasculated to use his exact words, and that the whole of the ICAC Act would need to be reconsidered.

He is saying that this is not just applying potentially to whether or not they are public hearings; he is saying that the impact of the passage of these amendments would mean that there would not, and I quote him exactly, 'I think the ICAC would not be able to carry out any investigations into misconduct or maladministration'—not public hearings but just not carry out any investigations into misconduct or maladministration.

There is a heavy decision-making load on the committee that we are about to have and particularly to members of the crossbench as to whether or not they are going to heed the warnings of the commissioner in relation to the operations or the potential impact of these amendments, if passed, on the operations of the ICAC. To be fair to the Hon. Mr Maher, I should quote one other sentence where the commissioner says:

I do not intend to comment upon Amendments 6, 7, 11, 12, 15 and 16 all of which are policy decisions for the Parliament.

The commissioner seems to have categorised the Maher amendments into two categories: regarding six of them, of about 30 I think there are, he says he is not going to provide any comment on and that they are ultimately decisions for the parliament, but he has certainly not only categorised but characterised the nature of the other amendments in no uncertain fashion.

Then, very briefly, one other section in relation to one of the more critical amendments—I will quote at the close of the second reading—is in relation to amendment No. 24 from the Hon. Mr Maher, which is the proposed insertion of new clause 8A. The commissioner says:

If clause 8A were to be included in the ICAC Bill, and be enacted, the ability of the ICAC to carry out any investigation into serious or systemic misconduct or maladministration could be compromised because most persons subject to allegations would avail themselves of the rights contained in clause. 8A(1)(b) to avoid the consequences of their alleged misconduct or maladministration becoming known by refusing to participate in the investigation.

It would mean that a public officer who might have engaged in the most egregious misconduct or maladministration would have the right to refuse to participate in an investigation to the extent that that person could refuse to produce relevant evidence to the investigation and thereby frustrate the investigation.

The amendments would, in practical terms, render the coercive powers contained in the Schedule to be no more than requests for voluntary cooperation. In practice there would be little utility in having the coercive powers at all.

There are strong words of criticism included in the quite lengthy letter from the commissioner in relation to the amendments that we are about to consider in the committee stage. In closing the second reading, I urge members of the committee, for the work they are about to do, to take heed of the warnings of the commissioner of the potential impact if this committee in this chamber ultimately chooses to support the bulk of the amendments being moved by the Leader of the Opposition.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I will make a quick contribution to clause 1 in relation to some of the comments that we have heard, particularly from the Leader of the Government. I think it needs to be placed on the record that the Leader of Government very cleverly insulated himself from criticism, given some of his strident comments previously against the ICAC, now as a member of cabinet. I will not use cheap shots and repeat some of the criticisms the Leader of the Government has made here against the workings and what ICAC does, but he has been a fierce critic of the ICAC and its operations in the past.

I should just point out the Leader of the Government mischaracterises Labor's view about ICAC. The undeniable fact is it was the former Labor government, the Weatherill Labor government, that introduced ICAC. They introduced the legislation. They established the ICAC. So to suggest that Labor have never been supporters of ICAC is patently and utterly false, given Labor were the ones who introduced ICAC.

The other thing I will place on record at clause 1—and I think it was a point made by the Hon. Mark Parnell—is that based on the bill that we see before us, the No. 2 ICAC bill, the current commissioner has said (I do not have his exact words here) that it is unlikely he will hold a public hearing based on the Liberal government bill in any event.

The Hon. M.C. PARNELL: I will also be brief but I think this is probably the best opportunity for me to put on the record the approach the Greens will be taking to the suite of opposition amendments. Again, I would reflect on what the minister said. The first point he made was in relation to the historic hostility that the Labor Party had to ICAC. It is probably not over-egging the pudding to say that they were dragged kicking and screaming into here to legislate. But as the Leader of the Opposition says, they ultimately did legislate but it was with some reluctance. Ultimately, the history shows that they did it; that's fine.

The second point that I would note is that, given the Labor Party was in government for the whole of the time that ICAC has been in existence, it has only been their administration that has been subject to inquiries by ICAC, and certainly a number of their people have had adverse reflections. We also need to keep in the back of our mind that there is some historical baggage that comes with the Labor Party's approach to this.

But if that is all it was, some apparent revenge that the Labor Party was wreaking onto the legislation and the commissioner for past embarrassment, then we would not have that much truck with what the opposition was doing. The clear point is that it is not just the opposition that is saying these things. We have the Bar Association, the Law Society and the various witnesses who gave evidence at the Crime and Public Integrity Policy Committee. So I am not being driven in my approach by what the Labor Party alone says. I am looking at the evidence from other stakeholders as well. We will touch on that when we get to each individual clause.

The second thing that I would say in response to the Treasurer's close of the second reading is regarding his reference to Commissioner Lander's letter. If I can paraphrase it, the commissioner is saying that, if all these amendments get through, there is probably not much point in my doing any maladministration or misconduct inquiries. That is effectively what he is saying.

That raises an interesting question, which other witnesses at the Crime and Public Integrity Policy Committee raised as well, which is a bigger question than the one before us now, and that is: where is the line? Where do we draw the line between what the ICAC does and what the Ombudsman does, for example? We know that over the last couple of years there has been—and it might be too strong to call it 'turf war', but there have been difficulties with understanding the demarcation. Which body is best to do what type of inquiry? What should be the powers of each body?

I understand that there is an inquiry currently underway. One of the Labor amendments mandates a further inquiry, or maybe that will be the same inquiry, I do not know. But I think that bigger question of, 'Where does jurisdiction lie?' is going to come back to us at some point. That is not to detract from this bill. We will deal just with this bill.

The third and final point that I would make that colours the Greens' approach to this is that Commissioner Lander has gone to great lengths in a number of his letters to the Attorney-General and the Leader of the Opposition, pointing out the difference between an investigation and a prosecution.

He points out that they are fundamentally different processes and therefore the rules that apply should be fundamentally different. Where I think the commissioner does not get that quite right is that when you have your investigation in public, it does attract to it more of the characteristics of a prosecution in court. You know the old saying: if it looks like a duck, smells like a duck, quacks like a duck and waddles like a duck, it is probably a duck.

To the layperson in the street, these public hearings will not be that much different to a situation where a person is in open court being tried for a criminal offence. Sure, the lawyers understand that it is actually maladministration or misconduct rather than a criminal trial, but it is going to look the same. It is going to be people under the spotlight and in the glare of public light.

The approach that the Greens have taken to this is that those amendments that relate to open hearings and that deal with things like procedural fairness, rights to lawyers, rights to silence and those things that would be an automatic part of a criminal trial really do also belong in public ICAC hearings as well. That is the approach we have taken.

The net result of that will be there are some but not all of the Labor Party amendments that the Greens will be supporting. We think they have over-egged the pudding in a couple of cases, but there are some other ones that we will support and we will work through those as we get to them. I just thought I would put on the record that that is the general approach that the Greens have taken to this bill and these amendments.

The Hon. C. BONAROS: It is not often that we find ourselves in a very similar position to the Greens, but on this occasion we do. I think it is important to note that we are not being guided in this instance by the opposition but rather by those bodies and stakeholders that the Hon. Mark Parnell has alluded to, the issues they have set out and the issues that have been set out in the inquiry report.

The Hon. Mark Parnell has canvassed this as well, but I do just want to touch on one of the points made by the Treasurer, in relation to the opposition's amendments, about no longer having public hearings if this bill goes through, and particularly, and more specifically, if the opposition amendments go through. I will refer to the letter of the commissioner dated 31 October 2018 which talks specifically about the government's bill, not the opposition's amendments, and in which the commissioner makes it very clear that under that bill, as proposed by the government, I quote:

In circumstances where conducting the investigation in private carries no such risks—

the risks that have been outlined in that letter—

it is difficult to foresee circumstances in which a Commissioner would determine that it was in the public interest to hold a public inquiry. It may well be such that circumstances never arise. I myself cannot presently think of circumstances in which I would consider it in the public interest to hold a public inquiry knowing that by doing so the investigation could encounter the risks mentioned above.

He also makes similar comments specifically in relation to the appeal rights, not inserted by the opposition but inserted by the government. I think it is a little bit of a stretch to suggest that the opposition and the crossbench will somehow be responsible for the lack of public hearing; something that we in SA-Best have supported unequivocally if this bill goes through in an amended form. If this bill goes through in its original form, the commissioner is going to have precisely the same concerns and his potential unwillingness to hold those hearings in public will still apply.

The Hon. R.I. LUCAS: The Hon. Mr Parnell's contribution reminds me that there are a couple of issues he raised in the second reading and has repeated in his comments on clause 1 that I should have responded to in my reply to the second reading. Can I say that the Hon. Mr Parnell's position that he put in the second reading and has repeated at the start of clause 1 is, I think, an entirely reasonable proposition and one that is able to be argued.

There are important jurisdictional questions between the jurisdiction of the Ombudsman and the ICAC and I think reasonable people can come to different positions and reasonably argue them. In terms of the legislation ultimately agreed to by the former government and all of us who were there at the time, including the Hon. Mr Parnell and myself, we need to accept responsibility for where we thought we drew the line last time.

Since then, there have been questions raised. In the Hon. Mr Parnell's second reading he raised the issue of where the line should be drawn. Is it where it was—the current act—or should it be moved? That is certainly something that reasonable people might have discussions about, whether it be in a parliamentary committee, this parliament or in the forums of government such as the cabinet. Do we confirm the current arrangements, which we all entered into and voted for or, with the experience of hindsight, should the line be drawn in a different place? I think that is a debate worth having.

I obviously cannot today come before parliament with a view any different to the view we all supported originally. The honourable member has not yet suggested a different line to be drawn other than raising the question that maybe there is a question. I think he did raise the issue that maybe, in that case, as the Ombudsman has argued on the public record, some of the resources that have gone to the ICAC commissioner should be diverted to him.

The issue of resources is an issue that the honourable member raised that I did not respond to. I had it quickly checked. The $15 million figure to which he has referred, in broad terms is around about $7 million over four years in terms of operating expenses, and it eventually evens out at about $2 million a year extra per year. So it is not $15 million ongoing; $7 million of the $15 million is actually operating expenses and, ultimately, it is about $2 million a year extra.

I cannot give you a disaggregated breakdown. I cannot give you a breakdown of the $2 million, but some of that was an argument from the ICAC commissioner irrespective of the issue of public hearings that, in terms of his workload and the work that he was doing and undertaking, he needed additional resources, and some of what was, 'If I'm going to do public hearings'—one or two, or whatever it was—'I need additional resource.'

So not all of that $2 million is due to public hearings. If he does not do public hearings in the future, and that was the end result of the passage of legislation, and he says, 'I'm not going to do any public hearings,' then it certainly would not be $15 million and it would not be $2 million; it might be some component of the $2 million that might be able to be withdrawn and either provided to—and I noted the budget bid from the Legal Services Commission, and others, but it would be a redivision of public integrity body functions if you were actually saying the ICAC commissioner is not going to do certain things and the Ombudsman is going to do other things, and you might redefine the resources between those two particular bodies.

The other approximately $7 million or $8 million of the $15 million is investing or capital works expenditure. Again, I cannot give you breakdown, but not all of that was in relation to providing a venue for public hearings. Part of it was a rejigging of the accommodation of the Ombudsman and his officers and the ICAC officers in their particular building. If there was to be no public hearings, I am not sure whether or not we already have this venue for public hearings, but if it has not occurred and it eventuates that we are not going to have public hearings, then we would be able to stop that particular element of the expenditure. However, my recollection is that the other elements of the investing expenditure did relate to a rejigging of the office space for the Ombudsman and the ICAC commissioner as well.

The final point is in response to the Hon. Ms Bonaros. I accept the fact of the criticism of the commissioner about the government's second bill. The Hon. Mr Parnell highlighted that in his second reading contribution. The important point that I wanted to make in relation to the elements of the letter from the commissioner was that the commissioner is saying, 'There's one level of criticism, that is, I might not be willing to hold public hearings,' and that is just an issue of whether or not there are public hearings. What he has said in relation to the Leader of the Opposition's amendments is that, 'Not only wouldn't I have public hearings; I probably wouldn't do any maladministration or misconduct hearings in private, or in public.'

