HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-05-30 Daily Xml
Contents
Pdf Xml

INDEPENDENT COMMISSIONER AGAINST CORRUPTION BILL

Committee Stage

In committee (resumed on motion).

Clause 43 passed.

Clauses 44 to 53 passed.

Clause 54.

The Hon. J.R. RAU: I move:

Page 35, line 34—After 'Commissioner' insert 'or a court hearing proceedings for an offence against this Act'

This is a brief amendment which is intended to address any possible inconsistency between clause 53 and 54, and I commend it to the house.

Mrs REDMOND: On behalf of the Liberal opposition I will take an executive decision and indicate our concurrence with the clause.

Amendment carried; clause as amended passed.

Clauses 55 to 59 passed.

Schedule 1.

Mrs REDMOND: My question on schedule 1 relates to the comments that the Attorney made in his remarks in response to the question I asked yesterday on clause 43, when he indicated that in his view the Local Government Association (LGA) is covered by the legislation. In particular he referred to the fact that the Ombudsman Act, which I think he said was 1974, deems the LGA to be a public authority.

The LGA, clearly, is not listed in schedule 1, as the public officers, the public authorities and ministers responsible, and so on; there is no direct listing. There is direct listing of people who are elected to the public sector, and the only one that I could find is the fourth item from the bottom of the schedule on page 40, 'A person to whom a function or power of a public authority or a public officer is delegated,' which was the only one that seemed to me to come within the purview of schedule 1. Even that seems to be a bit of a stretch, so I was wondering if the minister could explain on what basis he asserts that the LGA does in fact come within the ambit of the legislation.

The Hon. J.R. RAU: I thank the leader for her question. If we go to page 39, the item which is the fourth from the top, 'A person who constitutes a statutory authority or who is a statutory office holder.'

Mrs Redmond interjecting:

The Hon. J.R. RAU: Well, I think that's the point: we believe they are.

Mrs REDMOND: Can I ask the Attorney to explain the legal basis on which he asserts that the LGA is, in fact, a statutory authority?

The Hon. J.R. RAU: I think that is what I was running through this morning.

Mrs REDMOND: You said they were deemed to be a public authority but that is different from a statutory authority.

The Hon. J.R. RAU: Indeed, but I—

Mrs REDMOND: Attorney, if I can just turn your mind to the fact that the parliament, for instance, has a committee which is specifically deemed to appoint statutory officers, so the Ombudsman's appointment or the Auditor-General's appointment and so on—those statutory authorities are specifically dealt with by a committee of this parliament, whereas the LGA is clearly not in the same bucket as those people. I suspect that if you want to include the LGA it may be necessary to consider an amendment, because my reading of it is that we do not actually capture them at the moment.

The Hon. J.R. RAU: I am happy to take up that invitation, because I do have an amendment in my pocket which will deal with that. Accordingly, I move:

Page 39, after row 6 of the table—

After the entry relating to a member of a local government body and an officer or employee of a local government body insert:

the Local Government Association the Minister responsible for the Premier

of South Australia administration of the Local

Government Act 1999

Mrs REDMOND: Could I suggest that we will deal with it between the houses in any event, because it is not one for which I will take on executive authority. I was merely suggesting that you might have a dilemma if you are asserting—

The Hon. J.R. RAU: I am extremely grateful to the leader for pointing that out. I think we should put it beyond doubt. We will continue to discuss it, if the leader is happy, between here and the other place.

Amendment carried; schedule as amended passed.

Schedule 2.

Mrs REDMOND: I have one question on schedule 2. Part of schedule 2 deals with the conduct of an examination (clause 3 of schedule 2). The clause enables legal representation by a legal practitioner. In the case that a council elected member or a council staff member was seeking such representation would their council be responsible for the associated costs?

The Hon. J.R. RAU: I suspect this is a species of the discussion we were having before. The answer is something that I will look into in more detail between the houses. Again, I think my understanding would be that if they were seeking some advice about their rights or entitlements, and it would be otherwise in accordance to the principles attached to that organisation, they would be indemnified to that extent, and I think we need to make this very plain. If, however, the individual was in fact the target of an investigation and they ultimately wound up being prosecuted, I do not think anybody would reasonably expect the organisation from which they have come to be indemnifying their costs.

The leader has raised this before and the member for Waite has raised this before. I am happy to have some work done on that between the houses. The intention has always been, at least in my mind, that these people, who are officers of public agencies, would in respect of these matters be treated in a similar way to the conduct, as I indicated before, in relation to police officers, where there is a requirement for separate representation.

Mr PENGILLY: I am not a lawyer and I do not pretend to be a lawyer, but can I understand from the Attorney's response that that would rule out the long-suffering ratepayers picking up the tab in the event that there was some sort of action involving a council staff member?

