Bills

Independent Commission Against Corruption (ICAC Recommendations) Amendment Bill

Introduction and First Reading

The Hon. C. BONAROS (22:25): 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. C. BONAROS (22:26): I move:

That this bill be now read a second time.

In September 2021, this parliament made a mistake. I made a mistake. The parliament's mistake was to rush through changes to our state's integrity laws with no debate, no consultation with the Commissioner, the Hon. Ann Vanstone KC, or the then Ombudsman, Mr Wayne Lines, and with inadequate time to read and understand the proposed changes. An extraordinarily complex legal scheme that very few of us understood in its original form was gutted off the back of what has been proven to be false narratives circulated in this place and the other.

The new scheme, it was claimed, would be more effective and efficient, but as it turns out was just another false narrative. My mistake was that I supported something based on assurances given to me by my colleagues. My former colleague was the then self-appointed lead and I was not involved in the discussions that resulted in the drafting of the bill and certainly not the final product that passed this parliament. That is a mistake I made and one that I am willing to own.

The final version of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Bill 2021 was only advanced in this place a short time before its passage and did not reflect the original bill filed weeks earlier. I did not have time to absorb the proposed changes or the reasons for making them. Despite the outcome of the vote being predetermined outside of this chamber, I was wrong to not have asked questions within it, to not have objected to the unprecedented haste with which such complicated reforms were progressing. Again, I own that mistake. I have learnt a valuable lesson and when I make a mistake I endeavour to own it, not repeat it, and, where possible, to make amends.

Today, I have introduced the Independent Commission Against Corruption (ICAC Recommendations) Amendment Bill 2024 to make amends. The changes this bill proposes reflect the most modest request made by the commissioner, the person best placed to know precisely how the scheme is working or not working. This bill will inject efficiency and effectiveness into the scheme and ensure that the public interest is at the heart of our public integrity regime.

The 2021 amendments to the ICAC Act removed deception and dishonesty offences from the definition of corruption. Theft of public property or deception by a public officer is not currently corruption, even where it results in significant financial loss to a public authority. An offence of violence by a police officer on a member of the public was also removed. It is difficult to comprehend, on any person's reading, that such conduct is not in fact corruption.

This bill seeks to amend the definition of corruption to recapture such offending. However, it will accord with a recommendation made by the Crime and Public Integrity Policy Committee to narrow the offences to those punishable by imprisonment for two years or more. In the interests of efficiency, the bill will also reinstate the commission's ability to investigate incidental offences. Incidental offences are offences connected to corrupt activity but are not in themselves corrupt offences. This is to avoid the need to run concurrent investigations by the commission and SAPOL.

For reasons that escape me, the 2021 amendments removed the commission's ability to directly brief the Director of Public Prosecutions. It has been stated that this was a recommendation in the report of the Crime and Public Integrity Policy Committee, but that report contained no such recommendation. The commissioner, a former Deputy Crown Prosecutor and Supreme Court Justice, must now provide her brief to police, where a senior constable might be asked to familiarise themselves with it and decide whether they think it should be referred to the DPP.

I have heard the Premier and the Attorney-General make comments to the effect that this is required because the police have expertise in making such adjudications, but that argument does not survive even the most basic scrutiny. The primary reason that anti-corruption agencies are established is because it is recognised that police do not have this expertise. The South Australian ICAC is the only anti-corruption body in Australia precluded from referring a matter to the Director of Public Prosecutions. Every other South Australian investigatory body—and, in fact, anyone—can refer a matter to the director for consideration.

Prior to the 2021 amendments, the Full Court of the Supreme Court, in hearing an appeal about whether the commissioner had acted beyond their powers by referring a matter to the director, found that the commissioner did have the capacity to refer to the director, stating:

If the Act did not give to the Commissioner the capacity to refer a matter for prosecution to the Director, but made the Commissioner dependent on the decision of SAPOL whether to prosecute or refer a matter for prosecution, the mischief to which the Act was directed would not be achieved.

Ten months later, the parliament expressly removed the capacity for the commission to make such a referral. The amendments purported to implement recommendations of the report of the Crime and Public Integrity Policy Committee into matters of public integrity in South Australia. However, that report did not contain any such recommendation for the removal of the capacity to refer a matter to the director.

The consequences of this are significant. First, it is hard to argue that we have an ICAC when that commission is completely dependent on SAPOL for any decision about whether a matter is referred to the DPP for consideration, just like it is dependent on the Office for Public Integrity as to whether it receives a referral for investigation. Second, the double handling of what is often voluminous amounts of information is a waste of public resources—resources the police could, without doubt, use elsewhere.

