Independent Commission Against Corruption (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:30): Obtained leave and introduced a bill for an act to amend the Independent Commission Against Corruption Act 2012 and to make related amendments to the Ombudsman Act 1972 and the Public Finance and Audit Act 1987. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:31): I move:

That this bill be now read a second time.

Today, I introduce the Independent Commission Against Corruption (Miscellaneous) Bill 2024. As members in this place are aware, in 2021 significant changes were made to the Independent Commission Against Corruption Act 2012, with the passage and then commencement of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021. This bill is designed to address a small number of omissions or unintended consequences from that amendment act.

At the outset, I want to make clear that this bill is in no way designed to significantly change or reform the way the integrity scheme in South Australia currently works. Many of the amendments in the 2021 amendment act, such as the creation of the Office of the Inspector, have only been in operation for a relatively short time. The government would like to see these amendments in operation and allow time for agencies to develop their practices and procedures, as they have been doing.

Further, I understand the Crime and Public Integrity Policy Committee of this parliament intends to commence a review of the operation of the ICAC Act, as it is required to do so by the Parliamentary Committees Act, toward the end of this year. That will be an appropriate forum for exploration of other ideas to amend the integrity legislation. The government is not closed off to the possibility of further amendments in the future, but today we seek to progress a small number of issues.

The bill will amend schedule 5 of the ICAC Act to change the criteria for the reimbursement of legal costs under the ICAC Act. The amendment will ensure that a public officer who has been convicted of any offence is precluded from reimbursement. There have been differing views expressed regarding the application of the fee reimbursement provisions of the 2021 amendments, and this bill aims to put these matters beyond doubt.

The 2021 amendment act inserted section 39A into the ICAC Act, which requires the disclosure of certain information following the completion of an investigation under the ICAC Act to the person who was the subject of that investigation. Concerns have been raised about the mandatory operation of this section being too restrictive.

The bill will amend section 39A to allow an application to be made to the Supreme Court for an authorisation not to disclose that information. The Supreme Court could then grant the application if it is satisfied that informing the person who was the subject of an investigation will:

be likely to compromise another investigation by the ICAC, a law enforcement agency or a public authority; or

give rise to an imminent risk to the safety of a person or persons; and

the making of the order is reasonable in all the circumstances.

The amendment act abolished the office of ICAC reviewer and created the office of inspector under schedule 4 of the ICAC Act. The inspector's functions include conducting reviews of the operations of the Office for Public Integrity and the ICAC and other reviews at the request of the Attorney-General. There is currently no ability for the inspector to delegate their powers or functions. This omission is impractical and inconsistent with other statutory officers. It could also undermine the inspector's integrity oversight role if the inspector had a conflict of interest in undertaking their powers or functions. The bill therefore inserts a delegation power in relation to the inspector's powers and functions.

The bill also clarifies the inspector's ability to investigate the exercise of power under the ICAC Act as it existed prior to 25 August 2021. The amendment act changed the title of the act from the Independent Commissioner Against Corruption Act 2012 to the Independent Commission Against Corruption Act 2012. The bill inserts additional provisions into schedule 4 of the ICAC Act to make the scope of the inspector's jurisdiction clear in light of the change in the name of the act, such that the inspector may examine exercises of powers occurring prior to 25 August 2021.

The bill will also amend schedule 1 of the Ombudsman Act to change the criteria for reimbursement in relation to ministers and members of parliament to align with the changes made to the ICAC Act to preclude reimbursement for a minister or member of parliament who has been convicted of an offence. This is intended to reflect the unique decision-making role often played by members of parliament and ministers.

The bill will amend schedule 5 of the ICAC Act and schedule 1 of the Ombudsman Act to ensure that legal costs may be reimbursed in relation to criminal proceedings following an investigation under those acts, as well as costs associated with investigations under those acts, provided that the other criteria set out in the ICAC Act and the Ombudsman Act, as the case may be, are satisfied. Importantly, those criteria include that no criminal conviction has occurred as a result of the relevant investigation.