The Hon. J.R. RAU: There are a couple of things about that. I cannot rule out and would not rule out the possibility of some ratepayers' money ultimately being directed towards legal fees. I know member for Finniss has a background in this area so would know more about it, probably, than me, but one of the things we have elsewhere in this bill is a provision for local government to provide legal assistance to elected members.

After discussions with the LGA, strangely enough, that they cannot perhaps recall, but I do, it was agreed that rather than just leave it as a complete blanket, write your own check-type situation, as far as payment of fees is concerned, there would be further conversations between the government and councils about a set of guidelines which would set out the principles by which people would be able to dip into those funds.

So, in as much as that is what you are talking about, that is a matter of detail which will be established through further consultation, and there will be an agreed set of principles which will apply to everybody. But I emphasise that that will mean, I think, inevitably, that there are some people, in particular those people who are targets of investigations, who will not be indemnified, by anybody, because it would be a bizarre situation if you had a person on a corruption charge who is convicted of corruption who goes back to the council and says, 'What about paying the legal fees?'. That would be completely strange.

Mr PENGILLY: Which I guess is my point, chairman. I understand that. I have five councils in my electorate and I regularly get grumbles from the council or selected members, etc., that their legal costs are going through the roof. So, what I am simply trying to ensure—if somebody is guilty as charged, then it is a different case, but if a staff member or a council elected member is up before the body—is that the ratepayers are not further encumbered by rapidly raising legal costs with the council.

The Hon. J.R. RAU: Perhaps the best thing I can do, further to my earlier remarks, is to direct the honourable member to page 62 of the legislation, in particular, 78A which deals with the obtaining of legal advice, which is something I referred to a little while ago, and subsection (3) of that permits expressly: 'to allow for conditions to be imposed on an approval including a condition limiting the expenditure that may be incurred,' so it is entirely in the hands of the council community to sort out these things.

But I think that it would probably be the case that, if you had a situation where you as an elected member were told that you had been summonsed to turn up and speak to the commissioner, when the commissioner has subversive powers in relation to a matter, it would not be unreasonable for you to be able to get some advice from somebody before you went as to what you did and did not have to do. I think that would more likely be the nature and extent of any advice that would be sought.

So, we are certainly not talking here—and I want to make this clear—I do not anticipate that we are going to have witnesses before this commissioner sitting down there with a phalanx of lawyers. Witnesses may wish to ask for legal advice about where they stand, for example, 'Do I have to answer this sort of question? Do I not have to answer this sort of question?' much as they might before going before the Ombudsman, but that is it. So, I think that probably the best analogy you can find would be whatever happens with the Ombudsman, in as much as a person is not a target in relation to costs, is the sort of space we are in.

Mr PENGILLY: Thank you. You just reminded me that I have the Ombudsman coming in to see me.

Schedule passed.

Schedule 3.

Mrs REDMOND: I am trying to make this as easy as possible in terms of the order in which we do things, and obviously going through the different parts separately is probably the easiest way. I can indicate to the committee that I have a series of questions on clauses but no amendments to move until clause 50 of Schedule 3, and then there is one question after that clause. The first question is at clause 13 of Schedule 3, so we can deal with the first 12.

The CHAIR: We will take the schedule as a whole.

Mrs REDMOND: In that case, Attorney, I will have to refer to you to the relevant parts and I will ask the questions. In schedule 3, clause 13, which deals with amendment of the Freedom of Information Act, it is clear that the example cited in the minister's speech on the introduction of the bill is for an indemnity scheme, for example, the Local Government Association Mutual Liability Scheme, and any potential future scheme, and that is to be captured. The question is: is the government aware that this provision captures the workers compensation scheme, which already has responsibilities to the WorkCover Ombudsman; the LGA's asset mutual scheme, which provides insurance for councils, assets and has no public interface; and the income protection scheme, which is for employees of local government; and is it the intention to capture all of these schemes as well?

The Hon. J.R. RAU: I apologise. I appear to be looking at the wrong page. What page number?

Mrs REDMOND: Page 55.

The Hon. J.R. RAU: Mine says to delete Police Complaints Authority and wherever occurring substitute Police Ombudsman. Am I looking at the wrong thing?

Mrs REDMOND: No, but that part as a whole deals with the Freedom of Information Act and so the amendment of the Freedom of Information Act.

The Hon. J.R. RAU: I am not sure I understand the question.

The ACTING CHAIR (Hon. M.J. Wright): Would you like the question repeated?

Mrs REDMOND: I think he understands the question; he is just not sure how it fits into the clause.