That is a considerable escalation of the concern that the commissioner has. I acknowledge, as the Hon. Mr Parnell has indicated, that there is one level of concern he has with the government bill and with the Labor amendments, that is whether or not, when you are having a misconduct or maladministration hearing, you can have it in public or in private.

The commissioner has a criticism of the government bill and he has a criticism of the Labor amendments, but members should acknowledge or understand that the commissioner's concerns about the Labor amendments go much further than whether or not they are public hearings. He is actually saying the end result of these amendments would be, 'I, as the ICAC commissioner, don't believe, in public or in private, I would be able to hold any misconduct or maladministration hearing; that is, an Oakden or a Gillman, or those sorts of things; I wouldn't be able to do them. It's not whether or not they are public or private; I just wouldn't be able to do them.'

Now, he did do Gillman, he did do Oakden, but he conducted them as private hearings, not in public. But he did do them. What he is actually saying is, 'If you support these amendments, I'm not going to be in a position to do a Gillman inquiry or an Oakden inquiry,' or a range of other inquiries that he might envisage.

Clause passed.

Clauses 2 to 7 passed.

Clause 8.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 4, line 22 to page 5, line 42 [clause 8, inserted sections 36B and 36C]—

Delete inserted sections 36B and 36C

My first amendment will delete new sections 36B and 36C, which both relate to appeals to the Supreme Court. Section 36B would allow for people to make application to the Supreme Court if they think the commissioner does not have jurisdiction to investigate or if they think the commissioner's decision to hold a public inquiry was not properly made. Section 36C relates to applications to the Supreme Court that a person can make to prohibit the publication or disclosure of certain information.

The commissioner wrote to the Attorney-General last year with regard to these provisions. These letters have since been made publicly available. In them the commissioner expresses his concerns about sections 36B and section 36C. Essentially, there is concern that these appeals could be used to frustrate or delay the investigation. Investigations may need to be suspended pending the outcome of an appeal. This could lead to a protracted investigation which could negatively affect people.

The commissioner has also expressed concern that evidence which is being relied upon in the investigation will be disclosed through the appeal process. This could hinder investigations, as information that would not ordinarily be disclosed would have to be revealed. I understand there is conjecture on these amendments but believe the commissioner is in the best place to be able to determine whether amendments we consider in this place will help or hinder the ICAC to be able to do their job.

As such, I have listened to the commissioner's concerns and move this amendment in line with his comments. The primary purpose of this bill is to allow for open hearings, as the commissioner deems appropriate. The commissioner has made comments that if the bill is passed unamended it would essentially render the open hearings provisions ineffective. No commissioner would risk their investigation for the sake of holding an open hearing, notwithstanding the fact that it is greatly in the public interest.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 4, lines 35 and 36 [clause 8, inserted section 36B(1)]—

Delete 'a public officer or public authority' and substitute 'any person'

I inform the committee that amendment No. 2 [Maher-1] is consequential, so I will not be proceeding with amendment No. 2 [Maher-1] if amendment No. 1 [Maher-1] fails. I also indicate that the opposition will not be supporting the Hon. John Darley's amendment. The opposition will then, effectively, be supporting what the government has put in place in their second bill but with the [Maher-1] amendment.

The government's bill reflects recommendation 2 of the Crime and Public Integrity Policy Committee in relation to allowing an appeal to determine the commission's jurisdiction. What our amendment seeks to do is to give full effect to that recommendation. The recommendation reads in part:

…that the Bill be amended to provide that, where the power of the Commissioner to conduct a public inquiry is in question, the Commissioner, a public officer, a public authority, or any of the persons given written notice as per this recommendation, be conferred with a right to apply to the Supreme Court…

The government's bill as drafted gives that right to a public officer under clause 8, 'a public officer or a public authority'. We are deleting 'public authority' and using 'any person', but that is then limited to what is already in the bill: any person that may be affected by the investigation may 'determine the question and make any orders necessary to give effect to the determination'. So we are in effect supporting what the government is doing but giving full effect to the CPIPC recommendation.

The Hon. R.I. LUCAS: I rise to address both amendments. I will do them sequentially. The government opposes the amendment from the Hon. Mr Darley for the following reason. The amendment would delete proposed sections 36B and 36C. These provisions, subject to the clarification I will set out in a moment, were inserted in order to address parts of recommendations 2 and 3 of the Crime and Public Integrity Policy Committee report so as to provide for express rights to challenge a decision of the commissioner to conduct a public inquiry and to refuse an application for suppression under clause 3 of schedule 3A. The government has accepted these recommendations of the parliamentary committee and so will not support this amendment.

Section 36B(1)(b)(i), which provides that the Supreme Court may determine the question of whether the commissioner has the jurisdiction to conduct an investigation, is modelled on section 28 of the Ombudsman Act and was proposed to be included by ICAC bill No.1 to facilitate the replication of the powers of the commissioner to conduct an inquiry in the ICAC Act rather than using the powers of an inquiry agency. This provision would also be removed by amendment No. 1, and this change is not supported.

I will also address amendment No. 1 from the Hon. Mr Maher. In doing so, I will give a quite lengthy detailed reason for opposing this particular amendment. I propose to do so to outline the Attorney-General and the government's position in relation to the package of amendments, of which this is the first from the Hon. Mr Maher. I hope it will expedite the proceedings of the committee in that I will not repeat the explanation for each of the subsequent clauses as we debate them.

The government opposes this amendment and all the amendments in [Maher-1] as the honourable member's amendments relate to the same set of guiding principles. I propose to make a general statement of the government's reasons for opposing the amendments as a whole in this clause.

The intention of the government's bill is to provide for the commissioner to determine to conduct a public inquiry into misconduct or maladministration in public administration while also consolidating the ICAC's powers in the ICAC Act without reference to the ICAC exercising the powers of an inquiry agency. It has not sought to vary, extend or interfere with the conduct of the investigations beyond the provision for public hearings and consequential changes.

The proposed amendments in [Maher-1] fundamentally change that and the nature of the inquiry to be conducted by the ICAC, whether in public or private. The amendments provide for vastly different procedures the ICAC would be required to comply with if exercising the powers of the inquiry agency in the present act.

The opposition's amendments also move well beyond the recommendations of the Crime and Public Integrity Policy Committee in its report of last year. The honourable member in his second reading contribution states that the amendments seek to treat a hearing, if a public hearing, much more akin to a trial where a defendant is before the public eye and receiving publicity about the proceedings that are occurring.

An ICAC inquiry into misconduct or maladministration in public administration, even if held publicly, is not a trial; it is an investigation. These inquiries differ from proceedings in courts or tribunals. They are inquisitorial rather than adversarial, designed to discover facts that may lead to further action being taken. There is no issue to be decided. No person appearing at an examination has a case to pursue. There are no parties, there is no defendant or accused, there is no power to find anyone guilty of an offence, to award a payment of compensation or adjust the legal rights of anyone.

As stated by the ICAC in his letter of response to the honourable member's amendments, the purpose of the investigation is to obtain evidence by observation, obtaining documents and interviewing witnesses for the ultimate purpose of the decision-maker in finding facts and making a decision as to whether or not the person or agency under investigation has engaged in the conduct the subject of the allegations.

The amendments proposed in [Maher–1] would see the operations of the ICAC in relation to misconduct and maladministration inquiries well out of step with other inquiry agencies and anticorruption bodies. Inquiry bodies are generally not bound by the rules of evidence or other practices or procedures that apply to a trial. Neither the Ombudsman nor the Coroner is bound by the rules of evidence. A royal commission is not bound by rules of evidence. They may inform themselves on any matter as they think fit and may act without regard to technicalities and legal forms. All equivalent anticorruption legislation provides similarly so that the inquiry is carried out as informally and as effectively as possible, according to the circumstances and situation, and can inform itself outside the rules of admissibility.

The amendments would remove a level of flexibility and thoroughness that is an essential part of an investigation. It has a different purpose to a trial. As also stated by the ICAC in his letter, if a matter were to be referred to the Ombudsman by the ICAC, the Ombudsman would continue to investigate the conduct, exercising all the powers of a royal commission.

Amendment No. 24 [Maher–1] provides that a person against whom allegations are made of potential misconduct or maladministration in public administration would be entitled to refuse to participate in the investigation. This would apply to both public and private investigations, as would a number of the amendments. As stated by the ICAC, this provision would seriously compromise the ability of the ICAC to carry out any investigation into serious or systemic misconduct, as most persons subject to allegations would avail themselves of this right. The coercive powers in schedule 3A would be useless.

In the words of the ICAC, if the proposed amendments were to be passed, the ICAC's powers in relation to investigations into misconduct and maladministration would be almost entirely emasculated. In his view, not only would the ICAC be unable to carry out investigations in public, the ICAC would be unable to carry out any investigations into misconduct or maladministration. He further states that the whole of the ICAC Act would need to be reconsidered if the parliament desires to make such changes. It is clearly not in the public interest to frustrate these inquiries in the manner as provided in the proposed amendments.

In addition to the proposed amendments that would fundamentally change the nature of the inquiry, some of the further amendments would stymie or significantly disrupt the progression of the inquiry, as the examiner would no longer retain the control of the direction of the investigation or the release of information and evidence, for example, allowing a legal practitioner representing a person at an examination to cross-examine any witness on any matter, which previously would have been at the discretion of the examiner.

Parties giving evidence would also be entitled to call and present evidence relevant to the investigation, including by calling witnesses or presenting evidence by affidavit, which could result in lengthy tactical delays to an inquiry that the examiner would be powerless to control.

Some of these proposed amendments would also apply to hearings held in private. As stated by the ICAC in his response, amendments of this nature would take the control of investigation out of the examiner's hands, and extend and make an investigation more complicated. It would not allow the examiner to control cross-examination, which would subvert the whole process. The examiner already has the ability to conduct the investigation as he or she sees fit, and parties can make submissions to the examiner should they consider further information, investigation or examination to be of assistance to the investigation. It is not clear why this discretion should be removed from the role of the examiner.

A further proposed amendment would see that, where a person is summoned to appear at a public examination, the ICAC must ensure that at least 28 days before the date appointed for the examination the person is provided with a disclosure statement setting out a summary of the allegations that are the subject of the investigation, a description of the evidence or information that has been obtained by the ICAC and a list of other people to be examined.

In relation to each other person to be examined, the disclosure statement would need to set out why the person is being examined and the general nature of the matters in relation to which the examiner intends to question the person. The ICAC has referred to this amendment as so onerous as to make the task impossible. The ICAC has also expressed on previous occasions the potential detriment and prejudice to the investigation should he be required to disclose information that he wishes to withhold for the forensic benefit of the investigation, including an order to prevent witness collusion or concoction of evidence.

It is unclear why amendments are necessary that would make the conduct of an inquiry so inflexible. For example, under the proposed amendments, a determination to hold a public inquiry could occur before witnesses are summoned or examined, and if a determination to hold a public inquiry was revoked the schedule would apply as if the matter were conducted in public. By nature, an investigation will evolve and matters previously unaware to the investigator will be made known. In the interests of a thorough investigation, the flexibility of the ICAC to change the course of the inquiry is essential.

One of the primary objects of the ICAC Act is to achieve an appropriate balance between the public interest in exposing corruption, misconduct and maladministrative in public administration and the public interest in avoiding undue prejudice to a person's reputation. The government's bill requires that the ICAC must be satisfied that it is in the public interest to hold a public inquiry.

There is a public interest test in the bill, which lists certain matters that the ICAC must take into account when determining when it is in the public interest to undertake a public inquiry. This does not limit the matters that the ICAC may consider. There is also 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 bill or the act. The ICAC 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 following the proposed amendments in the first ICAC bill.

Additional protections were then included in the ICAC bill at the request of the committee, such that a clarification provision has been included in clause 6 of schedule 3A so as to make absolutely clear that a person is not required to answer a question, provide information or produce a document or thing if the answer or production would tend to incriminate a person of an offence. Clause 8 of schedule 3A already provided that statements made in an investigation in response to notices issued by the person heading the investigation are not admissible in evidence.

