Independent Commission Against Corruption (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 31 October 2024.)

The Hon. S.L. GAME (20:52): I rise to address the government's Independent Commission Against Corruption (Miscellaneous) Amendment Bill 2024. The bill follows the events of July 2024 when we witnessed the sudden resignation of Ann Vanstone KC just four years into her planned seven-year term as ICAC commissioner. This added further weight to the South Australian public's worrying perception that due to changes rushed through parliament in 2021 our ICAC has been deliberately reduced to a toothless tiger, letting high-powered public servants off the hook.

After that July announcement I met with Ms Vanstone to discuss her concerns about ICAC and what in her expert view needed to change to ensure the body was able to perform its role appropriately and effectively. As a result I subsequently introduced my own ICAC bill, which puts forward a number of key amendments. These include changes to the definition of corruption. Under the 2021 amendments this definition was narrowed, meaning a suite of dishonesty offences suddenly fell outside ICAC's reach to investigate, including theft and money laundering among other offences. My bill included details of how this flawed area of the legislation could be fixed to pass the commonsense test.

This bill would also allow the commissioner to refer matters directly 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 a kind of intermediary, as is the current requirement, and would also lift the gag on ICAC that prevents it from telling the public what it has uncovered. This gag impacts ICAC's credibility in the public eye and ignores that ICAC investigations are often preventative exercises even when corruption is not found.

My bill seeks to give ICAC the power to initiate its own investigations rather than to rely on the Office of Public Integrity to do this, which creates a potential for problems surrounding other law enforcement agencies. In addition, my bill highlights that the public can be required to pay the legal fees of an offence no longer covered by ICAC.

In speaking to the Attorney-General's office about this bill, we were glad to see that this particular anomaly was addressed, and we are grateful for that—likewise, the government's move to amend section 39A of the ICAC Act to allow a pathway, albeit a narrow one, for authorisation to not disclose to someone that they are being investigated. As I previously explained in this chamber, this could be a life-saving measure if, for example, a dangerous gang member under investigation but not having an offence pinned to him learns of the investigation and seeks retribution on the whistleblower.

However, we are disappointed that the remaining significant changes, some of which I have just listed, are missing from this government bill. Instead, the Attorney-General's bill contains other what I would call technical adjustments that, while important, fail to address the key concerns most sensible South Australians would have with the existing ICAC.

I acknowledge that the review into the operation of the ICAC Act will be undertaken by the Crime and Public Integrity Policy Committee and welcome the Attorney-General and the government saying that these relatively minor changes will not preclude further, more meaningful amendments from taking place in the future.

In addition, I acknowledge and support the amendments that were put forward by the Hon. Connie Bonaros, which also reference the definition of corruption. The honourable member's amendments are in line with the recommendation made by the Crime and Public Integrity Policy Committee to narrow the offences to those punishable by imprisonment for two years or more. The amendments would also reinstate the commission's ability to investigate incidental offences, which are offences connected to corrupt activity but which are not in themselves corrupt offences. This would avoid the chance of investigations being conducted concurrently by the commission and by SAPOL.

The Hon. F. PANGALLO (20:56): The Hon. Ann Vanstone's abrupt and petulant resignation in July was disrespectful to the Attorney-General and to the parliament. Never in my time as a journalist—that is, 46 years—and as an MP have I witnessed a statutory officer behaving in the way Ms Vanstone did since taking office, openly attacking this place and members for reforming ICAC after a series of monumental failures were exposed and in which the reputations of police officers and public officers were ruined, never to be restored and at great cost to taxpayers.

Changes were necessary, and not because we were trying to protect corrupt MPs and police officers, as we were accused of doing. Both Ms Vanstone and Mr Lander told parliamentary committees that even though these officers were either acquitted or had charges dropped it did not mean they could claim innocence, so the stain remained. Unlike most members in this place, I engaged at length with all those who were wronged. I listened to their stories, their ordeal—and it was harrowing for many of them—of being subjected to what amounted to Star Chamber-style inquisitions. Their pain has not diminished.