The Hon. J.R. RAU: I do not see how it is relevant to this. If I can see exactly what the question is directed at, I can—but it is—

The ACTING CHAIR (Hon. M.J. Wright): Page 55 of the bill, down the bottom.

Mrs REDMOND: I think the Attorney's dilemma is that the actual section, although it refers to amendment of the Freedom of Information Act, the question was more broadly based than the amendment gives rise to.

The Hon. J.R. RAU: Are we talking really about page 56, amendment 14? Is that what we are talking about?

Mrs REDMOND: Yes, I think that is probably the case, minister, that that is really where the reference would be. It comes under the same area of Freedom of Information Act amendment and, in essence, the question is in capturing the LGA's mutual liability scheme (that is an indemnity scheme) that provision captures apparently the workers compensation scheme, which already has responsibilities to the WorkCover Ombudsman, the LGA's asset mutual scheme, which provides insurance to the councils' assets, and the income protection scheme for the protection of employees of council.

The Hon. J.R. RAU: I believe the answer to that question is that the effect of this is to continue the exemption from the application of FOI that currently exists in relation to those matters.

Mrs REDMOND: Since it is not a matter of going them clause by clause, clause 31 of the schedule which is the part dealing with amendment of the Local Government Act, and the question is simply: could the minister outline his intentions to ensure the LGA is consulted on the preparation of the regulations?

The Hon. J.R. RAU: Yes, look, again, harkening back to the fact that the bill has been introduced without consultation with the LGA, the LGA has actually been in consultation with the Hon. Russell Wortley, along with local government in a broader sense, for some time as I understand it. There has been a discussion paper that has been circulated. It has been made clear to them personally by me, and I am sure repeatedly by minister Wortley, that the conversations about the code of conduct leading up to the preparation of the regulations would occur with the local government sector.

My understanding is that the closing time for submissions in relation to that code of conduct has either just been reached or is very shortly about to be reached and we will be moving as quickly as possible to get regulations drafted based on that consultation.

Mrs REDMOND: Before I ask a further question, can I seek an assurance that I am going to be able to ask all the questions because if I have to deal with the whole of the schedule on the normal basis—

The Hon. J.R. RAU: No, just keep going—subject to your ruling, Mr Acting Chair.

The ACTING CHAIR (Hon. M.J. Wright): No, I am happy with that. That is what I was going to say.

Mrs REDMOND: On clause 33, which is a little further down, and it inserts 78A on the obtaining of legal advice, does the minister consider that the scheme established under 78A is a scheme similar to that of the LGA's mutual liability scheme? Could the minister outline the likely types of legal advice that an elected member may wish to obtain in regard to that legal advice?

The Hon. J.R. RAU: Whether or not it is similar to the mutual liability scheme I do not think I am equipped to answer, but I can indicate exactly what sort of things were in contemplation when this provision was being prepared. Let's say, for example, that there is a circumstance where hypothetically the CE of a particular council had a falling out with some or all of the elected members, and the CE decided that the CE would use their position to be able to instruct lawyers so as to secure advice advantageous to the CE with which they could intimidate and threaten the elected members into doing things that they did not believe were appropriate, or did not wish to do, in their capacity as elected people on the council.

This would enable those elected members to have the capacity to go off to a lawyer, within reasonable bounds, and get their own independent advice because they could be being bamboozled by fancy-sounding legal terms or, in effect, the CE who is holding all the cards and they hold none. Obviously, that would be unsatisfactory and it would be contrary to the proper functioning of the council that those people could not obtain that advice so as to make a decision about what they should be doing.

There may be other circumstances where a member of council, or a clique within council, is being supported by the CE and, every time they want something, they get favourable advice but the people either have to go off and spend their own money or they can whistle. Again, within reasonable bounds—and I emphasise 'reasonable bounds'—and within an agreed set of parameters, those people should be entitled to obtain enough advice to enable them to discharge their function properly as an elected member.

Mrs REDMOND: That leads me on to the next question, which relates to clause 37, at page 63. What happens at that clause is that a couple of new clauses are inserted. In particular, I want to refer the Attorney to the insertion of new section 263B. In order to ask the question, I think I need to go quickly through what that inserts. It states:

The recommendations that may be made by the Ombudsman under the Ombudsman Act...on the completion of an investigation of the complaint include that the council—

(a) reprimand the member (including by means of a public statement); or

(b) require the member to attend a specified course of training or instruction, to issue an apology in a particular form or to take other steps; or

(c) require the member to reimburse the council a specified amount; or

(d) ensure that a complaint is lodged against the member in the District Court.

If the member fails to comply with that, the member will be taken to a fail to comply with chapter 5 part 4 and the council is to ensure that the complaint is lodged against a member in the District Court.