Appeal processes were set out in the bill at the recommendation of the committee. As well, judicial review is available at common law, without any express provision for it in the act, and provides the court with a supervisory role over the decisions of administrative decision-makers like ICAC to ensure decisions are properly made. A review would be available, for example, where an examiner unreasonably refused to hear an application for the hearing to be closed or if the decision to have an open hearing was one that no reasonable examiner would make in all the circumstances and the decision personally affected the person.

The opposition's amendments are inconsistent with the intention of the ICAC bill, and will fundamentally change the nature and operations of the ICAC in relation to inquiries into misconduct and maladministration in public administration. The government, therefore, opposes amendments Nos 1 to 29 [Maher-1]. The government fought tooth and nail for the ability to hold public hearings; the now opposition has vehemently opposed such transparency consistently, and these amendments are no different.

This bill has had nothing but delays and hold-ups from those opposite, desperate to ensure the independent commissioner can never hold a hearing in public and ensuring that horrors like Oakden are again swept under the rug and kept behind closed doors. I urge, on behalf of the government, those on the crossbench to see sense and uphold the decision of the South Australian voters who voted in a new government for public hearings, accountable government and transparency.

The Hon. M.C. PARNELL: I am certainly not going to address the whole range of matters the minister has just gone through, which actually go to all of the 30 or so amendments that we have to deal with, but I want to focus just for now on the two amendments that have been moved and that are before us. First, Mr Darley's amendments seek to effectively remove the proposed new sections 36B and 36C. The Greens will not be supporting those amendments; we support those provisions in the bill as they are drafted.

In relation to Mr Maher's amendment in relation to what we might call an appeal to jurisdiction, he seeks to expand the range of people who can make such an appeal, including an appeal against the whole concept of holding a public hearing, to any person, rather than just the limited range that is in the bill as drafted. The range of people in the proposed new section 36B who can bring such an appeal are the commissioner herself or himself, a public officer or a public authority that may be affected by the investigation.

When you actually dig down and have a look at who those people are it is a very long list of people. They are included in schedule 1 of the original act, the Independent Commissioner Against Corruption Act. It includes all members of parliament, for example, who are public officers. There is a whole range of senior public servants, local councillors—in fact, there is effectively a two and a half page list of people who can actually bring these appeals.

My feeling is that in relation to those types of appeals I am happy for it to be limited to the people in the bill, that is the commissioner, public officer or public authority. However, I make the point that the real evil that the Greens are keen to overcome is unfair damage to reputation. The way that problem is addressed is in the next section, section 36C, where witnesses or other people can actually challenge the failure of the commissioner to suppress their evidence or the insistence of the commissioner on hearing their evidence in public. That is the sort of direct consequence that we want people to be able to deal with through appeal.

Having said that, we talked about unfair damage to reputation but in this jurisdiction there will be a lot of very fair damage to reputation as well. There will be people whose reputations do not deserve to survive because of what they have done. However, because we are going to be potentially doing this in public then there need to be a lot more checks and balances because, as people have pointed out, you can be on the front page of the paper every day with a litany of things that has been suggested to you that you have done wrong—they might not be criminal but you will be on the front page every day and by the time you are vindicated some time later it is relegated to page 17—but 'You'll never work in this town again.'

There are serious reputational issues at risk and so for those reasons the Greens will not be supporting the first of the opposition's amendments but, because we are not supporting Mr Darley, we are keen to keep section 36C in place and we think that most of the evils that we want to overcome can be dealt with by the bill as drafted.

The Hon. C. BONAROS: For the record I, too, would like to indicate that on behalf of SA-Best we will not be supporting the Darley amendments which reject the appeal rights which are in the bill, and we also will not be supporting the Maher amendments, which go a lot further in terms of who is able to appeal, and broadens that scope from public officer or public authority to any person.

The only comment I will make because I think the Treasurer and the Hon. Mark Parnell have canvassed this quite well, is in relation to those amendments and the appeal rights generally and the opposition to appeal rights. I mean this with the greatest of respect to the ICAC commissioner who I know everybody holds in high regard, but it is this parliament that is going to determine what this bill will ultimately look like and not the commissioner.

I think a very good case has been made by everybody here, by the inquiry and by the stakeholders who have provided input into this bill as to why it is—in terms of transparency, checks and balances, as the Hon. Mark Parnell has alluded to—that we need appeal rights. For that reason, we will be supporting the government's proposed amendment in that regard.

The CHAIR: Does any other honourable member have a contribution? I am going to put a question that says that all words down to but excluding 'a public officer' stand as printed. So if you support the opposition's amendments, or you oppose the Hon. Mr Darley's amendments, you will vote in the affirmative, because with the motion being successful it simply provides that the words that are already in the existing bill stay.

If you support the Hon. Mr Darley, you will vote in the negative. If you are supporting the government, the government will vote in the affirmative as well. It just will not support in the affirmative the second question I will put, which is amendment No. 1 [Maher-1]. Again, if you support the Leader of the Opposition's amendments and/or if you support the government's bill, you will vote in the affirmative because simply the motion being put is that the existing words in the bill stand as printed. If you support the Hon. Mr Darley, you will vote in the negative.

Question agreed to; the Hon. J.A. Darley's amendment negatived.

The CHAIR: Unless any other honourable member has a contribution, I intend to put amendment No. 1 [Maher-1] to the committee. I put the question that this amendment be agreed to.

The Hon. K.J. Maher's amendment negatived.

The CHAIR: We now have amendment No. 2 [Maher-1]. I think the Leader of the Opposition indicated to me that that may be consequential. Could you indicate for the benefit of Hansard?

The Hon. K.J. MAHER: For the benefit of Hansard, I will not be moving amendment No. 2 [Maher-1]. It is consequential on the amendment which has just been lost.

The CHAIR: We now come to amendment No. 3 [Maher-1].

The Hon. K.J. MAHER: I move:

Amendment No 3 [Maher–1]—

Page 5, before line 10 [clause 8, inserted section 36C]—Before inserted subsection (1) insert:

(a1) A person given notice by the Commissioner under Schedule 3A clause 2(2b) may appeal to the Supreme Court against the Commissioner's decision to hold the public inquiry.

I indicate again that there follows consequential amendments; that is, amendments Nos 4, 5, 6 and 7 [Maher-1] are consequential on amendment No. 3 [Maher-1] so if amendment No. 3 [Maher-1] fails, I will not be proceeding with the following four amendments. In speaking to this amendment and the ones that are consequential, what we are attempting to do is to give effect to a submission from the South Australian Bar Association in relation to appeal rights.

This is particularly in relation to appeal rights that flow-on from the consequences of an amendment that comes much later at amendment No. 18, so amendment No. 3 [Maher-1] are appeal rights that flow-on from amendment No. 18. We think this is a sensible amendment that gives appeal rights and, for the reasons that people have spoken about, the need for appeal rights previously.

The Hon. R.I. LUCAS: For the reasons I outlined in my lengthy explanation earlier, the government is opposing this particular amendment as well.

The Hon. M.C. PARNELL: This is where it starts getting a bit complex but, in effect, what the Maher amendment does, is that it expands appeal rights against public hearings to those potential witnesses who were given direct notice of the fact that a public hearing was to be held. The Greens are not convinced that that direct notice provision adds a great deal to the bill. We note that there are already website advertisements, there are already newspaper advertisements, and there is 21 days' notice, I think it is.

Our view is that everyone who needs to know about it is going to know about it—the people who work in that workplace, work colleagues—and it is very difficult to imagine circumstances where people potentially involved in these hearings will not know about it. So it is consistent with our position that we do not need that extra level of direct personal notification of potential witnesses, bearing in mind that they will get it wrong, and they will leave people out for sure. If we are not supporting the direct notification, it does not make any sense to give those people a special appeal right. So for those reasons, if it makes sense, the Greens will be opposing this amendment.

The Hon. J.A. DARLEY: For the record, I will be opposing amendment No. 3 [Maher-1].

The Hon. C. BONAROS: If it assists the chamber, for the record, SA-Best will be opposing this amendment.

Amendment negatived.

The Hon. K.J. MAHER: I will put formally on record now, as I foreshadowed, that I will not be moving amendments Nos 4, 5, 6 and 7 on [Maher-1] as they are consequential on the amendment that has just been lost. I move:

Amendment No 8 [Maher-1]—

Page 5, after line 36 [clause 8, inserted section 36C]—After inserted subsection (5) insert:

(5a) An appeal under this section will be by way of rehearing.

This clarifies what sort of an appeal is going to be held if a decision is appealed. There are a number of ways that the Supreme Court could hear the appeal. They could hear the appeal just based on the merits of the decision-making process. They could hear the appeal by way of a rehearing that is taking into account the same evidence that the commissioner took into account when making his decision or it could be an appeal de novo, in effect a complete and other relook at the whole decision taking into account fresh evidence.

What we have done is we have taken the middle road. I think there were submissions to the Crime and Public Integrity Policy (CPIP) Committee that it should be even further than what we are suggesting in an appeal de novo. We have elected to put it in here by way of a rehearing.

The Hon. M.C. PARNELL: My first inclination when I saw this was that it might be unnecessary. However, on reflection, I think it makes sense to clarify the nature of the appeal. As the member has pointed out, you have a spectrum. At one end of the spectrum all the court would do is have a look at whether the commissioner took into account all the things that they were supposed to. If that is just to tick a box, you do not assess whether the commissioner got it right or not. You just ask, 'Did the commissioner put her or his mind to this?' If the answer is yes, that is enough. That is one end of the spectrum.

The other end of the spectrum would be that if the person forgot to present a whole lot of evidence to the commissioner the first time round and had a finding against them, they can dig up a whole lot of new evidence and they can have another go with new evidence as well. So that would be the hearing de novo.

As the minister said, he has pitched it in the middle. I do not think this is as important an amendment as a number of the others we will be considering, but because it has the effect of clarifying the nature of the appeal. I think that is worth doing to give that guidance to the Supreme Court, so we will be supporting this amendment.

The Hon. R.I. LUCAS: I am not sure whether I have indicated our position, but I should place it on the record if I have not. The government is opposing this particular amendment as well.

The Hon. J.A. DARLEY: I will be opposing this amendment.

The Hon. C. BONAROS: Our position on this, and I take note of what the Hon. Mark Parnell has just said, is that the court usually decides this issue. Hearings would be by way of a rehearing, so I am not sure that it is entirely necessary to make that clear in the legislation itself. I think that is a given and it is a decision that will be taken by the Supreme Court. On that basis, we do not intend to support the amendment.

Amendment negatived; clause passed.

Clause 9 passed.

Clause 10.

The Hon. K.J. MAHER: I move:

Amendment No 9 [Maher–1]—

Page 6, lines 20 to 22 [clause 10, inserted section 39A(3)]—

Delete '(but the validity of the exercise of a power cannot be questioned on the ground of contravention of the operating procedures)'

I might indicate that amendment No. 9 [Maher-1] is consequential on the more important amendment that does the work, which is amendment No. 10 [Maher-1]. I might speak to them both; in effect, I am actually speaking to amendment No. 10, as that is the amendment that does the work here.

What these two amendments do is talk about the fact that the ICAC is required to publish standard operating procedures but, having published those, there is nothing that can be done for a contravention of them. They have no force and no effect if they are merely published somewhere and then have no operation or ability for anyone who is aggrieved if you deviate from them at all.

What this amendment seeks to do, if there is a contravention of the operating procedures in the exercise of the commissioner's power, is enable a person adversely affected by that exercise of power to apply to the Supreme Court for a remedy. It will be up to the Supreme Court to decide, firstly, if there has been a contravention of those powers. It will also be up to the Supreme Court to decide, effectively, if that person has standing—that is, has been adversely affected by the contravention of those powers—and then it will be up to the court to decide if that person has been actually adversely affected and to make such orders as the court thinks fit.