Third, the transfer of an investigation file and brief to police and the locking out of commission investigators results in a loss of expertise not just in relation to the file but in understanding corruption matters. We now have a ludicrous situation where prosecutors are forbidden from directly communicating with the commission and must use SAPOL as an intermediary. Fourth, the commission has said publicly that adding the additional step of sending an investigation file and brief to SAPOL can cause a delay of up to a year.

One final point I will make is that I cannot fathom how it is more appropriate for a police officer to determine whether to refer a matter for prosecution when the person of interest in the matter might just be a police officer. We are now the only jurisdiction in Australia with this limitation, despite the fact that anti-corruption commissioners of all states and territories have declared it to be one of the 12 fundamental principles necessary for anti-corruption and integrity agencies to independently and effectively undertake their respective functions.

In a report tabled in this place yesterday by the ICAC, the commissioner highlighted this is not just her view: the 2021 amendments to the ICAC Act also created the Office of the Inspector to review the commission's activities. In the inspector's annual report for 2022-23, he recommended that the commission's power to refer matters directly to the director should be reinstated, citing that referrals to SAPOL have caused significant inefficiencies and duplication of working costs.

With respect, the facts speak for themselves. The current position is not defensible—it is out of step with every other anti-corruption agency in the nation, it is out of step with international best practice and it is out of step with the Jakarta convention, to which we are a signatory. For all these reasons, the bill will expressly provide for the commission to directly refer its matter to the DPP.

The South Australian ICAC has always been the most secretive of the nation's anti-corruption agencies. Despite rhetoric swinging between the ICAC being too secret whilst at the same time not being secret enough, the parliament in 2021 removed its ability to communicate effectively and transparently by limiting what it could make a public statement about and constraining the commission's power to make a public report to parliament by disallowing any suggestions of criminal or civil liability. This bill reinstates the commission's ability to more effectively communicate with the public about its operations by reinstating the previous sections 25 and 42.

The commissioner has raised that the current requirement to advise a person who was the subject of an investigation of the outcome of that investigation has given rise to a serious unintended consequence. The commissioner has informed me that, where a person knows they are being investigated, it is plainly appropriate to communicate with them about the investigation and its outcome.

However, advising a person who was none the wiser of such an investigation causes unnecessary stress, but more significantly poses serious safety issues for whistleblowers. It will often be obvious who the whistleblower is and in some cases, where the person of interest is a member of an organised crime group, poses a particular danger to the life of a whistleblower. I am also informed that in complying with section 39A a commissioner/officer will be in breach of section 8 of the Public Interest Disclosure Act 2018. The bill seeks to amend section 39A so the commissioner will have the discretion to advise a person of a concluded investigation into their conduct if they were not aware of the investigation.

The bill seeks to reinstall the commissioner's ability to commence an investigation on his or her own initiative. At present, the commissioner can only commence an investigation if the Office for Public Integrity refers a matter to her. The South Australian commission is the only anti-corruption agency in the country that cannot commence an investigation of its own initiative. The bill seeks to remove the intelligence blindfold from the commission by giving the commission access to relevant complaints and reports, data and other information held by investigative bodies and inquiry agencies.

I save the best for last. The bill seeks to remove the provision that allows some public officers, including those who occupy this parliament, to have their legal expenses reimbursed from public funds, unless they are convicted of an indictable offence that constitutes corruption in public administration.

I do not know why we are so afraid of an appropriately empowered commission. I know it has been argued that the 2021 amendments have not been in place long enough to know if they are working. None of the changes provided for in this bill would benefit from a single extra day of time. I ask the question: how many public officers need to be reimbursed for their legal expenses before we reach some arbitrary time period to know if that is a good idea or not? And that includes us as politicians in this place.

It is important now, as a matter of public record, to distinguish between fact and fiction, especially in relation to what has been said publicly regarding the need or otherwise for these reforms. I might add as a matter of public record in this place that the fact that there are three notices of motion on the Notice Paper—this one and ones from the Hon. Rob Simms and the Hon. Sarah Game—and public comments by the opposition indicating that we went too far, is very telling.

I have consulted, sought feedback and made requests for clarification on many of the comments made publicly and will now reflect on some of those for the purposes of the public record. I will start with comments made at the beginning of the month by the Hon. Frank Pangallo on ABC where it was stated:

Now Frank Pangallo, who is one of the authors of these biggest changes, says that this is all getting ahead of itself because the changes have built into them a review, and we are only maybe six months or more away from the review.

There is no mandated review in the legislation. It is unclear what the honourable member is talking about with respect to that review. If it is a review that exists under a committee process, that is not a mandated review that exists within the ICAC Act. Again on 2 August it has been reported:

However, Mr Pangallo said that new legislation was not needed and that concerned MPs should make submissions to a mandated review of the legislation later this year.