Can the minister outline why it is considered more appropriate for a council to impose penalties recommended by the Ombudsman, rather than the Ombudsman simply imposing the penalties himself and then seek the court's enforcement? Why not just delete the council from it? If the Ombudsman has done the investigation, why does the Ombudsman not simply impose the penalty and, if it is not imposed, they go to the court, rather than going via the section under which the council have to do what the Ombudsman has told them to do and, if the person fails to respond to their direction, it is the council's responsibility to take it to the District Court?

The Hon. J.R. RAU: I thank the leader for her question, and I think it is a very good question. I am looking over here to be corrected by people wiser on this topic than I am, but I think there are a couple of points to be made. The first one is that it is inconsistent with the general spread of the functions of the Ombudsman for the Ombudsman to be imposing any sort of penalty as such on anybody. I am not sure that the constitutional problems that apply at a national level apply at state level; nonetheless, it is inconsistent with the functioning of an Ombudsman, and it would be anomalous within the context of the other responsibilities the Ombudsman has for the Ombudsman in this particular circumstance to be imposing a penalty.

Second, the Ombudsman has no capacity to enforce a penalty because the Ombudsman cannot make court orders or anything of that sort, not being a court. They are two issues. The third issue is that I think it probably needs to be borne in mind that at least (a), (b) and (c) of that description in new section 263B are, in the scheme of things, at the more minor end of misbehaviour, bad conduct or something. It was considered that it would be more helpful for that to be dealt with in-house, if possible, rather than being put elsewhere.

I think, from our point of view, it was not so much that we did not really have the choice of saying, 'Well, will the Ombudsman deal with these bits and, if not, it goes to court?' It was more a matter of, 'To be consistent with the other things that the Ombudsman does, the Ombudsman should not really be dealing with any of them in terms of enforcement or that sort of obligation.' Of course, the council could ignore the Ombudsman, and what happens then? I think distilling all that down, the main point is that the Ombudsman is an investigating person who makes reports, not a determiner of facts and imposer of penalties, or whatever.

Mrs REDMOND: I thank the Attorney for the answer, but I guess that the problem then is that neither is the council a determining authority which imposes penalties, and so on. The problem becomes: what if you have an elected member who does not enjoy a favourable relationship with their fellow elected members, or if there is some impediment by which the council may decide either to proceed or not proceed?

It seems to me that it may be an area where we need to give further consideration, because, whilst I accept the Attorney's statement that these are at the more minor end, I would question a power to require a member to reimburse to a council a specified amount of money—I frankly cannot imagine that having happened when I was an elected member of council many years ago—or being directed by the council to attend a course on how to be a good member of local government (and the LGA used to run excellent courses on that) or, equally anger management classes, or whatever it might be.

I think that they are quite compelling sections, but it does seem a little odd still to me that you have a situation where the Ombudsman makes a finding and directs that the council direct, and then says, 'Well, if the person still hasn't responded, we're directing you to then file a complaint.' That still seems not only cumbersome but also could potentially lead to some unfair outcomes if councillors are not necessarily singing from the same song sheet as their other fellow councillors, but I will leave the comment at that.

The Hon. J.R. RAU: I understand the points being made. Can I just say very briefly in response that, under the Local Government Act, council is defined as the whole lot, not just the elected body. The elected body is part of the unit called 'council'. If you look at it from that point of view it is an internal issue in the sense that council as defined in the act has been the subject of a review. The review has determined that there has been conduct that is unsatisfactory for whatever reason, and the recommendation is given to council by the Ombudsman, 'You sort out what's going on inside your outfit.' All that means then practically is that the council, upon receipt of the Ombudsman's recommendation, which might be, for example, a reprimand, is simply that the CE would say, 'Look, you are reprimanded pursuant to the recommendation of the Ombudsman.' Full stop, end of story, easily done.

If the Ombudsman recommended that you go off and do a course about how to be a bit more polite to people at meetings, then there would be that recommendation and that would be all. In the end, if the member refused, which the member might, then the remedy lies within the District Court where you can get enforceable orders. The council is not being cast in the role of enforcing: the council is fully being cast in the role of transmitting, in effect, the recommendation to the member and then taking responsibility if the member fails to comply with the transmitted recommendation of notifying the District Court that they have failed to comply.

Mrs REDMOND: I have two more questions on the schedule and I think that, since I am at large on schedule 3, I will ask all the questions and then move the amendments. My question relates to clause 43, which is under part 13—Amendment of Ombudsman Act. We have already had a bit of discussion about that, of course, and the Attorney has indicated a willingness to have a look at the first schedule as to whether they are completely captured. The question is really based on the fact that the government appears to intend at least to include the LGA, and I can understand that there are arguments in favour of that given that they are financed out of, effectively, ratepayers' money, and so on.