We think this is a reasonable amendment. If there are procedures that the commission themselves has set down as to what they ought to do and how they ought to do it, there ought to be consequences that flow from not doing what they have set down for themselves as standard operating procedures. This gives the Supreme Court the jurisdiction to make those decisions about what remedies may be in place for someone adversely affected.

The Hon. R.I. LUCAS: For the record, the government is opposing this amendment and also the attached amendment No. 10.

The Hon. M.C. PARNELL: I certainly understand the position that the Leader of the Opposition is coming from. His point, basically, is that if the act is going to include a section that requires the commissioner to prepare standard operating procedures, then there should be some consequence of failure to comply with those procedures.

Having accepted that as a basic principle, part of the dilemma we have here is that those operating procedures could become quite detailed. There could well be very minor departures from them that are of no great consequence at all but that result, effectively, in an automatic right to appeal. I know the member said standing would have to be satisfied, but the sort of people who are there as witnesses are going to have standing; that is not a problem.

I am not going to support this amendment. I do not know if the Treasurer can go back to those extensive notes he read before, but I am pretty sure what I heard him say, and what I thought was the case, is that regardless of whether we write in here any particular legal right for a person to go to the Supreme Court alleging a breach of process, the general powers of judicial review would continue to apply.

If someone felt that they were really hard done by or that procedures were not followed, then whether this amendment is in or not, that person, if their interests are affected, would have the power to go to court. That is my understanding of it and I am pretty sure that is what the minister read out before. He may be able to clarify that, but if my understanding of that is correct, I do not think we need this and the Greens are not inclined to support it. If the minister tells me that I have that entirely wrong, then we might revisit it.

The Hon. R.I. LUCAS: The member has accurately reflected the advice I placed on behalf of the government. What he has just said is accurate.

The Hon. J.A. DARLEY: I will be opposing amendment Nos 9 and 10 [Maher-1].

The Hon. C. BONAROS: I think it is important to highlight that there will still be opportunity for judicial review, but I think, as has been pointed out, the operating procedures could be quite detailed and inconsequential in some respects, and there will be the issue of standing. Especially given the broad nature of the amendment, because it does refer to any person adversely affected, the last thing we want in this bill is to create a lawyers' picnic. There is a very real concern that that is the path that we will go down by accepting the amendment, so for those reasons we will not be supporting the amendment.

Amendment negatived.

The Hon. K.J. MAHER: I formally place on the record that I will not be proceeding with amendment No. 10 [Maher-1]. I move:

Amendment No 11 [Maher–1]—

Page 6, line 26 [clause 10, inserted section 39B(2)]—Delete 'The' and substitute:

Subject to subsection (2a), the

Amendment No 12 [Maher–1]—

Page 6, after line 28 [clause 10, inserted section 39B]—After inserted subsection (2) insert:

(2a) If the Commissioner determines to conduct a public inquiry for the purposes of an investigation into misconduct or maladministration in public administration, the Commissioner must head the investigation.

Like the last two amendments, No. 11 is consequential on No. 12, so I will speak to amendments Nos 11 and 12 together and again take the vote on amendment No. 11 as a test for the issue that both of them deal with. Amendments Nos. 11 and 12 are reasonably simple. I am sure the Treasurer will correct me if I am wrong, but this may have been one in which the commissioner himself said that this is a matter for parliament and passed no judgement on it. So this is not one that I think members, and particularly the crossbench, should feel they are going to slight the commissioner by not supporting. This is one where he is not coming down and holding meetings or putting pressure on anyone to vote in a particular way. This is one where the commissioner has allowed a free conscience vote, which is good.

This amendment in its essence says that, if there is to be a public inquiry held, the commissioner must head that inquiry. We support public inquiries being held but I think, for some of the reasons that have been outlined, particularly by the Hon. Mark Parnell, with that great inquiring ability and the potential harm to people's reputation comes a need for proper protections to be put in place for individuals. We think that the commissioner is in the best position to make sure a public inquiry is held fairly, so we are moving an amendment that, if it is a public inquiry, the commissioner must hold that inquiry.

The Hon. M.C. PARNELL: I think most people's expectation would be that, if it is one of these very rare events where a public inquiry is warranted, the commissioner herself or himself will want to do it themselves. This makes it clear that they must. I do not think anyone is suggesting that the work experience kid might be given this particular gig. I think it will have a certain gravitas and it is important that the nominated commissioner handles the hearing, so the Greens will be supporting these two amendments.

The Hon. J.A. DARLEY: I indicate I will be supporting the opposition's amendments.

The Hon. C. BONAROS: I indicate that we will also be supporting the amendments. I was not going to go down this path but, given that the opposition leader has made reference to it, I will. I think it is unfair to describe the meetings that have taken place with the commissioner as ones where pressure has been applied, because that is certainly not the case. The commissioner has conducted himself as you would expect the commissioner to conduct himself. He has provided us with information regarding the bill and the amendments, and he has simply provided guidance as to what he thinks is workable and unworkable.

There will be many decisions that we make today that he will not like, but they are decisions that we are making. For the record, I want to confirm that there was absolutely no pressure placed on anybody, I would say, who attended the briefings with the commissioner in terms of what decisions we ought to be making. I think it also fair to say that the commissioner did not have a view to express on probably amendments Nos 11 through to 16, I think it was. Just for the record, I make those remarks.

The Hon. R.I. LUCAS: I am nothing if not a realist. I recognise the majority in the chamber. For the record, the government formally opposes the position, but I will make two or three brief comments. To answer the question from the Hon. Mr Parnell, it is correct: this was one of the ones that the commissioner has indicated he believed was a matter of policy for the parliament. I think the Hon. Ms Bonaros indicated that.

Whilst I was not actively engaged in any discussions on this bill with the commissioner, can I also share the views the Hon. Ms Bonaros has just put on the public record and distance myself from the comments made by Leader of the Opposition in relation to the commissioner's position. Ultimately, it is the commissioner's prerogative to indicate what he believes will be the impact of any legislative amendments we might make.

If he as the commissioner thinks it will result in no public hearings, either under the government bill or under the government bill with the Maher amendments, or if he also thinks that if the government bill was to be passed with the Maher amendments not only would there not be public hearings but there would potentially be no private hearings into misconduct or maladministration, it is entirely his position and prerogative to inform members of parliament of what will happen in his view—he is the commissioner—if we make the particular changes. So I do share the views of the Hon. Ms Bonaros, and I do not share the views placed on the public record by the Leader of the Opposition.

The Hon. K.J. MAHER: I might just rise, before we vote on this, to place on the record, if I have mischaracterised events that have occurred—and I accept that I was not at those meetings, so the Hon. Connie Bonaros is in a much better position to properly characterise those, and I accept her characterisation of them.

Amendments carried; clause as amended passed.

Clauses 11 to 15 passed.

New clause 15A.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 10, after line 19—Insert:

15A—Amendment of section 57—Victimisation

(1) Section 57(6), penalty provision—delete '$10,000' and substitute:

$20,000 or imprisonment for 2 years

(2) Section 57(8), definition of detriment, (a)—delete paragraph (a) and substitute:

(a) loss or damage (including damage to reputation); or

(aa) injury or harm (including psychological harm); or

(3) Section 57—after subsection (8) insert:

(9) For the purposes of this section, a threat of reprisal may be—

(a) express or implied; or

(b) conditional or unconditional,

and in any proceedings dealing with an act of victimisation (including proceedings for an offence against subsection (6)) it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

This amendment involves an increase to the penalty for victimisation, recognising the gravity of breaching those provisions, and bringing those penalties in line with the victimisation offence in the Public Interest Disclosure Bill. The amendment also broadens the scope of the definition of 'detriment'. Whilst we note that the list is inclusive and not exhaustive, SA-Best remains of the view that it is of benefit to broaden the scope of loss or damage to include damage to reputation and that injury or harm includes psychological damage.

The amendment also clarifies the meaning of a threat for the purposes of the victimisation offence. The amendment clarifies that a threat to cause detriment need not be express or unconditional but may also be implied or conditional. In addition, it is not necessary for a person seeking an order to prove that he or she actually feared that the threat will be carried out. As noted, the amendment contains provisions which were successfully passed in the Public Interest Disclosure Bill last year. As such, I trust that the majority of members will see fit to pass the amendments of this bill, as they did last year, to align those provisions relating to the victimisation offence.

The Hon. M.C. PARNELL: The Greens will be supporting this amendment.

The Hon. J.A. DARLEY: I will be supporting this amendment.

The Hon. K.J. MAHER: For the record, the opposition will be supporting the amendment.

The Hon. R.I. LUCAS: I am a realist. The government's formal position is to oppose it, but I recognise the will of the committee.

New clause inserted.

The CHAIR: We now come to amendment No. 13 [Maher-1]. Can I just alert members that, whilst the Leader of the Opposition is seeking to insert a new clause 15A, it is a completely different clause and seeks to effect different amendments. If it is agreed to, the renumbering of clauses will occur automatically.

New clause 15A.

The Hon. K.J. MAHER: I move:

Amendment No 13 [Maher–1]—

Page 10, after line 19—Insert:

15A—Insertion of section 62

After section 61 insert:

62—Review of Act by Crime and Public Integrity Policy Committee

(1) Without limiting section 15O of the Parliamentary Committees Act 1991, the Crime and Public Integrity Policy Committee of the Parliament (the Committee) must inquire into and consider the operation of the whole of the Independent Commissioner Against Corruption Act 2012 (as amended by the Independent Commissioner Against Corruption (Investigation Powers) No 2 Amendment Act 2018).

(2) Without limiting the matters that may be considered in the inquiry under this section, the Committee must inquire into the effect (if any) that the operation of the Independent Commissioner Against Corruption Act 2012 has had on the functions, operations and effectiveness of State law enforcement and integrity agencies.

(3) The inquiry under this section must be completed by 31 July 2020.

(4) For the purposes of the Parliamentary Committees Act 1991, the inquiry under this section will be taken to be a matter referred to the Committee under this Act.

(5) In this section—

State law enforcement and integrity agencies—the following are State law enforcement and integrity agencies:

(a) South Australia Police;

(b) the Ombudsman;

(c) the Auditor-General;

(d) any other agency or instrumentality of Crown, or holder of an office established under an Act, whose functions consist of or include law enforcement, or the investigation of matters related to public integrity.

I know that the Crime and Crime and Public Integrity Policy Committee is already doing a review on these terms. This may well not be needed, but I move it and seek support for it. I think it is a worthwhile review to be conducted and it does no harm, even if they are already doing it, to have it in there to make sure it is done.

The Hon. R.I. LUCAS: The government is opposing this. I think the honourable member in moving it sort of gave three-quarters of the reasons why. It is already being done. One of the problems with actually having it in here is it places a time limit upon which it actually has to be concluded, and it relates to the new provisions of the act.

I am advised that, if the parliament ultimately passes it—and this has to go through our house and potentially other discussions in another house and maybe even between the houses—by the time it is actually instituted, etc., how long it will actually be operating before July 2020 is an interesting point in and of itself.

My understanding is the current review that is being conducted is broad. It is not limited in terms of its time. It can produce interim reports and a number of reports, if it wishes to do so, as part of its normal purview. But the main part of the argument is it is being done anyway, so I just do not see that there is a purpose of actually putting it in the legislation. For those reasons, we are opposing it.

The Hon. K.J. MAHER: Just before other people have a crack at it, I do take into account some good points—and I will not say this often—that the Treasurer makes. We are keen to have it in there, but this is one, as it goes between the houses and comes back, particularly with the points he has made on time limits, we are keen to revisit. So we are not completely fixed that this is how it should be and we will not reconsider changes to it as it comes back to this house.

The Hon. M.C. PARNELL: I will help the Leader of the Opposition. He does not even need to do that. The reason it is important to keep this in is that the committee, as I understand it, of its own volition has undertaken an inquiry. There is no reason why, of their own volition, they might not abandon it. This requires them to do it.

Certainly in terms of the date, it will give them basically a year, effectively. Provided they report something within that year, their obligation is satisfied. I note the careful attention of the Chair of that committee. As long as, if this provision passes, the committee remembers to associate its existing inquiry with this provision, if it goes through, then it will satisfy it. Otherwise, someone might say, 'Well, they have to actually start a new one under this section and do it all again.' That would be silly. You might as well rebadge the committee's inquiry as under this section. It does no harm being there. In fact, it is a guarantee that that work will continue, although I have no reason to suspect that it would not anyway.