For the record, there is a yearly review of the operations of the commissioner, but this is an entirely different thing. The commissioner, the former Ombudsman and the Director of the Office for Public Integrity have requested an independent review of the legislative scheme to ensure it is operating efficiently and effectively. The former ICAC inspector, Mr Strickland SC, also called for such a review. There is no mandated review and it is unclear again whether the review the member referred to or imagines could or would be independent.

On 29 July, there was an interview with the Premier with David Bevan on ABC. In that interview it was stated, 'Well, it was the Marshall government that introduced them, but regardless, yes, we supported them.' As did I. The reason why we supported them was because there was a growing body of evidence around the country, and South Australia was no exception, that natural justice was not naturally being afforded to people in every circumstance that people would reasonably expect. The Premier goes on:

Those changes to the ICAC Act have barely been in effect. I mean, it is less than two years. The ICAC Commissioner has made a number of suggestions. Some I think are worthy of contemplation more than others, but at the same time we didn't ever commit, nor have we ever committed, to revisiting or having a wholesale examination or revisiting a piece of legislation that hasn't been in effect for even two years.

This begs the question of when natural justice has not been afforded to a person the subject of an ICAC investigation, and it would be useful if we could have particular examples of that. Natural justice or procedural fairness would apply in circumstances where the commission intended to publish information about a person or to make a finding against someone. That person would have the right to be heard, and nobody has ever claimed they were not afforded the right to be heard. Also, the commission has never had the power to make findings of corruption because corruption is dealt with by the court.

Procedural fairness does not apply to any matters referred for prosecution by any investigatory body, including the commission and police. When the commission had jurisdiction over serious or systemic misconduct and maladministration, it could make findings in relation to that conduct, but nobody has ever claimed that procedural fairness was not afforded. There are only three occasions where information about investigations of this type were published, namely, Oakden, Gillman and Adelaide University.

Both the Premier and the Attorney have said that the changes to the act are too new to know whether they are working. The changes are almost three years old. We have heard that they might be around two years old, but they are almost three years old. We have heard it said that some parts of the legislation have only been in effect for two years, but I think it is important to clarify that the only provision that is two years old is the establishment of the inspector to replace the reviewer. The commissioner is not requesting any changes to this provision.

The modest changes requested by the commissioner will not be afforded more clarity by waiting another year or two. If we do wait another year or two, then it may just be that we have more of an issue around those costs. I am going back and forth here, but again, on David Bevan's show the Premier said:

I would never seek to put words in the ICAC commissioner's mouth, but her position has been that the requirement that the ICAC would have to refer something to police in advance of it going to the DPP is something that the commissioner has expressed reservations about. This is the opinion to which she is clearly entitled, but it is the government's view, and it has been the parliament's view, that actually that represents a good process by ensuring that the ICAC does an investigation, hands it over to the police. The police have all the resources and they inform the function on a more regular basis than the ICAC of actually making sure everything is tied up in a best or fit-for-purpose format for the DPP to then do its piece of work.

I have already raised the issue around the referral to the police, but the long and short of it is, as has been indicated, anti-corruption bodies are established in recognition that police do not have the expertise that current corruption matters require. One of the fundamental principles that I have referred to, by the commissioners of Australia's 10 anti-corruption agencies, is the ability to refer matters to a prosecuting authority. The ICAC inspector has also recommended that this is necessary, as has the Centre for Public Integrity. There have been claims that this is a good process, but it adds about a year to the criminal justice process, and the longer the process takes the less likely it is that a conviction will ensue.

On 29 August, again on David Bevan's show, the Premier is quoted as saying:

…how comprehensive and intrusive these powers are and have the capacity to be, and what's important is that when we take rights away from public servants because—let me give you, for instance, I mean, I am using an example here, but a train driver who doesn't fill out their time sheet properly is afforded less rights than what a murderer can be. I mean, what the ICAC does is take away rights from those who are suspected of doing the wrong thing in a way that doesn't occur to every other person in the community. So it's not about—they are actually very substantial investigative powers that, over hundreds of years, through our system of criminal justice have determined the state shouldn't have.

The commission has only one power that the police do not have, and that is the power of examination. As the commissioner has said, the power is rarely used and almost never used against a person of interest. If it is used against a person of interest, nothing that person says can be used against them.