I can understand that, but it then, because of that, would capture the mutual liability scheme that they administer. The difficulty then becomes councils are not required to use that mutual liability scheme and they can go to seek insurance in the private sector. The question obviously becomes: it is still the same public money, if that is your argument for including the LGA, and if they are going to then go outside to the private sector, to what extent is it the intention of the act to capture the private sector insurance within the ambit of the act?

The Hon. J.R. RAU: There is none. I think it is important to remember that the mutual liability scheme is a scheme, in effect, administered and controlled—and, might I say, to the best of my knowledge, quite well—by the LGA, which is itself a creature of statute. If some of the other creatures of that statute, namely, council X, Y or Z, decide to opt out (if, indeed, they are capable of doing that, and I am not sure if they are but if the leader says they are that may be the case, but let us assume they can) of the mutual liability scheme in order to obtain their insurance cover, which I think probably would be unlikely but possible, they would then be dealing with a completely private sector body and the same concern about the administration of the fund would not apply, nor would the coverage.

Mrs REDMOND: I have one more question before I go on to moving the amendment standing in my name and that relates to clause 60. I think the Attorney-General may well have to take it on notice. The question is: in which other states do the equivalents of the Public Finance and Audit Act apply to organisations such as the LGA mutual liability scheme?

The Hon. J.R. RAU: I think you are correct: I will have to take it on notice. Can I say, in general terms, the principles are reasonably clear. We have a creature of statute, we have a statutory scheme, the scheme has implications for ratepayers and state taxpayers and, potentially, the state Treasury and, in those circumstances, it is not, in a sense, an independent fund and, therefore, in principle, I do not see why there should be any objection to that; but I will take the question on notice.

The ACTING CHAIR (Hon. M.J. Wright): Before the leader moves her first amendment, it is my understanding that some of these are consequential.

Mrs REDMOND: I thought of that, Mr Acting Chairman, and I can tell you what they are. I can indicate that, in moving amendment No. 1, and I will speak to it, if that falls (which I have a suspicion it could do), we will then have dealt with Nos 1, 2, 8, 9 and 11. Maybe I will just go through them as we get to them, but those five are all connected so I will speak to the one, if I may.

The ACTING CHAIR (Hon. M.J. Wright): Yes, please. You are in order.

Mrs REDMOND: I move:

Clause 50, page 69, line 7 [Schedule 3, clause 50, inserted Part 5F hearing]—Delete 'Policy'

The amendments that I will be moving propose to enhance the committee which is proposed. This section deals with the Parliamentary Conduct Committee, and we are trying to come to some, we think, better position and we are trying to do it so that it is more than just a book club for reading the reports commissioned by the Police Act, the Serious and Organised Crime (Control) Act, the Serious and Organised Crime (Unexplained Wealth) Act, and the ICAC Commissioner, the Police Commissioner and the Police Ombudsman reports. The amendments will significantly expand the scope of the committee and ensure that it can truly exercise effective oversight of the ICAC.

The particular amendment that I have moved is the first of five amendments that proposes to remove the word 'Policy' from the name of the Crime and Corruption Policy Review Committee, so it will just be the Crime and Corruption Review Committee. The reason for this is not simply superficial. As the Liberal opposition has raised previously, both in this place and in the media, we recognise the need for strong, effective oversight and, indeed, it was part of what we had planned in the original bill that I introduced.

At the time the recent organised crime bills were being debated, the opposition proposed amendments to one of the bills to create an oversight committee to monitor the use and effectiveness of those particular laws. Being an advocate of efficiency, the opposition proposed that the same committee that would oversee the organised crime laws could also oversee the ICAC. In the midst of the debate, the Attorney-General requested that we withdraw our amendments dealing with the parliamentary committee to that bill so that they could be considered through the ICAC Bill. I see that the Attorney is nodding his acknowledgement that that was indeed the conversation that occurred.

However, the committee proposed by the Attorney-General is basically limited to considering annual reports. We consider that that is not really oversight and that it is warranted of draconian organised crime laws and significant new anticorruption powers. In our view, by removing the word 'Policy'—and, of course, it is part of a package—what we hope to do is actually make this committee a broader committee so that it can look into more than simply the annual reports of those organisations. What we are wanting, simply, is more accountability. As I said, the Attorney did previously indicate that he wanted us to withdraw our amendments under the serious and organised crime legislation on the basis that it could be reconsidered through the ICAC Bill. If the Attorney is not minded to agree with us today, I would invite his further consideration of this proposition between the houses.