The Hon. C. BONAROS: For the record, once again I accept the comments made by the Hon. Mr Maher, but I think, for the reasons just outlined, it is important that this provision be inserted in the bill. As such, we will be supporting it.

The Hon. J.A. DARLEY: I indicate that I will be opposing this amendment.

New clause inserted.

Clause 16.

The CHAIR: Honourable members, I need to alert you to a drafting correction, which will not take you away from the debate. For the purposes of being complete, clauses 16 and 17 are out of order. We will deal with them in the order that appears in the bill before us, but they will be reversed in the reprint.

The Hon. K.J. MAHER: I move:

Amendment No 14 [Maher–1]—

Page 10, after line 30—After subclause (1) insert:

(1a) Schedule 4, clause 3(1)(a)(i)—after subsubparagraph (B) insert:

and

(C) if any determination was made by the Commissioner to conduct a public inquiry—whether the determination was properly made (in accordance with Schedule 3A clause 2);

This is a reasonably simple amendment. The ICAC reviewer has a range of functions in relation to reviewing the operations of ICAC. Given that in this bill we have public inquiries as a new function of ICAC, the amendment simply says that the ICAC reviewer inquires into whether those determinations were properly made.

The Hon. R.I. LUCAS: The government is opposing this amendment. In addition, the government is of the view that this would impose an inappropriate requirement on the schedule 4 reviewer, particularly in circumstances in which the Supreme Court has heard and determined the matter in the first instance. The reviewer is already required to consider in his or her review whether undue prejudice to the reputation of a person was caused, and may examine any other particular exercises of power by the commissioner.

As raised by the ICAC in his letter, this additional requirement would impose a very onerous obligation on the reviewer to consider all the material available to the commissioner in making a determination to conduct a public inquiry. It is not clear what would be achieved by the amendment.

The Hon. M.C. PARNELL: I think this amendment falls into the category of overreach that I mentioned before. I think the minister is correct. It may well have been that the question of the appropriate exercise of the power has been agitated uphill and down dale, including in the Supreme Court, and to then have the reviewer have to look at it again I think is probably unnecessary; at least, to specify it in the act I think is unnecessary.

I make the point that people who are unhappy have that right of appeal. We have now included that in the bill, so the idea of the reviewer having to go back and revisit it when no-one was unhappy and no-one appealed I think is probably unnecessary. My understanding of the nature of schedule 4 is that there is probably an overriding power in there that if the reviewer felt that things had gone terribly awry, the reviewer would have the ability to report on that without this provision. We will not be supporting it.

The Hon. J.A. DARLEY: For the record, I will not be supporting this amendment.

The Hon. C. BONAROS: For the record, we do support this. I acknowledge the comments that have been made, but we do see this as a bit of a safety net. I appreciate that some of those decisions may have already gone to appeal and whatnot, but there may be issues, just in terms of the process and the steps that have been taken during one of these inquiries, and therefore a reviewer will be able to look at those and ensure that all the appropriate steps have been taken. Again, it acts as a bit of a safety net, and for those reasons we will support it.

The Hon. M.C. PARNELL: I did not quite get to this before I stood up before, but I do note that the powers of the reviewer under schedule 4 are effectively unlimited. It says that without limiting the matters that may be the subject of a review, the reviewer may examine any particular exercises of power by the commissioner or the office.

So an unlimited power already exists. There are two ways that can go: one is, as the Hon. Connie Bonaros has said, that it does no harm, they can do it anyway, but this actually makes the reviewer do it. The reviewer might not think it is appropriate—I am happy to leave it to the reviewer to decide whether or not this is a particular power they want to review. That is my justification for saying that it is not necessary but, again, I think we have bigger fish to fry later, but all these views are valid.

Amendment negatived; clause passed.

Clause 17.

The Hon. K.J. MAHER: I move:

Amendment No 15 [Maher–1]—

Page 11, lines 23 to 26 [clause 17, inserted Schedule 3A, clause 1, definition of examiner]—

Delete the definition of examiner and substitute:

examiner means—

(a) in relation to a public inquiry—the Commissioner; or

(b) in relation to any other investigation into misconduct or maladministration in public administration—

(i) the Commissioner; or

(ii) the Deputy Commissioner; or

(iii) an examiner appointed by the Commissioner.

Amendment No 16 [Maher–1]—

Page 11, after line 26 [clause 17, inserted Schedule 3A, clause 1]—

After the present contents of clause 1 (now to be designated as subclause (1)) insert:

(2) An examiner appointed by the Commissioner must be a legal practitioner.

This is not strictly consequential on the successful passage of amendment No. 12, where the committee determined that the commissioner must head a public inquiry, but it follows on from that. With the commissioner heading a public inquiry, the bulk of the work of an inquiry in public will be the examinations, so this just makes it abundantly clear that not only does the commissioner head the inquiry but when those examinations are taking place the commissioner must be, for public inquiries, the examiner.

The Hon. C. BONAROS: It is my understanding that amendments Nos 15 and 16 are as a result of the passage of amendment No. 12 and as such, given our support of amendment No. 12, for the record we will support amendments Nos 15 and 16.

The Hon. M.C. PARNELL: The Greens are supporting amendments Nos 15 and 16.

The Hon. J.A. DARLEY: I will be supporting amendments Nos 15 and 16.

The Hon. R.I. LUCAS: I am a realist: whilst we are opposing it, I accept the will of the majority.

Amendments carried.

The Hon. K.J. MAHER: I move:

Amendment No 17 [Maher–1]—

Page 11, lines 30 and 31 [clause 17, inserted Schedule 3A, clause 2(1)]—

Delete 'if the Commissioner is satisfied that it is in the public interest to do so' and substitute:

subject to subclause (2)

Amendment No 18 [Maher–1]—

Page 11, line 32 to page 12, line 6 [clause 17, inserted Schedule 3A, clause 2(2)]—

Delete subclause (2) and substitute:

(2) The Commissioner may not conduct a public inquiry unless the Commissioner determines, on reasonable grounds, that—

(a) there are exceptional circumstances; and

(b) it is in the public interest to hold the public inquiry; and

(c) the public inquiry can be held without causing unreasonable damage to a person's reputation, safety or wellbeing.

(2a) For the purposes of subclause (2)(b), the factors the Commissioner may take into account in determining whether or not it is in the public interest to hold a public inquiry include, but are not limited to, the following:

(a) the possible extent of the misconduct or maladministration in public administration being investigated;

(b) the seriousness of the misconduct or maladministration in public administration being investigated;

(c) the benefit of exposing to the public, and making it aware of, the misconduct or maladministration in public administration.

(2b) At least 28 days before a public inquiry is commenced, the Commissioner must provide to each person that the Commissioner thinks might reasonably be expected to be required to give evidence in the inquiry, written notice—

(a) specifying that the Commissioner intends to conduct a public inquiry; and

(b) identifying the matter that is to be the subject of the public inquiry; and

(c) setting out the basis on which the Commissioner has determined that it is in the public interest to conduct the public inquiry; and

(d) inviting the person to make submissions to the Commissioner, within a reasonable period specified in the notice, in relation to the determination to conduct the public inquiry.

This needs to be read in conjunction with amendment No. 18, which is consequential, so I will speak to amendments Nos 17 and 18 together, as I have for a couple in the past. This gives further effect to not only recommendations of the CPIP Committee but to some of the recommendations and evidence that was before the CPIP Committee.

What this does, amongst other things, is import, largely from Victoria, the grounds on which the commissioner may hold a public inquiry. If it is in the public interest to do so I think it is the only ground that is currently in the bill as to whether it should be considered to be a public inquiry. There are a number of things the commissioner must consider in his decision as to whether it is in the public interest but they are subordinate to the public interest and merely make up elements of what the legislation as it currently stands says is in the public interest.

What we say here is that, yes, one of the criteria should be that it is in the public interest. Another criteria that is separate from, and not subordinate to, the public interest is 'can be held without causing unreasonable damage to a person's reputation, safety or wellbeing', and also that there are exceptional circumstances. That is one part of this amendment.

The other main part of this amendment is a requirement that, if there is a public inquiry, at least 28 days before the inquiry has commenced the commissioner must provide to each person the commissioner might reasonably expect to be required to give evidence written notice specifying certain things. One of the criticisms the commissioner has made is: what happens if, during the course of an inquiry, there are further witnesses who may come up that were not known about at the start? The very simple answer to that is that it would be covered because this only applies to notices being given to persons the commissioner thinks might reasonably be expected to be required to give evidence to the inquiry.

In those cases where as you are going along some new things come up and you want to have new witnesses, if you did not reasonably know at the time you started that you should have given that person notice then this section does not have any work to do and does not apply.

The Hon. R.I. LUCAS: As I understand it, the Hon. Mr Maher has spoken to both amendments Nos 17 and 18. Certainly the government's position in relation to amendment No. 18, and even more strongly when we come to amendments Nos 24 and 29, we see as the more significant amendments that the Leader of the Opposition is seeking to move. My advice is that amendments Nos 24 and 29 are the ones principally which would lead the commission, if they were passed successfully, to take the view that not only would he not have public hearings but he would not be able to have private inquiries into misconduct and maladministration.

The commissioner feels very strongly about amendment No. 18 and so, too, does the government in relation to placing overly onerous requirements and potentially problematic requirements in relation to the way that he would need to go about his task in terms of inquiries into misconduct and maladministration. In my lengthy earlier statements to Maher amendment No. 1, I outlined the government's reasons why we are strongly opposed.

I will need to take advice in a minute as to whether we see a testing of the committee's views by way of division potentially on amendment No. 18. I am not sure whether it is more appropriate to do it on No. 18 or No. 17; No. 18 is the one which is substantive as we see it, although the Hon. Mr Maher has spoken to them as a package. I would highlight the fact that if we were unsuccessful on the voices we would test the will of the committee by way of division on clause 24 as a fundamental test of the potentially differing views in the chamber on that critical issue as well.

The Hon. M.C. PARNELL: I will speak to amendment No. 18 but amendment No.17 is consequential so I am effectively speaking to both. Amendment No. 18 has two main aspects, as the Leader of the Opposition has pointed out. One is to put on a pedestal, if you like, the idea of exceptional circumstances as being a standalone test in addition to the other things that the commissioner must take into account, such as whether it is in the public interest and whether the inquiry can be held in public without causing unreasonable damage to a person's reputation, safety or wellbeing.

My assessment is that with the amendments that we are passing, the ones we have passed to date, there will not be public hearings unless there are exceptional circumstances; in fact, if we take the commissioner at his word there will not be public hearings at all. I am nervous about having exceptional circumstances as a standalone criteria. I do not know what it means. It would be a very difficult thing, I think, to define and that means that it will be difficult to defend and that means that it will very likely be subject to legal challenge. We already have appeal rights that are in here and the big test there will be in relation to the weighing up of public interest and private interest. I do not support that part of amendment No. 18 that seeks to put the concept of exceptional circumstances on a pedestal as a standalone criteria.

The second part of amendment No. 18 relates to the personal notification to potential witnesses. As I said in relation to an earlier amendment, the commissioner is already going to be advertising on the website and in the newspaper. The vast majority of people who are likely to be called are going to know about it, so I do not think that this personal invitation process is necessary, I think it just adds an unnecessary level of complexity.

I have tried to think of some examples where it might be valid; for example, where a person has left the employ of a government agency and they are grey nomading around North Queensland or something and do not read The Advertiser and, heaven help us, some people still do not read the Government Gazette or look at the commissioner's website. But, if we are going to be fair dinkum about it, I think people who know about it are going to know about it. They have the opportunity to appeal and I do not think we need to have an extra provision that requires direct notification of anyone who might reasonably be expected to be required to give evidence. So on both parts of amendment No. 18, the Greens will not be supporting it, and we will not be supporting amendment No. 17, which is consequential.

