Bills

Independent Commission Against Corruption (ICAC Recommendations) Amendment Bill

Introduction and First Reading

The Hon. S.L. GAME (22:12): Obtained leave and introduced a bill for an act to amend the Independent Commission Against Corruption Act 2012. Read a first time.

Second Reading

The Hon. S.L. GAME (22:13): I move:

That this bill be now read a second time.

I rise to address the shambolic state of South Australia's Independent Commission Against Corruption and to put forward sensible, practical and achievable steps to help salvage the reputation of ICAC and that of South Australia as a state that takes the integrity of its public service seriously.

Since being established and especially from 2021 onwards that reputation has taken a battering, and the events of early July 2024, when we witnessed the sudden resignation of Ann Vanstone KC, just four years into her planned seven-year term as ICAC commissioner, have only added further weight to the South Australian public's worrying perception that ICAC has been deliberately reduced to a toothless tiger with the aim of letting public servants, particularly high-powered ones, off the hook. This cannot stand, and it is the responsibility of all members inside both this chamber and the lower house to right the past wrongs as soon as possible and take the first steps towards rebuilding our reputation.

South Australia's ICAC was a statutory office created in 2012 and tasked with the crucial role of identifying and dealing with corruption, maladministration and misconduct across our state's vast public administration. That role was perhaps best summarised by ICAC itself in the 2020-21 annual report, which said that the body existed to preserve and promote public integrity in public administration through proactive prevention and education initiatives, the investigation of corruption in public administration and the investigation or referral of misconduct or maladministration in public administration.

Established alongside ICAC was the Office of Public Integrity, functions of which included assessing and receiving complaints about public administration, plus reports of misconduct, maladministration and corruption. Importantly, in the context of what was to come, it was also required to refer reports of such behaviour to ICAC.

To be clear, I do not wish to return South Australia to that original legislation and acknowledge that a case was built for reform. However, the manner of Ms Vanstone's departure from the commissioner's role needs to be considered, in particular the reasons behind her decision. Ms Vanstone said that the 2020-21 amendments had damaged the scheme under the guise of making it more effective and efficient.

Among other things, the changes narrowed the definition of corruption and, according to the Law Society of South Australia, had effectively meant a suite of dishonesty offences suddenly fell outside of ICAC's reach to investigate in the context of public administration. These included theft, money laundering, deception, dishonest dealings with documents, and dishonest exploitation of positions of advantage.

Back in late 2021, when these changes were being rushed through parliament in an unusually rare show of bipartisanship for such a high profile issue, Ms Vanstone raised a number of concerns about how the new look ICAC would operate. She said its amended powers would effectively help to shelter MPs from ICAC, limit the criminal offences ICAC could investigate, and hinder ICAC's ability to speak publicly.

These concerns were echoed by Ms Vanstone when she resigned recently, and again when I met with her in late July. In my view, the commissioner appears to have taken an exceptionally balanced view on ICAC and what its powers should and should not entail. She has clearly, after some reflection, considered that the first iteration of ICAC contained some flaws. Subsequently, and importantly, in suggesting these modest changes she was not demanding a return to the first body, and nor are we.

Instead, I am acknowledging the strengths and weaknesses of the current iteration of ICAC and suggesting a better refined model. Unfortunately, the state government's apparent unwillingness to consider these measures, described as modest reforms, has led to our commissioner resigning part way through her term. Ms Vanstone outlined her suggested changes to me in written and verbal form and, importantly, she wishes to restore the following to the definition of corruption: (a) theft of property or deception by a public officer; and (b) an offence of violence by a police officer on a member of the public.

In addition, the policy committee, a joint committee, has suggested that the definition of corruption be narrowed to an offence that carries a two-year or greater jail term. Ms Vanstone told me that she considers this a sensible recommendation, and it sounds pretty sensible to me. The commissioner has labelled it absurd that ICAC is not allowed to speak to prosecutors, meaning they are denied access to the expertise and knowledge of the commission's investigators who best know the matter at hand. Instead, ICAC investigations must be handed over to SAPOL, which decides whether or not it should be referred to the Director of Public Prosecutions.

I agree with the commissioner, this is absurd, and the significance of this anomaly, which puts us out of step with other states, was again highlighted as recently as yesterday when five ICAC reports were tabled. Surely the ICAC has more expertise and resources than SAPOL to make these decisions, and this extra responsibility is foisted upon SAPOL at a time when we constantly hear about shortages of police staff impacting their operations.

We also believe the law should allow the commission to refer a matter to the Director of Public Prosecutions for the director to consider whether charges should be laid rather than having to refer to SAPOL first, as is required currently as a kind of intermediary. Ms Vanstone also made mention of our ICAC being gagged—that is, it cannot tell the public what it has uncovered. Again, this could go to a negative perception about transparency and accountability in South Australia, also referenced by Ms Vanstone.

The public has a right to know if there is a problem in the public sector, and remember, people are not named. It is important to understand that ICAC investigations are often preventative exercises, even if corruption is not found. For example, if ICAC finds that people are pushing boundaries they pass on the information relevant to that, then departments develop policies to rein in those behaviours. These departments often thank ICAC for nipping these potential problems in the bud—no investigation is wasted.

In addition, preventing ICAC from reporting its activities only adds further weight to the unhealthy misconception that the body is not doing much. In reality, there is plenty of worthwhile work going on but the law prevents the public from understanding this, so the law should be changed to allow the commission to make public statements about a corruption investigation regardless of whether or not the commission is satisfied that criminal disciplinary or penalty proceedings will result from that investigation.

Section 39A of the act now requires the commission to advise each person who was the subject of an investigation of the outcome of that investigation. That requirement is appropriate when the person knows they are being investigated. It presents very real dangers when an investigation concludes without the subject ever knowing of it. As an example, imagine a dangerous gang member being investigated, not having an offence pinned to him but then learning of the investigation and subsequently seeking retribution on whoever he suspected of dobbing him in.

As I continue, I remind those present that ICAC can no longer initiate its own investigations. The Office for Public Integrity must now do this. This is inefficient but also creates the potential for problems when other law enforcement bodies identify corruption that they wish to share with the commission for investigation. Ms Vanstone tells me these agencies are often reluctant to share such information with the Office for Public Integrity as it is not a law enforcement body.

I must highlight the situation that can see the public required to pay the legal fees of someone convicted by an offence no longer covered by ICAC. It seems the state government is not across this anomaly as the outgoing commissioner is because, despite what the Attorney-General has said to the media, it is in fact that government employees, including MPs, are reimbursed for costs associated with engaging an independent legal practitioner when they have been subjected to an ICAC investigation.

If someone is found guilty of an offence outside of those very few corruption offences, they are entitled to have their legal fees repaid, and that is not a decision at the discretion of the Attorney-General. I believe this is an obvious flaw in the current ICAC legislation and an unfair burden on South Australian taxpayers, so I suggest reimbursement should simply be precluded where there is material adverse findings made.

The bottom line is that Ms Vanstone is adamant that corruption has become more likely since the 2021 amendments, and navigation around these matters more cumbersome and expensive. Therefore, I call on this chamber to support moves contained in this bill that aim to return our ICAC to the status functionality and effectiveness it deserves for the state's taxpayers. I note that the Hon. Connie Bonaros will also be moving a similar bill, and I put on the record that my concern is simply to work collaboratively with the member to obtain the best outcome going forward.

Debate adjourned on motion of Hon. I.K. Hunter.