The commissioner told David Bevan on radio recently that she had conducted one examination in the last year. The feedback that I have is—I think this is just a logical position actually—how on earth is a train driver incorrectly filling out a timesheet afforded less rights than a murderer? A mistake on a timesheet is not a criminal offence. If timesheets are deceptively and dishonestly representing an employee's time, then it might be a criminal offence, but how that would transpire in less rights than a murderer remains unclear to me.

Just on that issue—we have canvassed the issue of costs—if that murderer that we are talking about was to be convicted, they would not be reimbursed their legal costs if they are instead found guilty of manslaughter, but a public officer guilty of an offence that is no longer corruption will, under the changes, be entitled to get their costs back.

In another interview with David Bevan, again on the same day, the Premier said:

Bruce Lander came into the studio and said, 'Oh yes there's corruption everywhere' and I think they’re pretty big statements for people to make.

There were further quotes from there. I have asked if Bruce Lander has ever said that. In fact, what I have been told that he has consistently said is that South Australia does not have any systemic corruption and was nothing like the New South Wales and Queensland. He did say that South Australia had a problem with systemic maladministration, which has since been removed from the commission's jurisdiction. In the 2017-18 annual report, the former commissioner said:

Investigations undertaken during this reporting period have reinforced my view that maladministration remains the biggest threat to public institutions in this state.

Maladministration infects numerous public institutions and results in significant and unnecessary loss of public money. Corruption and maladministration are inextricably linked. Maladministration, by way of poor practices, policies, procedures or poor oversight and management, creates the opportunities for corruption to occur.

It is why, quite rightly in my opinion, I am also empowered to investigate serious or systemic maladministration in public administration.

In the former commissioner's Looking Back report published in 2019, he said:

Over six years of operation I have concluded that South Australia does not have a public administration that is systemically corrupt. There are of course corrupt individuals but the administration itself is not corrupt. However, South Australia does have a public administration that is plagued by maladministration and very poor conduct, both of which foster environments that make individual corruption possible and in some instances make it extremely difficult to detect corruption. In many ways the harm caused by maladministration is probably far more significant than the harm caused by instances of corruption detected in this state.

There are further comments to that effect made again by the same commissioner in 2020.

In July of this year the Attorney said, 'I know there are a great range of views within the legal profession, within the justice system, about how our integrity agencies should operate.' He goes on to be asked, 'Vanstone says the regime is fractured and silly. Do you think it’s fractured and silly?' The response to that is, 'No, I would take a different view and I think people who are involved with other integrity agencies take a different view than that.'

There are not a lot of different views across the jurisdictions in terms of those. The community, public officers, the Law Society, academia and the Centre for Public Integrity have all expressed very similar views. I do not think it is fair to say that agencies have a different view, which is clear from the principles that have been published by Australia's 10 anti-corruption agencies, which are entirely consistent.

We then have further conversation around the issue of legal expenses. I note that I did ask a question in this place when we heard of the matter concerning a medical professional and his ability, or otherwise, to be reimbursed legal costs. The difference in views that are being expressed is advice that that is a legislated entitlement that exists under the current scheme versus the other view that is being espoused—that there is a discretion. The advice that many of us have received is that there is no such discretion: there is a legal entitlement in instances for legal costs to be reimbursed.

That same interview goes on to talk about the fact that those provisions have only been in place for two years. As I said previously, there was only one provision that has been in place for less than two years. We then go on to talk about:

I think the police have a huge amount of experience. They do it on a day-to-day basis dozens of times in terms of putting briefs of evidence together for the DPP and understanding what is the DPP's needs.

The motivation behind the changes that were made to the ICAC referring to the police and then to the DPP were made so that police could bring their experience to bear on those. The DPP will ultimately decide whether something gets prosecuted, but now it has the lens of the police looking over it and to see if it should be prosecuted.

As I said previously, the very reason anti-corruption agencies were established here and in every other jurisdiction was that the police do not have that expertise. That is why those commissions have been created. It is difficult to fathom how a constable has more experience in constructing a brief than the level of expertise that we have in our ICAC. As I mentioned before, we have had a former deputy DPP and Supreme Court justice serving on that position. It is difficult to understand how it is that police would have more experience. But putting that aside, there is also, again, the issue of delays.

There are comments from the Hon. Frank Pangallo that the ICAC hasn't been gagged as she claims and that in fact they still retain the powers they had. There is also this:

Now, I don't think anyone needs any reminding of the many failures of ICAC—the costly investigations, image and reputations, ruined lives and suicides. They have had very few successes out of hundreds of millions of dollars spent. The place was found to have been an—

and the next part of the audio is unclear, but then it says—

shambles by the since departed inspector of ICAC, who made an adverse finding against the agency in his report into the Hanlon matter, and I have already said in parliament it was a bit of a snow job because he also tried to work very hard to protect the agency in itself from more serious criticisms. And I can tell you, Graham, to this day the changes continue to have widespread support, particularly from the legal fraternity.

Well, that legal fraternity does not include the Law Society, for one, or the Centre for Public Integrity or any other anti-corruption agency that exists in the nation. ICAC have not retained the powers they had, and that is very important to note. The ICAC cannot receive a complaint; make a referral to the DPP; start an investigation on their own motion; make a public statement about an investigation, unless no corruption was found; make frank and transparent reports to parliament; or investigate misconduct and maladministration. They have not retained any of those powers.

We have heard about suicides, and it is a tragic, tragic story. We have heard lots of discussion around a very tragic case involving a suicide. That is tragic. It is tragic. It is tragic that somebody has taken their own life. In terms of the 'multiple suicides', though, that we have had referred to, there is only the one, who the inspector found was investigated appropriately.

In relation to some of the other points that have been raised, there has been commentary that intermediary steps of providing briefs to police is required because ICAC can conduct compulsory hearings. The commissioner has said that she would not ordinarily examine a person of interest because there is little utility to wit. There are safeguards built into the act to ensure that compulsorily acquired material is not used to incriminate a person. These safeguards were taken from those in the legislation governing the Australian crime commission because they also have the power.

Finally, again, and I think I may have already mentioned this, there are comments that were made today as well that the bill reflected the recommendations or was based on the CPIP Committee inquiry, but I make the point again that there were no recommendations for two critical elements in relation to those changes, namely, the current definition of corruption and the issue of costs.

This morning, I pointed to two examples of other agencies, and it applies to every other agency, and this is the most recent example I am going to give, where referrals can be made directly to the DPP. If SafeWork identifies a breach, they refer that directly to the DPP. If Fisheries detects a breach in terms of the number of a species caught, or whatever the case may be, they can direct that directly to the DPP, as can any other agency.

The only matters referred to the DPP are those that carry penalties. It is not fair to say, it is not accurate to say, that those agencies ought to be able to refer matters to the DPP directly, but the anti-corruption agency in this state, ICAC, should not be able to make referrals directly to the DPP. That point does not make any sense to me. I am yet to understand fully what was meant by the comments. The fact remains that other agencies already have that ability. The only agency that has lost that ability in this jurisdiction is our anti-corruption agency.

They are the points that I wanted to clarify in relation to the commentary that I have heard. I am obviously very willing to listen to comments made back in relation to those as we proceed through this debate. I will, at this point, seek to table documents that have been provided to me, and I am sure other members. There are four documents in total: the anti-corruption outline of the fundamental principles, a letter requesting a review for the integrity scheme, a further letter in relation to the issue of costs and, of course, the letter that I and other members received in relation to these reforms.

Leave granted.

The Hon. C. BONAROS: In summing-up, nobody has suggested that we revert back to the original ICAC legislation. I am not suggesting that we revert back to the original ICAC legislation, and for good reason. I think the public sentiment around this issue has been overwhelming and indeed damning. When I say that we made a mistake in this place, I say that genuinely because that is what the public has told us.

I have not heard or found many people out there, and I do not think the callers in and feedback that those radio stations have had either, have said otherwise in terms of: have we done anything in here in 2021 that instilled public confidence in the way that we went about these largely complex laws? The overwhelming response to that question is no. There are obviously changes in here that I know there is no appetite for in this place. What I am saying, what I have said publicly, and what I am saying today is, if we did not pass the pub test in 2021 then let's just have the debate around the changes now—let's have a debate.

An honourable member interjecting:

The Hon. C. BONAROS: Well, it passed the public confidence test, perhaps, is a better reflection than the pub test, but we did not do anything to instil confidence in this place about the way we went about those laws. The timing did not, the process did not, none of it did. I know there are changes in there that are contentious. I am under no illusion that many of those changes are still going to be contentious when they are debated, but I think we owe it to the South Australian people to have that debate in here in a thorough and robust way. That is the purpose of this bill, and I think that is the purpose of the bill that the Hon. Rob Simms and the Hon. Sarah Game have proposed, and the sentiment that has been expressed by others.

Nobody is saying go back to the original bill, but we have to acknowledge—I am not speaking for anyone else, I am speaking for myself. I am saying the feedback to us is that we went too far. The feedback to us is that nothing we did in here on that occasion instilled public confidence in our processes. The response to that then ought to be not to revert back to but at least contemplate and consider the modest changes and the not so modest changes, if that is how you perceive them, that have been put to us time and time again and have a debate around them. That is the purpose of this bill. That is what I am seeking to do, and that is what I am hoping this chamber will engage in.

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