The Hon. J.A. DARLEY: For the record, I will not be supporting amendment No. 18 and, consequently, not amendment No. 17 either.

The Hon. C. BONAROS: Once again, I think the Hon. Mark Parnell has hit the nail on the head. In terms of the notification requirements, they are extremely onerous. They do apply to any person who the commissioner thinks might reasonably be expected to be required to give evidence. That could be a potentially extensive list and then, of course, we have the issue of exceptional circumstances not being defined and being placed above the primary threshold test that we currently have, and that we are all probably very familiar with in terms of the public interest test. So our position would be to continue to support the public interest test above all else and not support the amendment proposed by the opposition.

Amendments negatived.

The Hon. J.A. DARLEY: I move:

Amendment No 2 [Darley–1]—

Page 12, line 7 [clause 17, inserted Schedule 3A, clause 2(3)]—Delete 'At least' and substitute:

Subject to subclause (3a), at least

Amendment No 3 [Darley–1]—

Page 12, after line 16 [clause 17, inserted Schedule 3A, clause 2]—After subclause (3) insert:

(3a) The Commissioner is not required to include matter in a notice under subclause (3) if the Commissioner is of the opinion that inclusion of the matter may prejudice the investigation or unduly prejudice the reputation of a person.

I indicate that I am speaking to Darley amendments Nos 2 and 3 together as they are related. The bill currently outlines that 21 days prior to a public inquiry the commissioner must publish information such as the subject and the basis for the public inquiry. My amendment will clarify that in the publishing of this notice, the commissioner is not required to disclose any information that they feel would prejudice the investigation or the reputation of a person.

The commissioner is concerned that the mandatory requirement to disclose certain information may influence the recollection of a witness or that evidence may be destroyed, altered or fabricated. This amendment will give the commissioner the discretion to be able to withhold information if they believe releasing it may prejudice the investigation or individuals.

The Hon. R.I. LUCAS: For the benefit of the committee, the government supports amendment No. 2 [Darley-1] and amendment No. 3 [Darley-1] which he has just moved. The bill currently proposes at clause 2(3) of schedule 3A that at least 21 days before a public inquiry is commenced, the commissioner must publish, on a website, and in a newspaper, a written notice stating the commissioner's intention to conduct a public inquiry, identifying the matter that is to be the subject of the public inquiry and setting out the basis on which the commissioner is satisfied that it is in the public interest to hold a public inquiry.

The provision in the bill proposes to address the concerns identified by the Crime and Public Integrity Policy Committee and its reasons for part of recommendation 2, which would require the commissioner to provide written notice to affected parties. The government has taken a different approach with its amendment but still addressing the fundamental concern that persons affected have adequate notice.

The amendments being moved by the Hon. Mr Darley will provide that the commissioner is not required to include the matter in a notice if the commissioner is of the opinion that the inclusion of the matter would prejudice the investigation or unduly prejudice the reputation of the person. The government will not oppose this change on the basis that it clarifies that the commissioner need not prejudice the investigation or reputations through the content of the published notice.

The Hon. K.J. MAHER: I rise to indicate that the opposition will not be supporting the amendment.

The Hon. M.C. PARNELL: When I looked at this amendment, I wondered whether it was necessary. The minister read out the things that need to be published in the advertisement and I cannot see in that list anything that is going to require the commissioner to publish prejudicial information. It is pretty basic stuff.

Firstly, the commissioner has to say, 'I am going to hold a public hearing,' and that is all he has to say. Secondly, he has to say what it is about, the subject matter, the agency and that it is maladministration in this area or that area. He is not going to be putting all the detail in the ad in the paper. Thirdly, he has to set out the basis on which the commission is satisfied that it is in the public interest. Well, it is in the public interest because it is a government agency and there is lots of public money involved.

I cannot see the commissioner being bound by this provision to prejudice her or his own inquiry. I think the commissioner will be able to safely publish without having to shoot herself or himself in the foot, so I do not think the Hon. John Darley's amendment is necessary.

The Hon. C. BONAROS: We also do not support the Darley amendments. Following on from what the Hon. Mark Parnell has said, it creates an issue whereby information may be left out that would otherwise be included, and that is of concern. For those reasons, we will not be supporting the amendment.

Amendments negatived.

The Hon. K.J. MAHER: I move:

Amendment No 19 [Maher–1]—

Page 12, after line 24 [clause 17, inserted Schedule 3A, clause 2]—After subclause (5) insert:

(6) The Commissioner may not make a determination to conduct a public inquiry for the purposes of an investigation in accordance with this clause if witnesses have already been examined, or summoned to appear before an examiner, for the purposes of the investigation.

(7) The Commissioner may, at any time, revoke a determination to conduct a public inquiry and may continue the investigation in private (however, in such a case, this Schedule will apply in relation to any witness examinations conducted for the purpose of the investigation as if the examinations were being conducted in public).

Again, it is not strictly consequential but it does flow from amendments we have previously passed today. It says that when a determination is made to hold a public inquiry, it needs to be made before witnesses are examined. This makes sense, given the amendments we have passed which have different requirements on the examination if it is a public or a private hearing, particularly on the fact that it must be the commissioner themselves doing the examinations at a public hearing.

It would be an odd thing if you started an inquiry and then changed the conditions that the inquiry was being held under by virtue of the amendments we have already passed. There are further amendments to come in the very near future that might differentiate the way a public hearing or a private hearing is held. We think this is a sensible amendment that essentially has all the examinations being conducted under the same scheme and rules.

The Hon. M.C. PARNELL: Whilst the Greens will be supporting some of the later amendments that distinguish the way public and private hearings are held, we are not supporting this particular one because it prevents the commissioner from swapping, for example, from a closed hearing to an open hearing.

The scenario that I can envisage would be when the commissioner in a closed hearing hears the first couple of witnesses, falls off her chair with the gravity of what has been presented and decides, 'I really need to do this in public.' Of course, if they form that conclusion, then all those checks and balances we have already agreed on—the ad, the appeal rights—all kick in. It is not as if they somehow evaporate simply because it started as a closed hearing and morphed into an open hearing, so I want to give the commissioner that discretion to change it.

It would be rare that they would do it, but I think keeping that option open is sensible. As the commissioner has often said, it is an inquiry and, until you have started your inquiry, you do not know what you are going to find. If they do find something where it is clearly in the public interest for it to be opened up, then I want the commissioner to have that power. We will be opposing this amendment.

The Hon. R.I. LUCAS: For the reasons outlined at the outset, the government will be opposing this amendment.

The Hon. C. BONAROS: I do not think that we need to say any more than 'Oakden' in relation to this inquiry as a reason why it ought to be opposed. The situation that has just been highlighted again by members is that the commissioner will be limited in swapping to a public hearing if witnesses have already been examined in private investigations and the investigation has already commenced.

As I understand it, the commissioner will be able to swap to a private hearing from a public hearing, but then the public hearing protections will apply to the private hearing; that is the other issue. We have already said that some of those protections will not apply in the case of private hearings but, again, I think that Oakden is the only illustration we need as to why the commissioner ought not be limited in his powers in the way that is being proposed by the opposition.

The Hon. J.A. DARLEY: I will be opposing amendment No. 19 [Maher-1].

Amendment negatived.

The Hon. K.J. MAHER: I indicate that amendment No. 1 [Maher-3] is also filed as amendment No. 20 [Maher-1]. I indicate that I will not be moving amendment No. 20 [Maher-1] but I will be moving amendment No. 1 [Maher-3]. I move:

Amendment No 1 [Maher–3]—

Page 13, lines 23 to 27 [clause 17, inserted Schedule 3A, clause 4]—Delete clause 4 and substitute:

4—Procedure and evidence

(1) Subject to this Schedule, the person heading an investigation may conduct the investigation as they see fit, provided that they act in accordance with the principles of procedural fairness.

(2) In the case of a public inquiry, an examination of a witness must be conducted in accordance with the rules of evidence and the practices and procedures applicable to a witness giving evidence in summary proceedings in the Magistrates Court.

(3) For the avoidance of doubt, nothing in this clause affects any other requirement to act in accordance with the principles of procedural fairness for the purposes of this Act or any other Act.

This amendment provides that, where there is a hearing that is either a public or a private hearing, the principles of natural fairness apply. This is something that I think the commissioner has stated almost certainly applies, in the commissioner's view, to public or private hearings in any event, so it does absolutely no harm to make it absolutely certain.

The third part of the amendment makes it very clear, for the avoidance of doubt, that nothing in the clause affects any other requirement to act in accordance with the principles of procedural fairness. It ensures that procedural fairness applies to hearings where the commissioner has said it probably applies in any event, and it specifically says that nothing is taken away by saying that procedural fairness applies to those principles.

In regard to the second part, in the case of a public inquiry where examinations of witnesses have taken place, we have already had amendments successfully passed that those examinations must be conducted by the commissioner, given the importance this committee has attached to public hearings, the gravity of the hearings and the potential damage that could be done to a person's reputation. So when the commissioner is conducting public hearings—and this is only for public hearings—the rules of evidence and the practices and procedures applicable to witnesses giving evidence in summary proceedings in the Magistrates Court apply.

For absolute clarity, I point out that in the amendment that I am moving the rules of evidence and the Magistrates Court summary proceedings practices and procedures do not apply to private hearings; this is only for public hearings.

The Hon. R.I. LUCAS: For the record, the government opposes this particular amendment as well. I am advised that there are two separate issues, broadly, in this, namely, that subclauses (1) and (3) generally cover the same issue. The Leader of the Opposition has characterised, in broad terms, the view of the commissioner, as I understand it, in a not unreasonable way, that is, that it is potentially not of significance in terms of the way he might administer the legislation. However, subclause (2) is significant in the commissioner's view and in the government's view as well.

I placed on the record earlier the government's concerns. This would be one of the key provisions that would lead the commissioner, if it were successful, not to hold a public hearing. For those members who are supportive of public hearings of the ICAC, subclause (2) of this particular provision, on the basis of the evidence the commissioner has given, would indicate this would be one provisions that would lead him to come to a conclusion to say he would not have a public inquiry or public hearing.

For members, in considering whether or not they support the whole of clause 4, it is a mixture of two things. Clauses 4(1) and 4(3), even in the Leader of the Opposition's view, do not really add much to the current situation, but clause 4(2) is significant in and of itself. Therefore, members will need to be aware, if they are going to support this amendment, that this is one of the amendments that will lead the commissioner to make a judgement that there will not or might not be public hearings of ICAC, should it be successful.

The Hon. M.C. PARNELL: I informed the Leader of the Opposition some time ago that the Greens were not going to support amendment No. 20 [Maher-1]. The reason for that is that we did not feel that the Magistrates Court rules of evidence ought to apply to private inquiries and investigations. This amendment that has come back now, amendment No. 1 [Maher-3], fixes that problem and makes clear that the rules of evidence apply only to public hearings.

I appreciate fully what the minister has said. The commissioner has said that this a serious problem and it would go to the commissioner's assessment about whether it is worth doing a public hearing. I completely understand that but, as I said before, I am not persuaded by this idea that just because it is an inquiry it is that much different to a trial held in a public court. They are very similar creatures in terms of the way they are perceived by the public and also in relation to the damage that can be done to reputations.

I see that this amendment will probably weigh on the commissioner and make it less likely, rather than more likely, in some cases, that a public hearing be held. Thereby, it fits the exceptional circumstances test that the opposition was keen to get inserted before. I do not think we need to insert it; I think this does part of that. I do not want to pretend that we have somehow misunderstood this, but I think that public hearings are such a significant issue that it is not unreasonable for the rules of evidence to be required to be applied. If the commissioner is determined not to apply the rules of evidence, then the commission can have the hearing in private and they are bound by the lesser standard of procedural fairness. The Greens will be supporting this amendment.

The Hon. C. BONAROS: We accept that ICAC is not a court, but public hearings, as we have just heard and as I am sure we all know, are in reality more akin to trial conditions. As the opposition leader has indicated, this amendment is limited to public hearings and does not apply to private hearings, so there is always the choice if the commissioner is concerned in terms of holding these hearings in private.

I will just point to a number of cases that we have seen. The one that comes to mind first is the Cunneen case. There has been a lot of commentary about people being effectively annihilated in some of these inquiries. It is not something that we necessarily talk about openly, but there has certainly been media coverage of a number of inquiries that have taken place here and of the Cunneen one interstate, which would indicate that these are conducted very much like a trial. Therefore, the rules of evidence should apply when those cases are conducted in public.

We understand what the commissioner has said, but I think it is also worth noting here the very strong advice that we have received from the Law Society and the bar. Both have been extremely strong in their views, both in relation to procedural fairness and in relation to rules of evidence applying when those matters are considered in public hearings.

Just in relation to procedural fairness, I think the Law Society's submission pretty much covers it when they say that it is one matter to not be bound by the rules of evidence and procedure, but it is quite another to conduct a hearing as one thinks fit and regardless of those rules. Again, we are talking about public hearings. Whilst I respect the views that the commissioner has put forward in relation to those, again, we were not attracted to the first version, but given those changes have been made and this is applicable only to those cases that are heard publicly, then it is our position that we ought to have procedural fairness enshrined in the legislation and that rules of evidence ought to apply as well.

The Hon. F. PANGALLO: I concur with what the Hon. Connie Bonaros has just said and also the Hon. Mark Parnell. We have to understand that public hearings of ICAC are taking this to a whole new level. It should be about protecting the rights and reputations of those accused. You have to take that into serious consideration when you are having a public hearing. We do not know what goes on in a private hearing. We do not know how the commissioner conducts himself. We do not know what happens to the accused. It is all very secretive. In a public situation, it is entirely different.

It was the view of the committee, after the first bill was referred to the committee, and it is enshrined in some parts of this legislation, that procedural fairness needs to be accorded and the accused need to be provided with an opportunity to be able to defend themselves, even if it means adopting the rules of evidence.

I do not know why the commissioner is against that. What is wrong with having the rules of evidence apply to the public hearing? I do not understand that. One of the witnesses to the inquiry was Michael Abbott QC. He gave us an insight of what can happen in a hearing. His description was that it is a trial by ambush. This is what we do not want in a public hearing situation, where suddenly the accused will be almost ambushed without having any due consideration of their rights and the rules of evidence.

We need to bear in mind that consideration to reputational damage should be paramount in this situation, which is why we support amendment No. 20.

The Hon. J.A. DARLEY: For the record, I support amendment No. 1 [Maher-3].

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 21 [Maher–1]—

Page 13, after line 27 [clause 17, inserted Schedule 3A]—After clause 4 insert:

4A—Right to present evidence at public inquiry

A person who gives evidence as a witness in a public inquiry is entitled to call and present evidence relevant to the investigation (including by calling witnesses or presenting evidence by affidavit) and to make submissions to the person heading the investigation.

This amendment relates only to public hearings and it provides that witnesses who have given evidence are entitled to call their own witnesses. Again, this goes to much of what was being spoken of in the last amendment. Public hearings are quite a big step to take, where people's reputations are on the line. It allows people who feel that they need to have their reputation restored because they have been unfairly maligned to do that by the possibility of calling their own witnesses.

The Hon. C. BONAROS: As the opposition leader just indicated, this applies only to public inquiries. I think it is a natural extension of the previous amendment that we have just agreed to that, if you are going to hold these inquiries in public, if the rules of evidence and procedural fairness are going to apply, then you would assume also that those individuals who are before the commissioner would have the ability to call witnesses and to give evidence and present evidence, perhaps in support of them. Certainly, that is a natural flow from the previous amendment that we have just moved in terms of having those rules of evidence and procedural fairness apply. For those reasons, we support amendment No. 21.

The Hon. R.I. LUCAS: For the record, I did address this in the earlier comments that I made at [Maher-1]. The government position is to strongly oppose this amendment.

The Hon. M.C. PARNELL: To assist the committee, because it is getting on, I am going to put on the record now that we will be supporting Maher amendments Nos 21, 22 and 23. I will speak more about 24 when we get to it. They relate to the ability of people to present their own evidence, to have their lawyers, to have their lawyers present when other witnesses are giving evidence. These are a suite of procedural protections that we think should apply in public hearings. So we will be supporting amendments Nos 21, 22 and 23.

The Hon. J.A. DARLEY: I will be supporting amendment No. 21 [Maher-1].

The CHAIR: Given the late hour, can I have an indication from members whether they are supporting amendments Nos 22 and 23, as the Hon. Mr Parnell has done?

The Hon. C. BONAROS: SA-Best will not be supporting amendment No. 22 but we will be supporting amendment No. 23.

The CHAIR: Given that there is a divergence of views, I will put the question that amendment No. 21 [Maher-1] be agreed to.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 22 [Maher–1]—

Page 13, lines 29 to 35 [clause 17, inserted Schedule 3A, clause 5(1)]—

Delete subclause (1) and substitute:

(1) The person heading an investigation into misconduct or maladministration in public administration—

(a) must allow a person who has been called as a witness by another witness in a public inquiry held for the purposes of the investigation (in accordance with clause 4A) to appear at the public inquiry as such a witness; and

(b) may, if satisfied that special circumstances exist, allow any other person to appear at any public inquiry held for the purposes of the investigation or to otherwise make submissions for the purposes of the investigation despite the fact that the person has not been required to give evidence at an examination.

Amendment No 23 [Maher–1]—

Page 13, after line 42 [clause 17, inserted Schedule 3A, clause 5]—After subclause (3) insert:

(3a) A person who is required to give evidence at an examination held as part of a public inquiry may also be represented by a legal practitioner at any other examination of a person held for the purposes of the public inquiry.

When being drafted, we considered this consequential—and I think parliamentary counsel is nodding their heads—on the passage of the previous amendment in terms of how to give effect to the previous amendment. In drafting, it is consequential, but the material in paragraph (a) is the new bit that has been added to make sure that, when a witness is called by another witness to give evidence, they are entitled to appear at the proceedings. It gives effect to the previous amendment. There are furious nods from those who I think can help out with that.

The Hon. C. BONAROS: That is the case, yes. We will support amendments Nos 21 through to 23.

The Hon. J.A. DARLEY: I am also supporting amendments Nos 21, 22 and 23.

Amendments carried.

The Hon. K.J. MAHER: I move:

Amendment No 24 [Maher–1]—

Page 15, after line 7 [clause 17, inserted Schedule 3A]—After clause 8 insert:

8A—Right to refuse to participate in investigation

(1) If allegations of potential misconduct or maladministration in public administration are made against a person and an investigation is to be conducted under this Act in relation to the matter—

(a) the person heading the investigation must (without derogating from clause 4 of this Schedule), ensure that the person is aware of those allegations before any power is exercised under this Schedule to compel the person to attend an examination, answer a question, provide information or produce a document or thing; and

(b) the person against whom the allegations have been made is entitled to refuse to participate in the investigation (despite any other provision of this Act).

(2) A person who intends to refuse to participate in an investigation may give notice in writing of that intention to the person heading the investigation and, on giving such notice, the person may not be required to attend any examination, answer any question, provide information or produce a document or thing under this Schedule.

(3) The fact that a person has refused to participate in an investigation in accordance with this clause is not admissible in evidence against the person in any civil or criminal proceedings in any court.

This amendment, in effect, gives a person the right to not participate in an investigation. This is very similar to what happens in investigations conducted in criminal matters by the police but more particularly in what happens in trial conditions. At an investigation stage by police, an accused can refuse to answer any questions they choose. They can choose to not answer a particular question, they can answer some questions. They have the right to not answer questions.

When it comes to the trial process, of course the defendant can refuse to give evidence in their own defence. That happens frequently, but at trial, if you do not give evidence in your own defence, obviously you cannot put forward things that may be favourable to you. We do not think this is unreasonable. In the criminal justice system, every day of the week people are charged, prosecuted and convicted. This is not a hindrance to the truth being found and for verdicts being reached in the criminal justice system. Given the gravity of what may occur with someone before a public hearing, we think this is a reasonable amendment.

The Hon. R.I. LUCAS: As I indicated, the government strongly opposes this particular provision and will, if we lose it on the voices, test it by way of division because this is fundamental to the bill. This is the key test clause for the commissioner's view that this does not just impinge on the issue of whether or not you have public hearings. If this amendment passes, to all intents and purposes he is saying that you may as well revisit the whole ICAC; that is, it would destroy the whole purpose of having an ICAC, he would not be able to have a private or a public hearing into misconduct or maladministration issues. So, Mr Chairman, this is fundamental. I hope it loses on the voices, but if it does not, we will seek to divide.

The Hon. C. BONAROS: Can I start by saying that SA-Best has always taken a position very strongly in terms of fostering the right to refuse to participate. I think the example that I was thinking of, when I was trying to think of less significant legislation, was the Natural Resources Management Act and when we sought to include these provisions. We are dealing with something, I would say, a lot more significant in this instance.

However, sadly, I think the opposition will be disappointed to hear that we will not be supporting this amendment because, as the Treasurer has pointed out, it effectively diminishes the role of the ICAC entirely. I think it is also very important to point out that the amendment that is being proposed does not just mean that it is the person who is being investigated who can refuse: it is absolutely anybody involved who can refuse, and that is very concerning.

I think it is also important to note that we do have the right to not self-incriminate. If you are prosecuted as a result of an investigation by the commissioner, your right not to participate will kick in, so that is an important consideration. The material, of course, provided through ICAC, will not be able to be used to incriminate an individual in those circumstances. So whilst generally we would say, yes, we agree with the sentiment expressed by the opposition leader in terms of retaining the right to refuse, in this instance it really diminishes the commissioner's powers to such an extent that I think it renders the investigations fruitless. On that basis, we will be supporting the government and opposing the amendment proposed by the opposition leader.

The Hon. J.A. DARLEY: I indicate that I will be opposing amendment No. 24 [Maher-1].

The Hon. M.C. PARNELL: I will see where the numbers lie with this one, but I will just point out that there are two related protections: there is the right to not incriminate yourself, or the right against self-incrimination, which is in the bill—so you do not have to answer those questions—and then there is the more general right of silence or the right not to participate.

As the Leader of the Opposition pointed out, the criminal justice system functions quite well with both of those rights being in place—the truth is still found out, but people are not obliged to participate if they do not want to. Whether that is a defendant not giving evidence on their own behalf or other witnesses not wanting to participate, it is not necessarily a barrier to justice being served.

The Greens are inclined to support this amendment, but we can see that the numbers are against us. What I would say in relation to the right against self-incrimination is that it can be illusory because, unless it is accompanied by the right of silence, questions that you answer, or are forced to answer, that might not directly incriminate you, can, through a backdoor method, result in you losing the right against self-incrimination, so the two things are linked together.

The Hon. K.J. MAHER: Taking into account some of the debate that has occurred, I understand the reluctance of some members to support something that applies to both public and private investigations, given the commissioner's view that, if it applies to both public and private investigations, the commissioner says that effectively that might stuff up doing any investigations at all.

I might seek to move this in an amended form to put a further clause 4 in that would read, 'This clause only applies if a public inquiry is to be conducted for the purpose of investigation.' It would be a little like we did before, thereby limiting this, so if it is a private investigation, you do not have the right not to participate, but if it is a public investigation, much more akin to a trial process, which a lot of the discussion has been about, you do have the right not to participate. So do I seek leave, Mr Chairman?

The CHAIR: Just bear with me, Leader of the Opposition. If we are going to proceed, Treasurer, I am going to have to come out of committee for the motion.

The Hon. R.I. LUCAS: If the leader is going to move an amendment on the run like that, then I think we would report progress. If we were going to vote on this particular provision and leave it to between the houses, then we only have a few more amendments to do, and I would like to proceed.

The Hon. K.J. MAHER: I would not mind testing it in the amended form. We might be able to test it quickly.

The Hon. R.I. LUCAS: But if you are going to move an amended form, I do not propose that this committee should address an amended form on something as important as this without the opportunity to take advice in relation to the issue. So if that is your proposal—I presume you are intending to do that—

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: The government would like to consider its position and put an argument if it is likely to pass—

The Hon. K.J. MAHER: I hear you. I am suggesting SA-Best might have a view. If they are inclined not to support the amended form, then we can just keep going on.