I spoke with distinguished lawyers who defended them. They could not, and cannot, speak openly about what they thought of the process, but they overwhelmingly supported what we did here. They still do. They believe we got it right, albeit some tweaks would be necessary.

I support having an integrity agency—I think we all do in this place—but it must also act with integrity, and we know that in some cases it did not. Had there not been a parliamentary inquiry, I doubt much of the poor conduct and sloppy investigations would have ever seen the light of day, because of the secrecy provisions in the act. There were courageous people who came forward to talk to me to provide evidence to the committees in the face of being warned against doing so. It seemed that parliamentary privilege did not apply.

As I have said previously, no legislation is perfect. I am supporting the changes by the Attorney-General to clear any ambiguity over guilty persons, arising from an ICAC investigation and then a prosecution, having their legal fees reimbursed. I will point out there has not been one claim, and I doubt there will be one. I understand Crown law advice is that it would not be able to happen without discretions being applied. Nonetheless, this fixes it.

The other amendment is the disclosure to persons that they were subjected to an investigation. An application will need to be made to the Supreme Court. This is to be done to protect the integrity of any other investigation that may be underway by other agencies, namely, police, so that they would not be inadvertently tipped off that they were still under investigation, either for other matters or perhaps the one they were subjected to.

I note other amendments are proposed by the crossbench and I will not support those, particularly direct referral to the DPP rather than going to police, as currently applies. There are clear examples why this should not change. Cases in point: the John Hanlon matter—I will not go into that as I have already done so in detail on previous occasions, but ICAC's referral directly to the DPP contained glaring jurisdictional problems that resulted in the matter falling apart. Police would have quickly picked up on the poor investigation and breaches of international protocols that were done had they been in place and the matter referred to them. This matter is still far from completed as Mr Hanlon considers his legal options for civil redress.

Another case that comes to mind is that of DPTI executive Trent Rusby, who should never have been referred to prosecution by Mr Lander and who was completely innocent of any charges levelled against him. I would recommend that members, particularly those who are mooting amendments and who think otherwise about these referrals, read closely the ICAC inspector's review tabled here into the Rusby prosecution. Clearly, some have not. I will go into this review in more detail tomorrow in my response to Mr Strickland's report and Mr Rusby's reply to it, which has not been fully considered by anyone.

It is interesting to note, where Mr Strickland found fault and criticism of ICAC's performance, no persons at ICAC, Mr Lander in particular, were found to be negligent nor liable. Why is it that members of the legal profession, like doctors, are often reluctant to criticise their own? The organisation was guilty of maladministration—absurd really. The buck never got to the top, even though Mr Lander himself once wrote in an article, still on ICAC's website, that the blame should fall squarely on the shoulders of the public officer in charge of a department that was found to be guilty of maladministration of office. It seemed strange that it never applied to him.

The Crime and Public Integrity Policy Committee has already moved to review the ICAC Act as its next priority. There is no point in making substantial changes, as have been put forward here, until that committee has considered it, after taking submissions, expected to start in early 2025.

In closing, I note that ICAC not only does not have a commissioner, it does not have a deputy commissioner nor its watchdog, the inspector. There was no explanation or announcement about the departure of Mr Paul Alsbury in June 2023, well before the expiry of his term. We do not know why he went. It left a vacuum in the ICAC office while Commissioner Vanstone went on leave, resulting in the appointment, through cabinet, of the Hon. Michael David as acting commissioner.

This flew in the face of a requirement of the ICAC Act, section 9, that there be a deputy commissioner in place to assist the commissioner, as directed by the commissioner. This section is quite specific and the failure to appoint a deputy from 1 July 2023 did not comply with section 9 of the ICAC Act, thereby exposing the government to any future resignation of Commissioner Vanstone—and that has happened. So there is no commissioner, no deputy, only an acting commissioner—and this is the second time, and it is Mr Ben Broyd—until one is appointed.

