Legislative Council: Wednesday, September 13, 2023


ICAC Report

The Hon. F. PANGALLO (14:46): I seek leave to make a brief explanation before asking a question of the Attorney-General about the report into the investigation and prosecution of former Renewal SA chief executive John Hanlon.

Leave granted.

The Hon. F. PANGALLO: Two months have passed since the report by the ICAC inspector, Philip Strickland SC, who is also the Ombudsman inspector, was tabled in both houses of parliament. There has not been a reaction to his findings—notably, institutional maladministration in public administration by ICAC—from you nor the government. When Mr Strickland appeared before the select committee into reputational damage and harm from ICAC investigations, I described his report as a snow job designed to shield the high-profile individuals at ICAC he named from any consequences for their actions.

The reason for my remark should become apparent to anyone, including the Attorney-General, with knowledge of two significant pieces of legislation: the Independent Commission Against Corruption Act passed in 2021 and the Ombudsman Act amended at the same time. Mr Strickland found, and I quote, 'substantial mismanagement, incompetence, impropriety and negligence by ICAC officers'. Yet, curiously, he declined to sheet the blame on any individuals named, only the institution itself. Surely it cannot be a legally competent finding to excuse individual responsibility.

On page 101 of his report, he cites section 5(4) of the ICAC Act as the reference point to his finding of misconduct and maladministration. However, neither Mr Strickland nor the multiple sets of eyes of the legal eagles who prepared several drafts of his report, nor the commissioner herself—who had to first approve the report's contents to be published—picked up significant jurisdictional errors: principally, that this section does not exist in the ICAC Act. That section was moved to section 4 of the Ombudsman Act and it makes it very clear who must be responsible.

Section 4(2)(i) captures an authority and/or an individual, but only where there has been a misuse of public money or mismanagement of resources. The inspector found nothing there. But placitum (ii) covers individuals guilty of maladministration from impropriety, incompetence or negligence, and at section 4(3) also applies conduct that occurred before the start of this section. Therefore, there is no reason why Mr Strickland could not have attributed maladministration to individuals, ranging from Mr Lander to individual investigators, but for some reason he chose not to.

The inspector has used his findings of impropriety, incompetence and negligence, in the individuals directly involved and assigned to these findings, to arrive at a conclusion that the conduct of the individuals justifies the label 'institutional', but then uses that consequential finding to excuse the conduct of everybody.

His report is meaningless. He is asking us to accept the illogical and wrong as logical and right because of his credentials and because he says that is so. It is sophistry, the clever use of argument, superficially plausible, but which is in reality unsound or fallacious and employed to lull or deceive the audience. The audience here is each member of the two houses of parliament. My questions—

The PRESIDENT: And I am glad we've got to it, the Hon. Mr Pangallo. You really shouldn't use your preamble as commentary. It is for providing information with regard to the question. So I know that you will be better at it next time.

The Hon. F. PANGALLO: My questions to the Attorney-General are:

1. Have you personally read the report in its entirety, and what conclusions will you now draw from Mr Strickland's key findings, considering the jurisdictional errors I have highlighted?

2. Would you agree that the finding of 'institutional maladministration' as excusatory of culpability in anyone, is contrary to the statutory imperatives in section 4(2) and (3) of the Ombudsman Act, in particular section 4(2)(a)(ii), and renders the entire report as lacking in probity and legal efficacy?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (14:51): I thank the honourable member for his question. In relation to his first question, yes, I have read the entire report. I don't have it in front of me at the moment; I wouldn't be able to quote sections of it. In relation to his second question, which invites me to denounce the report by Philip Strickland SC, that is not something I will do.

This parliament made changes to our integrity legislation and provided for the ICAC inspector to be set up. I referred this particular matter to the ICAC inspector, and the ICAC inspector handed down a report. I don't accept the honourable member's characterisation or much of how he has described the report or Philip Strickland SC in the preamble to his question.