The Hon. J.R. RAU: I am grateful to the leader for her indication about this. I think I substantially understand what all the amendments are seeking to do. Quite frankly, there are some issues there and I will be very brief about this, because this is not a matter that I have been able to reflect on at any great length. My quick reading of it suggests that, firstly, it goes from being a joint house committee based in the House of Assembly to being a joint house committee of equal numbers based in the Legislative Council. Secondly, the scope of the committee's operating purview is substantially changed.

Thirdly, the two provisions in the existing clauses, which are subclauses (2) and (3), which, in effect, prevent that committee becoming the leaking point for all the information we are trying to keep confidential through every other means, as I understand it, are being deleted. On the way it is framed at present, we have gone to this elaborate exercise of protecting the information, for very good reasons, because we do not want people slandered or ridiculed in public on the basis that they might have merely been called as a witness, yet the provisions in the existing bill which stop the committee going off and doing exactly that—under privilege mind you as well, even worse—have been removed. I think that is a serious concern. We might as well ignore all the rest of the provisions here.

I will have discussions with the leader over the weeks to come about this, but on my first reading of it I think we risk setting up a kangaroo court, armed with parliamentary privilege, and unable to be quarantined from rummaging through anything it wants that the commission might hold. That would be extremely dangerous for everybody concerned, and goes way beyond what any responsible person would consider to be oversight.

I may have misread that, and if I have I am happy to be persuaded that I have, but I am very concerned. We need to talk about the detail, but the big picture is that the removal of subclauses (2) and (3) raises a very serious question as to whether this might turn into a monster.

Amendment negatived.

Mrs REDMOND: I am not proceeding with amendment No. 2. I move:

Clause 50, page 69, line 14 [Schedule 3, clause 50, inserted section 15Q(1)]—Delete '7' and substitute '6'

The ACTING CHAIR (Hon. M.J. Wright): Do you agree that amendment No. 4 is consequential to amendment No. 3?

Mrs REDMOND: Yes, I agree that amendment No. 4 is consequential to amendment No. 3. We have now dealt with amendments Nos 1, 2, 8, 9 and 11 and we will now deal with amendments Nos 3 and 4.

The ACTING CHAIR (Hon. M.J. Wright): Yes.

Mrs REDMOND: This amendment which is simply to delete 7 and substitute 6 seeks to reduce the overall number of members appointed to the committee so that, as the consequential amendment proposes, each house of parliament has equal representation. The problem—and I would invite the Attorney to consider this because one day the Attorney will be in opposition instead of in government—is that the committees proposed are at the moment entirely government dominated and we think that in fact you get more openness and accountability if you can say, 'This isn't dominated by either side.' In our view the reality is that government dominance will always ensure a predetermined outcome.

Under joint standing orders the Presiding Officer has both a deliberative and a casting vote so government dominance will be unequivocal. This committee is proposed to inquire into reports of government departments and government appointments. As it stands, that means the government is investigating the government because the government is going to dominate that committee and the government is the people who are making the appointment. As the government in waiting we are proposing standards that, basically, we are prepared to stand by and that is that there be much more equal representation on the committee. Our argument is simply that for the sake of openness, accountability and transparency in our view it is appropriate to have an equal number of people on that committee.

The Hon. J.R. RAU: I understand the leader's point. What they are doing is creating places for three people from each chamber. Pro rata I think that is a bit out of whack, we should have five from here and two or three from there, but never mind. I understand that point but not only are we having three from each chamber but we are saying the chair must come from the other place and, as the leader quite rightly points out, the chair would have a deliberative and a casting vote.

So it is an upper house controlled committee. I take the leader's point; that in and of itself is not necessarily a problem to me, but what it does—there has to be a trade-off and a balance struck between the autonomy of the government of the day (which I understand is the point that the leader is making) on the one hand and what the committee's powers might be, particularly when they become intrusive and might conceivably involve witch-hunts being conducted, perversely, against the leaders concerned. An opposition in control of this committee might decide that they are going to start rummaging through all the records held by the ICAC and ask questions like, 'Has this member of the government been before the committee? What were they there for?'

Mrs Redmond interjecting:

The Hon. J.R. RAU: Indeed; all under privilege, with absolutely no recourse for anybody. It is sort of like the threat to civil liberties or the protection of people's rights and privacy that would be posed by having public hearings. If you reckon that is a problem—and I think we all do and we have all basically embraced the idea of closing this thing to the public until there is a prosecution—you are raising it to the power of 100 by allowing a parliamentary committee, with the protection of privilege, to be able to rummage through there and do as it likes. That, I think, is a problem.