Furthermore, there has never been an explanation as to the attrition rate of staff working in ICAC. I understand it is one of the highest in the public sector. Why did they leave? Was ICAC such a basket case that staff became disillusioned? These questions and others will of course be addressed by the Crime and Public Integrity Policy Committee in its review.

The Hon. R.A. SIMMS (21:05): I rise to speak briefly on this bill. I do so, though, with an element of frustration. I recognise of course that we were not intending to deal with this tonight, and we have moved this around to accommodate some other matters, but I am very frustrated with the speed in which the government is choosing to deal with these changes. I have advocated for some time that we did need to take another look at the ICAC Act and make some alterations, and indeed I have been on the public record previously recognising that when the parliament made those changes to the ICAC back in 2021, it did so I think with the best of intentions.

I do not accept the narrative that parliamentarians were all corrupt and all trying to cover up bad behaviour. I think actually what the parliament was trying to do was strike a better balance in terms of the ICAC. It is fair to say that there had been concerns about the fact that the balance had tipped too far against civil liberties in favour of the ICAC organisation. These are always matters of balance. It is my view that when the parliament collectively moved to try to fix that back in 2021, it did so to try to strike a better balance.

My concern, however, was that there were some unintended consequences, that collectively we have swung the pendulum a little bit too far the other way, and also that the process that we adopted was not appropriate. We moved too quickly. Members of this chamber know that we had an inquiry into the ICAC, which was led by the Hon. Frank Pangallo and that many members of this place were engaged with. So there had been a parliamentary inquiry and a level of scrutiny happening within the parliament.

However, I do not think the parliament took the community with them in those changes. There had not been ongoing consultation and there were things that, clearly, we got wrong in the bill. One of those was this potential for members of parliament who are found guilty of criminal offences to have their legal fees potentially covered by the taxpayers, which I think most people in the community would regard as a slap in the face. There is a range of other things.

Certainly, from my perspective as an MP, I have often felt that I got that wrong, did not engage as deeply as I could have with the bill at the time, and that we missed some things. So it has always been my view that if we have an opportunity to revisit it again, make sure that we get it right. But to do that, you need time. So I am very frustrated that the government presented this bill to us last sitting. I only had a briefing last Thursday. There has been no opportunity to actually craft any amendments or do any meaningful consultation. That is very frustrating because we went down this path years ago. This is an opportunity to fix a few things and yet we are not being given the time to actually engage properly.

It is frustrating that this chamber is so often constipated for the first half of the year, and then there is a mad rush to get everything done at the eleventh hour as we head towards the Christmas period. The government is desperately trying to clear the backlog. That is very frustrating. It does not all have to be done right now. It does not all have to be done tonight without an opportunity to actually engage deeply with the content. That said, as I am on my feet I will talk to the proposal that the government has put forward.

The bill will make progress in addressing some of the issues that have been flagged with the existing legislation by the former Commissioner Ann Vanstone but also by other organisations, including the Law Society and the Centre for Public Integrity, and I welcome that. It will amend schedule 5 of the ICAC Act to change the criteria for reimbursement of legal costs under the act to ensure that a public officer who has been convicted of any offence is precluded from reimbursement.

The bill will also restrict the exercise of ministerial discretion over decisions involving reimbursement to current and former ministers and members of parliament. These are important changes that will bring the act into line with community expectations that politicians and public servants should not be paid back their legal costs where they are found to have engaged in wrongdoing.

The bill makes a series of commonsense amendments to address other operational and technical issues, including inserting a delegation of power in relation to the ICAC inspector's power and functions and clarifying the ICAC inspector's ability to investigate the exercise of power under the ICAC Act as it existed prior to 25 August 2021. The bill also 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, addressing concerns that have been raised about the mandatory operation of this section being too restrictive.