A related amendment is also made to the Public Finance and Audit Act 1987 to provide a regulation-making power to deal with the reimbursement of costs incurred by public officers in engaging independent legal practitioners. Except to the extent that the ICAC Act or the Ombudsman Act deals with costs incurred where there have been investigations under those acts, reimbursement of legal costs incurred in responding to or participating in certain civil and criminal proceedings, including coronial inquiries, is currently dealt with by way of Legal Bulletin 5, the government's policy for approval of reimbursement of legal fees by the Attorney-General in accordance with Treasurer's Instruction 14: Ex Gratia Payments. It is intended that the matters dealt with by Legal Bulletin 5 will instead be dealt with by regulation under the Public Finance and Audit Act.

Concerns have been raised about leaving the ultimate discretion to a minister on the question of the reimbursement of legal costs incurred by current or former members of parliament and ministers, as is currently the case with Legal Bulletin 5. In effect, the framework as it stands today means political decision-makers have discretion over the reimbursement of legal fees to their political opponents. To address this, the bill restricts the exercise of ministerial discretion over such decisions involving reimbursement to current and former ministers and members of parliament.

As I said at the outset, this bill is designed to address a small number of operational and technical issues identified in the ICAC Act, as well as making related amendments to other acts. As I have said, while the government is not opposed to considering further amendments in future, we believe this small set of issues should be addressed as a priority. I commend the bill to members, and seek leave to insert the explanation of clauses in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal. Clause 4(2) and (3) are to be taken to have come into operation on 5 December 2022.

Part 2—Amendment of Independent Commission Against Corruption Act 2012

3—Amendment of section 39A—Information to be provided

Section 39A of the Act requires the Commission, or an agency or authority (as the case may be), to take reasonable steps to ensure that a person who was the subject of the investigation is informed of a determination to take no further action. This clause amends the section to allow the Supreme Court to authorise the withholding of such information in certain circumstances.

4—Amendment of Schedule 4—Inspector and reviews

This clause inserts a delegation power for the Inspector and also provides clarity in relation to some transitional arrangements arising out of the enactment of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021.

5—Amendment of Schedule 5—Reimbursement of Legal Fees Policy

This clause makes some minor clarifying amendments and limits the right to reimbursement of legal fees by providing that a Government employee, Government Board appointee, Minister or Member of Parliament that is convicted of any offence as a result of the relevant ICAC investigation will not be entitled to reimbursement.

Schedule 1—Related amendments and transitional provisions

Part 1—Related amendment of Ombudsman Act 1972

1—Amendment of Schedule 1—Reimbursement of Legal Fees Policy

This clause makes amendments for consistency with the changes being made to Schedule 5 of the Independent Commission Against Corruption Act 2012.

Part 2—Related amendment of Public Finance and Audit Act 1987

2—Amendment of heading to Part 2 Division 4

This clause makes a consequential change to a heading.

3—Insertion of section 20B

This clause inserts a new section as follows:

20B—Legal assistance costs

This clause provides for the making of regulations to prescribe a scheme for the reimbursement of costs associated with the engagement of an independent legal practitioner by a Government employee, Government Board appointee, Minister or Member of Parliament.

Part 3—Transitional provisions

4—Application of amendment to Schedule 5 of Independent Commission Against Corruption Act 2012

This transitional provision ensures that the new rule on reimbursement of legal fees in Schedule 5 clause 3(a) of the Independent Commission Against Corruption Act 2012 will apply in relation to any claim for reimbursement of costs that is certified by the Crown Solicitor (or another authorised person) after commencement of the relevant amendments contained in the measure.

5—Application of amendment to Schedule 1 of Ombudsman Act 1972

This transitional provision ensures that the new rule on reimbursement of legal fees in Schedule 1 clauses 3(a) and 6(1)(a) of the Ombudsman Act 1972 will only apply in relation to any claim for reimbursement of costs that have been incurred after commencement of the relevant amendments contained in the measure.

Debate adjourned on motion of Hon. L.A. Henderson.