We will have further talks about this. I do not want to waste the committee's time arguing it in any detail. I certainly understand what the leader is trying to do and, as I said, I am not dismissing it as being without merit but I do think we need to get some perspective here as to what the consequences might be if there are not appropriate constraints on what that committee can do.

Amendment negatived.

Mrs REDMOND: I move:

Clause 50, page 69, after line 24 [Schedule 3, clause 50, inserted section 15Q]—After subsection (1) insert:

(1a) A minister of the Crown is not eligible for appointment to the Committee.

The amendment basically proposes that ministers should not be eligible for appointment to the committee, and that is consistent with the membership restrictions for numerous other committees of the parliament. The Economic and Finance Committee, the Environment, Resources and Development Committee, the Legislative Review Committee, the Public Works Committee, the Social Development Committee, and the one I referred to earlier, the Statutory Authorities Review Committee, all have that restriction that ministers are not members.

Under section 19 of the Parliamentary Committees Act, a committee may make a recommendation to its appointing house. If the report contains a recommendation it has to be referred to the minister responsible, so, for obvious reasons, you do not then have the minister on that committee. This scope of the committee is such that it could consider a wide range of matters across any portfolio, so we believe that this is a logical reform, and I would invite the minister to seriously consider it.

The Hon. J.R. RAU: Can I say to the Leader of the Opposition: this will not stop us coming to an agreement.

Amendment negatived.

The ACTING CHAIR (Hon. M.J. Wright): I will just check with the leader: No. 7 is consequential to 6?

Mrs REDMOND: Correct. I move:

Clause 50, page 69, lines 27 and 28 [Schedule 3, clause 50, inserted section 15Q[3]—Delete 'House of Assembly' and substitute 'Legislative Council'

Amendment No. 6 basically substitutes 'Legislative Council'. I have a sneaking suspicion of how the Attorney might feel about this, but it would require the presiding officer of the committee to be elected from the appointed members of the Legislative Council. Again, it is about ensuring that the committee is one step removed from the government and can provide effective oversight on the matters within its scope. I expect that the Attorney will repeat the comments; he could just insert them.

The Hon. J.R. RAU: I do.

Amendment negatived.

Mrs REDMOND: I move:

Clause 50, page 70, lines 9 to 13 [Schedule 3, clause 50, inserted section 15R(1)(b) and (c)]—Delete paragraphs (b) and (c) and substitute:

(b) to inquire into and consider, as the Committee thinks fit—

(i) the exercise by the Independent Commissioner Against Corruption and the Office for Public Integrity of their functions; and

(ii) the administration and operation of the relevant legislation, including—

(A) the effectiveness and adequacy of the relevant legislation at achieving its objects; and

(B) the impact of the relevant legislation on persons who are not involved in corruption, misconduct or maladministration in public administration or organised crime; and

(C) the impact of judicial decisions in relation to the relevant legislation; and

(iii) trends and changes in corruption, misconduct and maladministration in public administration and organised crime; and

(iv) practices and methods relating to identifying and dealing with corruption, misconduct and maladministration in public administration and organised crime; and

(c) to report to both Houses on changes that the Committee considers should be made to relevant legislation or to the structure or procedures of law enforcement authorities or any other matter arising in the course of the performance of the Committee's functions that the Committee thinks should be drawn to the attention of both Houses; and

(d) to perform such other functions as are imposed on the Committee under this or any other Act or by resolution of both Houses.

This amendment No. 10 is slightly larger. As I previously raised, the government has designed the committee to be a bit of a book club reading the annual reports of the agencies. We think that true oversight requires more than this, so we have substituted new paragraphs (b) and (c) into the bill and then added various details.

We want oversight of the organised crime laws and related matters. What we are proposing here is that the committee has more latitude than simply what is being reported from events that have passed. The committee should quite rightly have the ability to consider organised crime and corruption more broadly and, indeed, make recommendations about that. It needs to be able to consider the effectiveness of current laws, to investigate possible legislative reform, monitor trends in organised crime and corruption, and make recommendations. It should also oversee the actions taken by the Independent Commissioner Against Corruption and the Office of Public Integrity.

It should oversee the impact on law-abiding South Australians who might inadvertently be caught up in broad ranging powers proposed in both the organised crime legislation and the ICAC proposal. Although I have already heard what the Attorney-General is likely to respond to this, I would urge him to consider that there should be some capacity in that committee to at least do those things that I was just talking about. Obviously I am very supportive of the ICAC, but if it turns out that we do see innocent parties being caught up in it and damaged by it, who better to look at how that has happened and what legislative reform might be necessary to prevent that from happening again than this committee, the parliamentary oversight committee?