I note that the Hon. Connie Bonaros has flagged that she will move a number of amendments to the bill and I indicate that the Greens are supportive of those. I further note that the Crime and Public Integrity Policy Committee will commence a review of the operation of the ICAC Act towards the end of this year. The government has indicated that it is not closed off to the possibility of further changes to the act, and I welcome that. The Greens welcome any further improvements to legislation so that we can ensure the integrity of South Australia's Public Service.

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (21:11): I rise to indicate the opposition's support for the Independent Commission Against Corruption (Miscellaneous) Amendment Bill 2024. This bill introduces important refinements to the Independent Commission Against Corruption Act 2012, with related amendments to the Ombudsman Act 1972 and the Public Finance and Audit Act 1987.

As the Attorney-General has stated, these changes are intended to address operational and technical matters following the comprehensive amendments to the ICAC framework in 2021. While these adjustments are primarily procedural, they are essential in clarifying and strengthening our state's anti-corruption framework. The opposition broadly supports this bill and recognises the importance of maintaining a robust, transparent and effective public accountability and integrity system.

Clause 3 of the bill amends section 39A to allow the commission to apply to the Supreme Court for authorisation to withhold information on investigation outcomes from the subject of that investigation. This power addresses situations where disclosure might compromise an ongoing investigation or pose risk to individuals' safety. While confidentiality is critical to protect the integrity of related investigations, we trust that this power will be used judiciously with the courts as an effective safeguard to ensure that the circumstances warrant non-disclosure.

The amendments to schedule 4 introduce the ability for the inspector to delegate powers within the Office of the Inspector. This step is practical, helping the inspector's office manage oversight responsibilities effectively and avoid conflicts of interest. Additionally, the bill clarifies that the inspector's authority to review decisions extends to those made before the 2021 amendments. This delegation power, combined with expanded review authority, is a positive move that reinforces the integrity of our anti-corruption framework.

Clause 5 addresses the reimbursement of legal costs under schedule 5 of the ICAC Act, adjusting the threshold so that public officers convicted of any offence are precluded from reimbursement rather than just those involving indictable offences linked to corruption. This change is echoed in the Ombudsman Act to ensure a consistent approach. These adjustments strengthen public trust by clarifying that public funds will not cover legal expenses when officials have been convicted of offences, aligning with broader expectations of accountability and integrity in public office. The standards for denying reimbursements, especially for public employees and appointees with a material adverse finding, appear well considered for a range of cases public officials may encounter.

This bill introduces a regulation-making power in the Public Finance and Audit Act to standardise the reimbursement of legal costs for government employees, board appointees, ministers and members of parliament. By moving away from Legal Bulletin 5's ad hoc approach, this new scheme reduces potential conflicts of interest in legal assistance decisions, removing the discretion of political decision-makers and ensuring fairness. The opposition supports this move towards consistency, clarity and impartiality, which will enhance public confidence in our processes.

The amendments in this bill address specific technical issues within our anti-corruption framework and bring much-needed clarity, consistency and transparency in public administration. We believe that good governance relies on both robust and just systems, and we recognise the importance of ensuring that the principles of integrity and accountability are upheld at every level of government.

As the Liberal Party has long upheld, a practical anti-corruption framework must hold officials accountable and protect the rights of those who serve the public in good faith. These amendments take further steps to align with our vision of a government that operates with transparency, impartiality and respect for the law.

By supporting this bill, we reinforce our commitment to strengthening South Australia's integrity systems and ensuring the public can have confidence in their government. We must see that these systems serve all South Australians fairly and efficiently, supporting our public servants in their roles while safeguarding the public trust.

I am confident this bill improves upon the high standards our state deserves. We look forward to seeing these amendments contribute to a South Australia where integrity in public office is not just expected but assured. I know that the Hon. Connie Bonaros has lodged a suite of amendments. I indicate the opposition will not be supporting these as we believe the amendment bill as it stands is sufficient to do what it is intended to do. With that, I conclude my remarks and I commend the bill in its current form to the chamber.

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