The Hon. C. BONAROS: Yes, but our position would be not to support the amendment even in its amended form.

Sitting extended beyond 18:30 on motion of Hon. R.I. Lucas.

The CHAIR: We are now at amendment No. 24 [Maher-1], which has been moved by the Hon. Kyam Maher. Do you wish to move your further amendment, Leader of the Opposition?

The Hon. K.J. MAHER: No.

Amendment negatived.

The Hon. K.J. MAHER: I move:

Amendment No 25 [Maher–1]—

Page 15, lines 13 and 14 [clause 17, inserted Schedule 3A, clause 9(2)]—Delete subclause (2)

This is consequential on the successful passage of amendment No. 20 earlier. Sorry, it would have been consequential if certain other events had happened earlier in committee; it is no longer needed, so I will not be moving amendment No. 25 [Maher-1].

The CHAIR: So do you seek leave to withdraw?

The Hon. K.J. MAHER: Yes, sir.

Leave granted; amendment withdrawn.

The Hon. K.J. MAHER: I move:

Amendment No 26 [Maher–1]—

Page 15, lines 22 and 23 [clause 17, inserted Schedule 3A, clause 9(3)]—

Delete ', so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers' and substitute:

examine or cross-examine any witness on any matter

This comes about as a result of evidence given to the Crime and Public Integrity Policy Committee. It removes the restrictions placed on legal representatives examining witnesses and is broadly in line with some of the other amendments we have passed about the rights of people and their legal representatives.

The Hon. R.I. LUCAS: The government opposes the amendment.

The Hon. M.C. PARNELL: The Greens support it.

The Hon. J.A. DARLEY: I will be opposing this amendment.

The Hon. C. BONAROS: We are opposing this amendment.

Amendment negatived.

The Hon. K.J. MAHER: I move:

Amendment No 27 [Maher–1]—

Page 15, after line 24 [clause 17, inserted Schedule 3A, clause 9]—After subclause (3) insert:

(3a) A legal practitioner representing a person at an examination has—

(a) the same rights in examining and cross-examining witnesses and making submissions to the person heading the investigation; and

(b) the same professional obligations,

as if the legal practitioner were representing the person in summary proceedings in the Magistrates Court.

This amendment allows legal practitioners representing persons at an examination having the same rights in cross-examination as they do in summary proceedings in the Magistrates Court. Importantly, we think, it also imposes the same professional obligations.

The Hon. R.I. LUCAS: The government opposes the amendment.

The Hon. C. BONAROS: We are supporting this amendment.

The Hon. M.C. PARNELL: Supporting.

The Hon. J.A. DARLEY: I will be opposing the amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 28 [Maher–1]—

Page 15, after line 31 [clause 17, inserted Schedule 3A, clause 10]—After subclause (1) insert:

(1a) Before issuing a summons under subclause (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so.

(1b) The examiner must also record in writing the reasons for the issue of the summons.

(1c) A summons under subclause (1) requiring a person to appear before an examiner must—

(a) set out, so far as is reasonably practicable, why the person is being summoned and the general nature of the matters in relation to which the examiner intends to question the person; and

(b) specify whether the examination will be conducted in public or in private,

but nothing in this subclause prevents the examiner from questioning the person in relation to any matter that relates to an investigation into misconduct or maladministration in public administration.

This amendment requires additional requirements for a summons that is issued in relation to a public inquiry. Again, it comes about particularly as a result of submissions to the CPIPC and evidence taken at the CPIPC, so that a person has an understanding of why they are being summonsed and what will be put to them.

The Hon. R.I. LUCAS: The government opposes the amendment.

The Hon. C. BONAROS: We will be supporting this amendment.

The Hon. M.C. PARNELL: Support.

The Hon. J.A. DARLEY: I will be opposing it.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 29 [Maher–1]—

Page 16, after line 4 [clause 17, inserted Schedule 3A]—After clause 10 insert:

10A—Disclosure requirements for public examinations

If a person has been summoned to appear at a public examination for the purposes of an investigation into misconduct or maladministration in public administration, the Commissioner must ensure that, at least 28 days before the date appointed for the examination, the person has been provided with a disclosure statement setting out—

(a) a summary of the allegations that are the subject of the investigation; and

(b) a description of the evidence or information that has been obtained by the Commissioner for the purposes of the investigation; and

(c) a list of the other people to be examined in the course of the investigation and, in relation to each such person, information as to why the person is being examined and the general nature of the matters in relation to which the examiner intends to question the person.

This amendment applies only to public hearings. I appreciate that the fact that it only applies to public hearings has been an issue for members in determining their support for some of these amendments. I think the Treasurer has previously outlined that the commissioner had thought that some areas that applied to public and private hearings could mean that it makes it very hard for the commissioner to hold any inquiries. I want to make it clear that this applies only to public hearings.

There has been discussion during the committee stage about the difference between public and private hearings. I think a good analogy was made in the criminal justice process that private hearings are more akin to a police investigation. That is, they happen behind closed doors and rules of evidence do not apply. In addition, as was the point raised by the Hon. Mark Parnell, a person's reputation has a much greater chance of being damaged in the public eye, appearing for days on end on the front page of newspapers when allegations have been made, whether or not they are sustained at the end of a public hearing.

As with a police investigation, a private hearing will not be affected by this. A private hearing does not have these disclosure requirements. What this does mean, however, is that at a public hearing, which we have discussed a number of times and I think correctly characterised is much more like a criminal trial, there are certain requirements for disclosure. At all trials, particularly criminal trials, there are onerous requirements on the prosecution to provide details of what is being alleged so that a person of interest—and in the case of a criminal trial, once it gets to that stage, a defendant—has some idea of the case that is being put against them in order to defend themselves.

What this does is require—again, only if it is a public hearing—that certain information be provided, particularly a summary of the allegations that are the subject of the investigation, a description of the evidence or information that has been obtained, and a list of the other people to be examined.

This is no more onerous at all than the disclosure that prosecutions are required to make at a criminal trial. It gives someone who is the subject of a public investigation a reasonable chance to make sure that they can defend themselves against the allegations that will be put to them publicly. As the Hon. Mark Parnell pointed out and I will reiterate, they might end up being run on the front page of newspapers, leading new stories, on the TV every night. It puts them in a position where they can have a reasonable chance of defending themselves.

It is possible, without this amendment, that you could be surprised by what is put to you at these hearings without any possibility of knowing these allegations and without any possibility at the time of having any way of defending yourself. We do not allow that at criminal trials because it has been deemed unfair, over the centuries that the legal system has developed, to do that sort of trial by surprise ambush, so we think it is only reasonable that in this case, at a public hearing and a public hearing only, there is that basic level of information that is provided to someone.

The Hon. R.I. LUCAS: Again, this is an important amendment and the government strongly opposes it. I just want to quote the four paragraphs from the commissioner's letter so that, if members do support this, they understand what it is that they are supporting. The commissioner says:

This proposal is extraordinary. It would impose upon the Commissioner an obligation that would be so onerous as to make the task impossible.

Moreover it would forewarn every witness about any matter that the witness might be examined upon for the purpose of the investigation.

Apart from all of the other proposals in the Maher Amendments which would hinder an investigation into serious or systemic misconduct or maladministration this proposal alone if it were adopted would mean that no Commissioner could proceed to hold a public hearing because the purpose of the hearing would be thwarted by the obligation included in clause 10A and the investigation would become so burdensome as to make it impossible to continue with that investigation.

The proposal is not only directed to the person of interest but any witness most of whom are summoned to assist in an investigation into the conduct of someone else.

For those reasons, the government is strongly opposing this. As I said earlier, this is one of the key amendments that, if members support it, they need to do so in the clear knowledge of what the commissioner has said and the high likelihood that it will mean the end of any public hearings, other than in name only, in terms of potentially being there.

The Hon. M.C. PARNELL: I took very seriously what the commissioner had to say in relation to this amendment, as the Treasurer has just read out. It does impose very onerous obligations on the commissioner ahead of summonsing witnesses to a public hearing. Depending on how advanced the hearing is, the amount of information would vary a great deal. A witness who was called very late in the piece presumably would be given hundreds of pages of documents showing the evidence that had already been called to date.

Whilst I have said that a public hearing is more akin to a criminal trial than a behind closed doors investigation, I have never said that they are identical. Whilst I appreciate what the Leader of the Opposition is saying, that in a criminal trial, before the trial starts, the whole package of witnesses and issues at stake is all resolved beforehand and then you start, this is still an investigation and in the early stages a whole lot might not be known about what went on. That is why they are having an investigation.

The Greens certainly do not want to put such obstacles in the way of public hearings so that they can never be held. The commissioner has made his views very clear on this. We have put—I do not call them obstacles—what I would call reasonable protections for witnesses, whether they be persons of interest, persons who might be thought to have committed maladministration or misconduct or whether they are other witnesses, but I think this does take it too far. I am comfortable with the protections that we have already this afternoon built into the legislation, so the Greens will not be supporting this amendment.

The Hon. J.A. DARLEY: I will be opposing this amendment.

The Hon. C. BONAROS: We, too, took very seriously the concerns raised by the commissioner. Perhaps this is a question for the opposition leader more than it is a comment. The disclosure requirements, as I understand them, are a summary of the allegations, not the full details of all the allegations. It is a description of the evidence; it is not all the evidence that is to be provided. It is a list of witnesses who will be examined, but that list, as I understand it, is not necessarily exhaustive and may not preclude further witnesses from being called. I think that they are three important points.

The opposition leader has said that it may not catch anybody by surprise. Well, I think it certainly could because, as I read these clauses, they are not exhaustive and there is scope for the commissioner, for instance, to call further witnesses. If I am correct, that list does not necessarily include everybody who will be called. Again, it is a description of the evidence that is sought to be obtained by the commissioner and a summary of the allegations. If the opposition leader could address that as a question, that would assist.

The Hon. K.J. MAHER: I can answer that quite quickly. I think that the honourable member has accurately surmised the purpose of this. This is not as onerous as a criminal trial. I agree with the Hon. Mark Parnell insofar as this is not identical to a criminal trial and these requirements are not identical to the full disclosure you have to make at a criminal trial. I think that is where the Hon. Connie Bonaros is correct. This is a lesser burden than would be required at a full-blown criminal trial, recognising that it is not exactly like a criminal trial. It is descriptions and summaries, rather than particularised allegations and the complete list of evidence and transcripts.

The Hon. M.C. PARNELL: A question for the Leader of the Opposition: if there were some deficiency in this disclosure, would that give a witness the right to seek to end the entire inquiry? For example, if the summary of the allegations was incomplete, if the description of the evidence was incomplete or if the list of other witnesses to be called was incomplete—not because there was a new witness but because, for some reason, they just left someone off—would any or all of those give a summonsed witness the right to challenge their summons or challenge the entirety of the open hearing?

The Hon. K.J. MAHER: I do not think I will give a complete answer, but I will give what I suspect is the answer. I think that the commissioner has said previously that he considers that he is subject to judicial review. Being subject to judicial review, and having made a decision about the summary or the description of evidence, my guess is that it would be open to someone who feels that they have been adversely affected to take action, as they could for any decision from any other part of the act as it stands or any part of the bill as we are considering it. My guess is that this would be no different. If they could show detriment, they might be able to have a remedy, but it would be no different from anything else in this bill if the commissioner is right and the decisions that he makes are subject to judicial review.

The CHAIR: The Hon. Ms Bonaros, I am not sure whether you indicated your intentions. Maybe I did not hear it.

The Hon. C. BONAROS: Our intention was to support this amendment, given what I have said. I am a little bit nervous about supporting things based on guesses, with all due respect. They might be educated guesses, but I am a little bit concerned that we might need further clarification in relation to this provision. Perhaps the Treasurer could assist in that regard.

The Hon. K.J. MAHER: I think it is lost.

The Hon. R.I. LUCAS: The numbers are not there anyway.

Amendment negatived; clause as amended passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (18:50): I move:

That this bill be now read a third time.

Bill read a third time and passed.