Even if he is not minded to go as far as we are in terms of just what he thinks would be a star chamber, I think that there is merit in the Attorney considering that there could be some capacity in this committee not just to look at the specific reports of the specific agencies but to look at the whole system in the broad and analyse whether there are problems with its operation and make recommendations as to how those problems might best be addressed. After all, if we see it in the chamber we are likely to set up a select committee to do that, and it would make sense that the people who are looking at it all the time would be the appropriate ones.

The Hon. J.R. RAU: I am more than happy to have a look at it. I genuinely would like to have further discussions with the leader about these matters between the houses. If the function of the committee was limited to finding people who might be oppressed by misbehaviour by the commissioner—and let's hope that would never occur—and if that is all they did that would be one thing. The trouble is, I fear, to create a committee capable of doing that would also create a committee capable of doing other far more destructive things which would include, perhaps, scapegoating people, etc., as I mentioned before, all out of privilege. Please, let's talk about it, but not today.

Amendment negatived.

Mrs REDMOND: I move:

Clause 50, page 70, lines 20 to 22 [Schedule 3, clause 50, inserted section 15R(2)(c)]—Delete paragraph (c)

Amendment No. 12 simply seeks to remove the proposed section 15R(2)(c) which provides that the committee cannot report on the performance of the functions of the Independent Commissioner Against Corruption, the South Australia Police or the Police Ombudsman, and consistent with what we have already been discussing, the opposition considers that the committee should be looking at the effectiveness of the integrity network. The amendment basically supports that focus by allowing the committee to report on the performance of the function of the key agencies.

The Hon. J.R. RAU: I think I have said enough on that topic.

Amendment negatived.

Mrs REDMOND: I move:

Clause 50, page 70, lines 23 to 29 [Schedule 3, clause 50, inserted section 15R(3)]—Delete subsection (3)

This amendment proposes the deletion of that subsection because it restricts the information which the commissioner can provide to the committee, and clearly the same arguments which we have already been putting and to which the Attorney-General has already been responding apply to this. We appreciate that the commissioner would want to be cautious in the provision of sensitive information to the committee but we would be happy to leave that to the commissioner's discretion.

At the moment, the bill as it stands prohibits the commissioner from providing any information to the committee unless the commissioner could otherwise make a public statement, and that seems to us to be a too narrow discretion for the commissioner. So, again, I invite the Attorney to consider whether there is a way to grant that slightly increased discretion, even if he is not prepared to come all the way to what we are asking for.

Amendment negatived.

Mrs REDMOND: I move:

Clause 50, page 70, after line 29 [Schedule 3, clause 50, inserted section 15R]—After subsection (3) insert:

(4) In this section—

relevant legislation means—

(a) the Serious and Organised Crime (Control) Act 2008; or

(b) the Serious and Organised Crime (Unexplained Wealth) Act 2009; or

(c) the Independent Commissioner Against Corruption Act 2012; or

(d) other legislation dealing with, affecting or otherwise aimed at preventing corruption, misconduct or maladministration in public administration or organised crime.

Again, it is almost consequential but not quite—it goes along the same theme. We are seeking to put in a new subsection to define 'relevant organisations' so that the committee is enhanced by being able to consider relevant legislation of the Serious and Organised Crime (Control) Act, the Serious and Organised Crime (Unexplained Wealth) Act, or the Independent Commissioner Against Corruption Act, or any other legislation dealing with, affecting or otherwise aimed at preventing corruption, misconduct or maladministration in public administration or organised crime. Really, its only purpose is to expand the scope of the committee in accordance with what we have already said, and I anticipate what the Attorney-General's response is likely to be.

Amendment negatived; schedule passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:35): I move:

That this bill be now read a third time.

In doing so, I thank very much the Leader of the Opposition for her very thoughtful remarks about the matter, and indeed the members for Davenport and Waite. The member for Bragg spent a lot of time bashing me up, so I can't thank her very much for what she did, but I do thank the other two. All of the matters that we have canvassed in the parliament today I have indicated should be the subject of further discussion, and that is a genuine invitation. I invite, in particular, the Leader of the Opposition, the members for Waite and Davenport perhaps to reduce down to some written form basically the points that they wish to discuss further—and we will obviously have a look at the Hansard as well.

Mrs Redmond interjecting:

The Hon. J.R. RAU: Yes, but if we got some sort of agenda we can talk around. I think they were good points that were made and, quite frankly, if we get a better bill because of those discussions, that is fine. I know the members opposite have spent a lot of time thinking about this. I have spent a lot of time thinking about it; in fact, I have lived this thing for the last 18 months.

Mrs Redmond: Only 18 months? I've lived it for five years.

The Hon. J.R. RAU: Well, look, we have all spent a lot of time and had a lot of effort gone into this one way or another, and I thank all the speakers for their contributions.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT