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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-05-29 Daily Xml
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INDEPENDENT COMMISSIONER AGAINST CORRUPTION BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

Mrs REDMOND (Heysen—Leader of the Opposition) (15:49): Before the lunch break I had been providing some introductory remarks in terms of the origins of this bill and, indeed, the sorts of behaviour that give rise to the need to have an independent commission against corruption. I mentioned in those preliminary remarks the fact that I had attended the very first Australian public sector anticorruption conference in October 2007; so, almost five years ago now. Some things were brought up at the conference in terms of the nature of the conduct which was considered to be corrupt.

Indeed, in my own report on attendance at that conference, I said that mostly what the conference brought home is that corruption is not mostly about the high profile cases that attract enormous media interest. It is really about building within any organisation a culture which is alert to possibilities of corruption, and to ensure that, in the case of government departments or agencies or local councils, every procurement contract, every tender which is let, every licence which is granted, and every planning or other decision which is made occur on a fair, open and accountable basis.

Before lunch, I took members through examples of the sorts of things that could lead to corrupt conduct. I used those examples to illustrate the point that all sorts of behaviours which we would normally think were somewhat inoffensive could potentially become corrupt and, certainly, if one had a conflict of interest that could easily trip into corrupt conduct, but I made the point that most people do not engage in corrupt conduct. Indeed, for corrupt conduct to occur, there usually has to be a convergence of three elements, that is, motive, opportunity and a low threat of detection. If you can remove even one of those elements, then that will, by itself, minimise the threat of corrupt conduct occurring.

The reality of our lives is that most people do not commit corrupt acts. Even if all three of those elements—motive, opportunity and the likelihood or unlikelihood of being detected—are present, most of us still would not commit corrupt conduct and, basically, our society relies on people behaving according to their own very sound moral and ethical codes. At that conference they also talked about the factors associated with corrupt conduct, and these were distilled from a review of the investigation reports of the various ICACs around the country. It is quite an extensive list but I will go through it because I think it is important for us to understand what it is we are trying to overcome in this bill.

1. Public officials developed inappropriate relationships with clients.

2. Public officials failed to declare conflicts of interest (pre-existing relationships).

3. Inadequate supervision or work review.

4. Aspects of the culture of the agency.

5. Inadequate knowledge, skills or experience of corrupt public official or related supervisor or manager.

That can often occur. I have come across qualified legal practitioners who do not recognise a conflict of interest when it basically hits them in the face.

6. Inadequate policies, procedures or systems.

7. Failure to follow existing policies, procedures or systems.

8. Poorly managed contracting or commercial relationships.

That is if you have tendering advertisements that do not have enough detail, or no reply deadline for a published tender and so on, or no contract and so on.

9. Significant change imposed on the agency (for example, an internal restructure, or the introduction of new functions or commercialisation).

In one particular jurisdiction, in New Orleans after Cyclone Katrina, because there had been such a massive change in what had to happen in that area—significant change was imposed, it was not imposed for any invalid reason, and it was significant change in how the agencies had to react—they found a 452 per cent increase in the level of corruption that was occurring in New Orleans after the agencies had these massive changes, and the potential for corruption, of course, increased.

10. Inadequate agency resources.

11. Inadequate legislative provisions.

I will talk a bit more about that.

12. Nature of the work or the agency.

For example, some jobs involve particularly close working relationships and, therefore, there can be more potential for corruption to exist.

13. Corrupt public officials had high levels of personal discretion, autonomy, power or influence.

So, the higher up the pecking order you are, the less likely you are to be fully supervised and, therefore, the more potential you have to commit corrupt acts.

14. Poor understanding of proper agency functioning by certain sectors of the community.

15. Failures of senior or corporate management.

16. Public officials had feelings of dissatisfaction or perceptions of unfairness.

Now, this factor was reported in only four investigations but, for example, staff dissatisfaction with new premises and potential conditions and salaries following a council boundary change had actually been one of the factors leading to some corrupt conduct. Well down the list is:

17. Potential for significant gain—financial or otherwise.

I had already mentioned in my preliminary remarks the fact that someone with a gambling addiction, a drug addiction or other addiction may well be motivated to commit corrupt acts simply because of the financial gain they can get from it. Lastly, there is:

18. Highly competitive operating environment.

I think we see that in a range of areas.

Those, in summary, are the sort of findings that came out of the first national conference on corruption and, as I say, one of the most remarkable things was premier Morris Iemma in his remarks at the opening saying that any jurisdiction that thinks they do not need one of these is delusional.

Returning to the bill at the moment, of course, the government has introduced this bill and largely it reflects what I had proposed in the bill that I introduced some years ago, which the Attorney-General just neatly ignored in his comments about the origins of their bill but largely it does reflect it inasmuch as my bill had three essential elements.

Both bills are concerned with public administration. In some other jurisdictions, such as Hong Kong, you get into the area of the corruption in private enterprise and so on but, in Australia, generally, we have public administration as the target of these organisations. Within the organisation there were to be three arms under both my bill and the government's bill.

The first and most obvious is the investigative process: that is, that this organisation will be responsible for determining whether corrupt conduct has occurred. In both the government's model and my model, there were not to be actual prosecutions by the ICAC. They were to be taken care of by the Director of Public Prosecutions or the police, but other organisations outside the ICAC will actually be responsible for the consequences of the investigation and the ICAC is to be responsible for the investigation.

The second component was that of education because, from the illustrations that I have already given about the sorts of conduct that have occurred that were actual, real-life examples, it is obvious that even those with significant education in the area will not necessarily agree on the point at which conduct does become corrupt.

There is a significant issue about educating the public and certainly parliament, but probably most importantly the broader public sector. I mean by that everyone from the directors of state government departments through to the heads of various agencies through to not only the elected members of local councils but the staff and officers of local government, because everyone who holds a public office—the bill sets it out and I will come to that in due course—potentially must know what is corrupt conduct in order to avoid stepping in it.

I believe that sometimes people actually fall into corruption not because they have intended to become corrupt but because something happens and they do not actually realise that they have even behaved corruptly until they have actually stepped over that line. Conflict of interest, for instance, is often confused with corruption. That is one of the areas where there are similarities between the bill that I proposed and the bill that the government proposes.

There were certain other elements in common: that is, we had the provision for secret surveillance and, of course, the other bill—the related bill under the telecommunications act—deals with that particular issue. I will say more about that in due course, but both bills had those elements. We also provided for parliamentary review of the conduct of the ICAC. I was very concerned, and obviously one of the things that all politicians are concerned about is that, when an ICAC exists, there is the potential for people's reputations to be damaged very badly unless there is sufficient protection put into the legislation to make sure that people cannot simply make an unfounded allegation and go out into the public and say, 'I have reported so and so to ICAC,' and proceed to have a vast media campaign about whatever the issue might be, without there necessarily being even one shred of evidence to impugn the person who has been named.

Indeed, not only do we need to have provisions to protect that from happening—and the government has gone about that in a particular way—but can I say that I had a conversation with a former assistant commissioner in New South Wales who said to me that, in fact, he makes it very clear when people come into the ICAC, if they are going in to report someone, he says to them, 'If you go out and say anything about this, then I will make it my business to make sure that you are investigated just as thoroughly as the person you are complaining about.' I think the government's bill does a little bit better than that particular provision, because I think that is an unsatisfactory way to manage it, and the government has decided to have a matter of no public hearings.

I want to go to the detail of the layout of the bill because it is a reasonably lengthy bill. It is divided into six parts and then into three schedules, pursuant to the legislation. The very first part is the preliminary (as it is called in the description of it) and it contains the usual things like the short title, the commencement date and so on but, importantly, it contains the objects, the definitions clause and deals with what is meant by corruption, misconduct and maladministration, and they become fairly important.

What it does is seeks to establish in South Australia an independent body focused entirely on preserving and safeguarding confidence and the integrity of the functions performed by public offices, agencies and authorities in the state of South Australia. When you want to find out what the public offices are, that is dealt with in the schedule, and I will come to that in due course.

It provides the mechanism to do that by a two-step process, basically. It establishes the Independent Commission Against Corruption and it separately establishes what is called the Office of Public Integrity. Now, that is something which is novel. It is certainly different from what I put into my bill and it is certainly, as I understand it, novel compared to the other mechanisms in the other states. We will wait to see whether it is the best way to work it but, clearly, what the government intends is that it is a one-stop shop. People come in the front door of the Office of Public Integrity and they make their complaint.

There will obviously need to be officers within that Office of Public Integrity who have a fair knowledge of who is covered by what because there will, of course, still be other organisations that will deal with certain complaints. For instance, the Ombudsman's office will not cease to exist and, equally, what is now called the Police Complaints Authority becomes the Police—

The Hon. J.R. Rau: Ombudsman.

Mrs REDMOND: —Ombudsman, under the legislation. Thank you, Attorney.

The Hon. R.B. Such: Just a different name on the door.

Mrs REDMOND: Yes, it will still be the Police Complaints Authority. It is absolutely clear to me that not all complaints about police officers are complaints which would justify the involvement of the Independent Commission Against Corruption. Certainly, there are police officers who simply misbehave in some minor way, but there is no hint of corruption in their behaviour. I will not go into detail about some of the funny circumstances I have seen with some of our younger police officers particularly, who simply make a mistake in their behaviour whilst wearing the uniform but there is no hint in them that they are subject to corrupt conduct.

This is really I think—and, in fact, I think I recall the Attorney in our briefing on this matter using the term—the 'sorting house'. This is the place where people can come to, rather than having to figure it out for themselves and going to an office where they are told, 'No, it is not us: it is someone else,' then they go to another office and they say, 'No, it is not us: it is someone else,' and then they go somewhere else. Rather than that happening, I can see some sense in what the Attorney is putting, that you have this office which is the doorway through which all the complaints are received, and then someone in there helps them to sort out whether it is something that is corrupt or whether it is something that needs to go off to the Ombudsman or the Police Complaints Authority, which will be renamed the Police Ombudsman.

Indeed, we may have other ombudsmen in the state at that stage. For instance, we have a Health and Community Services Complaints Commissioner already and, equally, the possibility of an education ombudsman has been discussed from time to time. There could be any number of complaints that come in through that front door. I suspect it might be overwhelmed at first by the number of people bringing in complaints. One question I would ask the Attorney is: what about privatised organisations? If you have an organisation that is no longer under the control of the government, where do complaints go about those organisations and are they going to be covered within the ambit of this bill?

Part 2 sets out the proposed structure and functions of the ICAC. One of the key features which differs in this bill, compared to the bill that I originally proposed, is that, in performing the functions of the investigation, examinations relating to alleged corruption in public administration are to be conducted in private. There are arguments each way about whether that is the appropriate way to conduct these investigations.

As I have mentioned before, I think there is clearly some benefit, in the sense that people can have their reputations besmirched—and it is often said that if you throw enough mud it will stick, and people's reputations can be damaged, and damaged irreparably, through processes if they become too public. On the other hand, we are a state that for a long time has had a reputation of being suppression city, and we suppress things which are not suppressed in other states.

Certainly, the proposal as it is now mooted gets over the problem that I see currently with suppressions, which is that modern technology makes statewide suppressions a nonsense, because whatever is suppressed in this state can simply be published in another state and obtained online. Even if we went national, we still have the problem of international publication. Whereas, under this proposal, because it is private, it does stop allegations being made and published too soon. Having said that, I want to refer to a paper.

The Hon. J.R. Rau: It is an investigation at this stage, not a court process.

Mrs REDMOND: The Attorney correctly points out that it is an investigation at this stage. I refer to a keynote address, which was given at the most recent public sector anticorruption conference, held in Fremantle in November last year. This is part of the address given by the Hon. Wayne Martin, the Chief Justice of Western Australia. He talks specifically about public accountability of anticorruption agencies. He says:

Public confidence is an essential component for the effective operation of any anti-corruption agency. Public confidence is enhanced by public accountability.

He then goes on to talk about the oversight mechanisms.

More controversial is the use of public hearings as a mechanism of public accountability.

The question of whether or not anti-corruption agencies should generally conduct hearings in public has been a subject of controversy in most jurisdictions which have created such agencies. In Western Australia, it has been a subject of particular controversy since the creation of the Corruption and Crime Commission, given that its predecessor, the Anti-Corruption Commission, never held hearings in public.

The controversy arises from the conflict between a number of competing considerations. The considerations in favour of public hearings include the proposition succinctly put by Frank Costigan QC.

Everyone would remember the Costigan name, royal commission and so on. This is a quote from Frank Costigan QC:

Once you start investigating allegations of public corruption privately, then you add the smell of a cover-up.

That is what Frank Costigan had to say. I continue:

Other considerations which favour public hearings include the fact that the community is aware of the work being done by the agency, and useful information can flow to the agency as a result of publicity given to its activities. Importantly, the conduct of public hearings performs an educative role which can be of great significance in the fulfilment of the preventative function which is conferred upon many anti-corruption agencies...

Then he goes on to say:

On the other hand, there are a number of considerations against the holding of public hearings, perhaps the most significant of which is [and I have already mentioned it] the irreparable damage that might be done to the reputations of particular individuals during the course of such hearings, irrespective of the findings ultimately made by the agency. The prospect of damage to reputation is exacerbated by the risk that the public might focus on the questions asked of a witness during a hearing, rather than the answers given, especially where the line of questioning is salacious. Other considerations include possible prejudice to the investigative function by discouraging those who might have information from coming forward, lest they be caught in the glare of publicity—

and whilst all those in this chamber are fairly familiar with the glare of publicity, it is very much something that is front of mind of people—they try to avoid it at all costs, and I think that is very real risk—

and by alerting those who might themselves be subject to subsequent investigation of the lines of inquiry or cross-examination...

In other words, someone who may be associated or nearby this type of corruption and has something to fear themselves may have time, in fact, to be made aware of the nature of the investigation as proceeding and, indeed, divest themselves of evidence and other things like that. Chief Justice Wayne Martin goes on to conclude:

The balancing of these competing considerations is a difficult task. There can be no general answer to the question of where the balance lies, because in any particular inquiry, or part of an inquiry, the weight to be given to particular considerations will depend upon the particular circumstances of the inquiry. The only opinion I would venture to those charged with making these difficult assessments is drawn from my experience in the courts and from my observation that public confidence in the integrity of the administration of justice critically depends upon the transparency of that process, and the fact that it is only in the most rare and exceptional circumstances that any part of that process will be conducted behind closed doors. That experience, and the significance which I attach to the educative and preventative functions, incline me to the view that hearings should be held in public unless there is a good reason to the contrary. In the context of the administration of justice, it has long been accepted that the risk of damage to reputation is the price which must be paid for transparency.

I indicate that we have given considerable thought and debate to the comments made by His Honour Justice Martin and, indeed, to other people in regard to this. We are not going to seek to amend the government's legislation in relation to this aspect, but we will be keeping very much a watching brief on what happens and how things transpire in the light of these closed hearings. The examinations must be conducted in private, and the functions of the ICAC are summarised as follows:

Once corruption is identified and investigated it will refer it for prosecution to SAPOL or the police ombudsman for investigation and prosecution;

To assist inquiry agencies and public authorities to identify and deal with misconduct and maladministration in public administration;

To give directions or guidance to inquiry agencies and public authorities and to exercise the powers of inquiry agencies in dealing with misconduct and maladministration as the ICAC considers appropriate;

To evaluate practices, policies and procedures of inquiry agencies and public authorities with a view to advancing comprehensive and effective systems for preventing or minimising corruption, misconduct and maladministration in public administration;

To conduct or facilitate the conduct of educational programs designed to prevent or minimise corruption; and

To perform other functions conferred on the ICAC by the measure or any other act.

They can also, at the direction of the Attorney-General, undertake a review of the legislative scheme related to public administration and make recommendations arising from that.

As I say, one thing we have in common, in spite of the privacy of the investigations, is this focus on how to prevent public administration from being corrupted. It is not just a matter of the education of the people who are involved in public administration, but very much, particularly with new computerised systems, looking at the systems by (often) forensic analysts who can look at computer systems to see where the potential for corruption exists. The more you can overcome that and lower your chances of corruption, the better the system will be and the less work the other branches of the ICAC will have to do.

I mention in passing the fact that I am on the Stirling Hospital board. We had a young man come to work for us who ended up in gaol as a result of his behaviour. He corruptly used the position he held within the hospital to make payments to himself, which was not found out for some time. We have had to since examine our systems and make sure that those systems are as tight as possible, because where your local sporting club and so on has relied, and probably still relies, on simply countersigning cheques, having two trusted individuals who both agree to sign a cheque, because of computer keeping records we do not have the same facility and quite often only one person is charged with the management of accounts and so on. That deals with part 2 of the bill.

Part 3, as I have already mentioned (it appears in part 3 of the bill), is the Office for Public Integrity. It is separate from the ICAC in terms of its staff and functions and is directly responsible to the ICAC in the performance of those functions. Its functions, as I have broadly explained, are: to receive and assess complaints about public administration from members of the public; to receive and assess reports about corruption, misconduct and maladministration in public administration from inquiry agencies, public authorities and public offices—so, you have the two lots of people coming in already: the public and people who are public servants and so on—to make recommendations as to whether and by whom complaints and reports should be investigated; and to perform other functions assigned by the ICAC.

The OPI does not have any power itself to resolve complaints. It only has the power to identify the nature of the complaint and to decide where that complaint should go. I suspect that there may be some confusion on the part of those officers, unless they are exceptionally clever. I suspect that we may find, as this progresses, that there will be occasions when they refer a complaint to the Ombudsman but when the Ombudsman looks into it sufficiently it may turn out to be something corrupt and has to come back through their office to get to the ICAC. So, I do not think they will always get it correct, but I can see some sense in what the Attorney is proposing in relation to having this front door that people can go to.

Members of the public can, and should, still approach an agency directly, such as the Ombudsman. If they know that their matter is one which the Ombudsman can look into or they know it is a complaint about a police officer so it should go to the Police Ombudsman, then it is entirely appropriate that they go direct to that agency and not have to come through the front door, but there are many circumstances where they may not know which agency. Indeed, it is not too hard to imagine that there could be circumstances where there could be different components of what starts out as a single issue and the different components need to be referred to different agencies.

I see the Attorney nodding at that. As previously practising lawyers, I am sure we can both readily imagine a number of scenarios where people come and tell a story and there are components which might involve misbehaviour, or something the Ombudsman should look into, or corrupt conduct, and they need to be separated and investigated separately.

We then get to the procedures and powers for both the Office for Public Integrity (that is, that front door) and the ICAC itself. The first thing to be done is that the OPI must establish a system for receiving complaints from the public. The ICAC (once appointed) has to prepare directions and guidelines governing reporting to the OPI of matters that an inquiry agency, public authority or public officer reasonably suspect involves corruption, misconduct or maladministration in public administration.

The guidelines are to address the types of matters which must be reported to the OPI and to provide guidance as to how this is to be undertaken. In any event, upon receiving a complaint or report the OPI must undertake an assessment according to the criteria laid out in division 2 of this particular part and the action, complaint or report has to be dealt with accordingly, depending on whether the matter relates to a potential issue of corruption or some other problem that can be referred elsewhere.

If it does raise a potential issue of corruption in public administration that could be the subject of a prosecution, it is a matter that has to be either investigated by the ICAC or referred to SAPOL or the Police Ombudsman if the issue concerns a special constable, police officer or other law enforcement agency. Division 2 sets out the process, powers and procedures in relation to corruption.

Generally speaking, an investigation into corruption in public administration can be triggered in three ways. It can be a complaint or report received by the Office of Public Integrity (OPI) which has been received, assessed and forwarded to the ICAC. The ICAC can exercise its powers with its own initiative; it can simply decide that it needs to investigate something and it can exercise those powers. Thirdly, the Attorney-General can report a matter directly to the ICAC for his or her consideration.

The ICAC will be assisted in investigations by investigators and examiners. The investigators are out in the field. They collect the evidence, they speak with witnesses and they will need to be reasonably well trained. I suspect, as with the New South Wales ICAC, we will find that a lot of police officers will go to work there. Some very senior police officers were, sadly, lost from this state because they went to work for the ICAC commissioner in New South Wales. The reason for that is we need to be sure that those who are taking statements actually know what to do—what to ask and what not to ask—in terms of not leading witnesses and making sure that a statement is taken correctly and forms part of an appropriate chain of evidence. So those people are the investigators and a police officer seconded to the ICAC will automatically be an investigator under the bill and it is intended that officers should carry across all their SAPOL powers to use in ICAC investigations as required.

There will potentially be others who could well be people who have not been police officers, who are not current serving police officers or who do not have a background as a police officer who could nevertheless become investigators under the ICAC. They have to be appointed to the role, and I have no doubt that the ICAC commissioner will intend that they satisfy some criteria in order to be allowed to carry out that investigative process and they will have to be issued with an identity card.

In addition to the investigators we will have examiners. They are responsible for conducting examinations and that role can be undertaken by the commissioner himself (I use 'himself' in the grammatically correct form embracing both female and male so I am not suggesting that only a male might be appointed to that role) or it could be a deputy commissioner, an investigator or any other external person appointed to the role. I imagine that the number of examiners appointed will depend on the nature and amount of work that is coming into the system.

There are provisions in this part to deal with people making false or misleading complaints (I think it was a fine of about $10,000 and two years' potential imprisonment) because we want to make sure that people do not use this ICAC as a mechanism for simply trying to force their views on the rest of the world. We only want to have people who make appropriate complaints to the ICAC.

There are extensive accountability provisions in part 5 of the bill and that includes reporting to parliament annually and an independent review of the exercise of the ICAC's powers. There are provisions in the other bill that we will deal with later on such as provisions for the interception of telephone communications. Those things are covered in terms of their reporting powers under the separate legislation, but there is provision in here to deal with how that all happens.

Furthermore, the ICAC has to keep the Attorney-General informed of the general conduct of the functions of the ICAC and the OPI on a general basis and provide information at the request of the Attorney-General. So, the Attorney-General is prohibited from seeking information identifying a particular matter, identifying a particular person who may be under investigation. However, the Attorney-General on the one hand is able to ask the ICAC for reports as to what they are doing, and on the other hand the ICAC has an obligation to keep him informed on the general conduct and functions of the ICAC.

It is proposed to establish, by amendment to the Parliamentary Committees Act, a crime and corruption policy review committee. That committee will be tasked with the function of examining each annual and other report laid before both houses of parliament that are prepared by the ICAC and the Commissioner of Police or the Police Ombudsman. There are some things about that that are a bit technical, and I do not intend to go into them.

Finally, part 6 is miscellaneous provisions, which is the usual format for a bill. You get through all the detailed stuff and then you have got a range of miscellaneous matters that are necessary to facilitate the operational aspects, such as serving of notices and all those sorts of regular things. Subject to the discretion of the ICAC, it is envisaged that notices issued in relation to a formal examination will be limited to personal service. So, they actually have to find the person if they are going to bring them in and investigate them.

A lot of the time they may be bringing in other people who are not the subject of the investigation. That is of some interest, given the Attorney's announcement at the beginning of question time about the review of the provisions relating to things like telegrams and modern methods of communication. It will be interesting to see how we continue to deal with personal service. I expect that we will not be able to change it very much, but there may be some changes.

There is no obligation on persons to maintain secrecy, interestingly. It sounds like a strange thing. As I said, I have spoken to a former deputy commissioner in New South Wales, who said that he made it imperative that people maintain their silence before at least a prima facie case had been made out. You could not run in and say, 'I have reported so-and-so to the ICAC' because that would damage reputations. However, although it has that heading, clause 48 is there simply to confirm that a person may disclose information to the ICAC or an investigator despite the provision of any other act or common law relating to confidentiality, except where that law is designed to keep the identity of an informant secret. The clause is designed to enable a person to disclose information to the commissioner or investigator despite the fact that it would otherwise not be allowed.

For instance, if you are an employee in a particular department, and the legislation governing you is the Public Service Management Act and any particular legislation of that department, you may well have in that legislation provisions that would prevent you from disclosing information that came to you in the course of that employment. The purpose of clause 48 is simply to say that this overrides that, that you can actually go to the ICAC if you believe there is corruption going on and say, 'Hey listen, for these reasons I have seen this, this and this. I therefore think that corruption is going on.' So there are provisions as to those things.

As I say, this is the section where you find proceedings that will be heard in private, proceedings under the act other than for an offence. If someone has breached the provisions within the department under the act, they do not necessarily have to be held in private, but other proceedings under the act are to be held in private. Proceedings for an offence are to be heard in private as a public hearing may prejudice an investigation under the act or unduly prejudice the reputation of a person other than the defendant.

One of the other things that I wanted to come to in here is the schedule, because the schedule indicates who is covered, and it is quite an extensive list of people who are covered. It provides:

Schedule 1—Public offers, public authorities and responsible Ministers

For the purposes of this Act, the table below lists public officers, the public authorities responsible for the officers and the Ministers responsible for the public authorities.

So it tells us who is covered. I will not read out all of them but I will cover a certain number of them. Firstly:

a person who constitutes a statutory authority or who is a statutory office holder;

a person who is a member of the governing body of a statutory authority;

an officer or employee of a statutory authority or statutory office holder or a Public Service employee assigned to assist the statutory authority or statutory office holder;

So, that is all the statutory authorities and just about anyone that you can think of associated with them.

a member of a local government body;

Again, that is the elected members. Then we have:

an officer or employee of a local government body;

So, all the non-elected people who are working in local government. Further:

the chief executive of an administrative unit of the Public Service;

So, the head of the department is covered. And further:

a Public Service employee (other than a chief executive);

a police officer;

a protective security officer appointed under the Protective Security Act 2007;

an officer or employee appointed by the employing authority under the Technical and FurtherEducation Act 1975;

a person appointed by the Premier under the Public Sector Act 2009;

a person appointed by the Minister under the Public Sector Act 2009;

any other public sector employee;

I am curious, and would be interested in an answer from the Attorney as to the very last one of the people mentioned in schedule 1, that is:

a person declared by regulation to be a public officer.

Given the extensive list above that, I am curious as to who that could be. Are there any examples of what sort of person that would be; that is, 'persons who have previously been declared by regulation to be a public officer'.

In general, that is an outline of the bill and where it is going. There are a number of areas where there are a number of questions to be asked. We certainly will be moving a couple of amendments on our side, so we will be going into committee, and I do not intend to hold the house forever in terms of my comments on the bill. But there are a number of things that I think need to be canvassed, and I have some questions here which arise from the fact that, as I said at the outset, the Local Government Association has not had the opportunity, in its view, to respond as fully as it wanted to.

The Hon. J.R. RAU: Mr Acting Speaker, I am very happy to move to committee at any time the leader wishes to do so. I am more than happy to answer any questions she has. I do not know that she will get as much of a free exchange of question and answer in the format of the second reading as we would in committee, but it is entirely a matter for her. I am very happy to answer any questions that she has, but I am not sure we can actually do that comfortably in the second reading. For what it is worth, if the leader is happy to move to the committee stage of the bill, I think I can answer everything I can.

The ACTING SPEAKER (Hon. M.J. Wright): The Attorney is correct. It is a matter for the leader and the leader would be well aware that questions are in committee stage, but I will allow a little bit of latitude.

Mrs REDMOND: Thank you, Mr Acting Speaker, and I thank the Attorney for his offer in that regard. Given that the Local Government Association has provided its questions referenced to the particular clauses of the bill, I am happy to do it in the committee stage, because it will take some time to get through these as well as our other matters.

The Hon. J.R. RAU: Once again, I am sorry, Mr Acting Speaker, but I am not quite sure of the formality of this. My understanding is that the telecommunications bill is not formally in front of us presently, but I think the honourable leader is aware that that bill is entirely consequential upon this bill and that the provisions of that bill are basically entirely laid down by the commonwealth because they are the parliament that manages that sort of thing. I want to indicate that I am happy to take her questions about that one as well, provided that does not offend other members of the house, in the context of the discussion about the main bill and, in that way, perhaps save a little bit of time.

If it assists the honourable leader in coming to a finalisation of her contributions in the second reading, I certainly will not object if she makes any remarks she wants to make about the other bill as well in the context of the second reading and, if nobody else objects, we can, in effect, deal with the second reading and questions and answers in respect of both of them at the same time, because they are tied up, if that assists in any way.

The ACTING SPEAKER (Hon. M.J. Wright): Is the leader happy with that approach?

Mrs REDMOND: Mr Acting Speaker, I think it is probably easier to deal with the other bill separately. I understand that it is a separate bill which is entirely consequential on this bill and obviously, if this bill did not get up, you would not even be proceeding with that bill. I understand that, but I do want to make some separate comments on that and I think it is just easier for us to deal with that separately. There are just a couple more things that I wanted to comment on. One of them is this issue of the criminal onus that the government is insisting on. It is one of the differences between the bill that we originally proposed and the bill that is now before us.

It is a matter of some concern, I think, inasmuch as, at that very first conference that I attended in 2007 and before we had settled on the model that we were going to adopt for our independent commission against corruption, one of the most telling points raised in the keynote addresses at that conference was the fact that, although South Australia already had its anticorruption branch of the police force and various other provisions in the criminal law which purportedly were going to deal with corruption—and which the former attorney-general in backing the former premier consistently said would deal with potential corruption in this state—one of the criticisms raised about this state was that it required proof on the criminal onus, and the reality of corruption is that that is too high a standard a lot of the time, even though it is clear to the public that corruption has occurred and corrupt conduct has occurred.

We believe that the ICAC should be allowed to investigate misconduct or maladministration, subject to conditions, and to allow the international definition, I think, would be a better way to go.

The Hon. J.R. Rau interjecting:

Mrs REDMOND: I thank the Attorney for his continuing to be so helpful, but it really is easier for me if I simply make my comments and deal with what I have to deal with. As I say, it is five years now since we introduced our original bill to establish the ICAC and the fact is that we have had the cartridgegate affair and the foodgate affair involving public sector employees who have potentially obtained personal benefits through promotions when ordering large amounts of stock or services for public sector departments, and can I just comment on that.

Again it comes down to a lot of education and simply understanding. I can tell you that, when I ran my legal practice, I used to regularly order stationery, and it was a consistent part of the firm that I mostly dealt with that they had a book in which you could decide what you needed in the way of pens, pads and all those things. Consistently if you ordered more than a certain amount, you got a particular present, and if you ordered a bit more, you got a particular present and that was fine, because I was the owner of the business.

The Hon. J.R. Rau: Flybuys.

Mrs REDMOND: The Attorney points out Flybuys, which is the same thing. It is fine when you are the owner of the business and you are getting the benefit; that is perfectly legitimate. The only problem that has occurred is that public servants have either not recognised or deliberately gone into a situation which is identical to what happens in private enterprise, except that they have taken a personal benefit when, in fact, their role requires them not to take a personal benefit.

The Hon. J.R. Rau: I think they might have over-ordered, too.

An honourable member: You're not wrong.

Mrs REDMOND: And, of course, as the Attorney points out, they might have over-ordered and, what is more, I suspect they over-ordered at inflated prices, so it did become quite corrupt conduct in a number of cases. It is part of the difficulty of identifying what amounts to corrupt conduct that we have something like cartridgegate where, as I say, if I ordered those things in my private business and I had received a benefit, and if I had paid extra for them and I had ordered extra, that is entirely a matter for me because I am the one who has to pay for them.

The difficulty for the public servants was that they were not the ones who were having to pay for them. It was not their money that they were spending, but they were getting the personal benefit. I think that those sorts of things are, of necessity, a part of a vast educative process that we will have to go through to make sure that people at large and particularly those employed in the public sector—statutory authorities, local government and so on—do understand what it all means.

Other examples have featured in the courts recently, like a manipulation of car defect records to remove defect notices—another little bit of corruption. Of course, we have had the investigations of Burnside and Charles Sturt councils. In terms of council investigations, I know that (because I spoke to the guys in New South Wales) with the Wollongong council in New South Wales, which was a famous investigation—there have been many councils investigated, of course—they did undercover surveillance work for 18 months before that investigation became known. There were 18 months of listening to things.

My favourite story about the Wollongong situation, of course, is the fact that a couple of clever people got involved at the point where they pretended to the people who were behaving corruptly. They went to them and they said, 'We are from the ICAC and, if you pay us, we will make this go away.' They were silly enough, even then, to pay up. They thought they were making the whole investigation go away because someone was clever enough to insert themselves into the process and make it all go away.

Labor has consistently opposed having an ICAC in this state. As I pointed out in relation to the funding, what we are getting now is certainly what you would call ICAC lite, but I do welcome the fact that we are going to have an ICAC. I note that, in fact, there is to be a review of it in five years, I think, at the end of the time.

I think that the introduction of the legislation is to be welcomed. I note that, in the previous sitting week, the Attorney wanted us to hurry on both this bill and the associated telecommunications bill on the basis that they could not advertise the position until they had the legislation through. Now that, I would have thought, was at law the correct position, but this government itself had previously advertised a position when we had not passed the legislation for something else in this parliament. We will be interested to see what they go through. I just hope it is not one of our Thinkers in Residence who gets the job as the ICAC commissioner.

The last thing that I want to cover in general comments is the protections in the bill. One is that, where a matter is assessed as trivial, vexatious or frivolous, or has been previously dealt with and there is no need to re-examine or, for good reason, no further action should be taken, the Office of Public Integrity need not deal further with the matter. The second protection—and I mentioned it briefly earlier—is that it is an offence to make a false or misleading statement in a complaint or report, or to make a complaint or report, knowing that there are no grounds for making the complaint or the report.

Those two protections—and I would concede that the privacy of the hearings, whilst there are question marks over whether they are going to be completely transparent and accountable and the arguments that I have already mentioned—go some way to protect against problems of people making false accusations.

I sometimes think that maybe we need to put in some provisions to say not only that but that, if you are a newspaper publisher or a television station putting on the news, we should have a power, in some circumstances—not to make it the most regular thing—to say, 'If you have reported on a matter in a certain way, if it subsequently turns out that the person who was being criticised is actually completely innocent, then perhaps it would be reasonable to require the person who has published, in whatever way, to then come back and publish a similar level of retraction and statement that the person has indeed been found to have no case to answer or has been completely exonerated,' or whatever the terms may be.

I would like to think that there could be some level of justice for people who are wrongly accused. Of course, we have had some famous cases in this state. I know the member for Davenport has pursued one case for a long, long time, where an officer of Families and Communities was not only wrongly taken to court, but it was clear that the media had been tipped off that he was going to be arrested. Even though the police arrived at his house at six in the morning, the media was there ready to meet him while he was arrested. Although he was ultimately exonerated, it cost him a lot of money. Not only that, but many people never get redress of having any publication of just how fully they have been exonerated.

Indeed, I was listening to the earlier debate on the livestock bill, and mention was made of Tom Brinkworth down in the South-East, who was similarly given all the bad publicity of the allegations made against him but never was there proper publication of just how unfounded those allegations were and how innocent he was of the charges which had been brought. I think that would provide a further level of protection but, as I said, it is not something that we will pursuing. This is a bill we are going to support. We believe that having an ICAC in this state will be of benefit to the state. As I said when I was shadow attorney and I introduced my bill in relation to this, I always thought if I managed to get this into the state as attorney-general it would be a really good thing. I would be able to say, 'Well, I have achieved a really fundamental and profound change in this state as a result of coming into this place.'

Having spent some years on local government, I look back and there are only a couple of things, in all the hours that I spent in local government, where I think, 'The township of Aldgate probably would not be there today but for the fact that I was on the council and managed to stop the building inspector who had ordered the demolition of every shop in the main street without so much as mentioning it to anyone beforehand, and to stop them, if there was a spillage on the freeway, from bringing hazardous material off the freeway into our dump in Stirling or Heathfield.' I managed those two things in all the years I was on council. There were a number of other small things, but really they were the main things.

Similarly, I think getting an ICAC into this state will be a major achievement for the Liberal Party, because I am sure that, but for the Liberal Party, having pursued this issue for so long, over many years and in spite of the intractable opposition from the government, this bill would not have eventuated. We stuck to our guns. Clearly, the public wanted to have an ICAC and ultimately, on the basis that the government decided it was not going to be a winner for them, they decided that they would reverse their position and introduce an ICAC.

As I said, the funding of it makes me think it is going to be ICAC light, but I do welcome the introduction into this chamber of the Independent Commissioner Against Corruption Bill 2012 and indicate the opposition's support. We will be moving some amendments during the committee stage and I will also be asking questions on behalf of the Local Government Association, who make fair complaint that this government has not allowed them the consultation that they deserved in relation to this bill before it was brought in.

The Hon. R.B. SUCH (Fisher) (16:49): I will be brief. First, I commend the Attorney for bringing this bill before the house and also the efforts of the Leader of the Opposition over a long period of time to achieve, via this house, the implementation of an act relating to dealing with the issue of corruption. The point has been made that it is difficult, really, to define corruption absolutely precisely because often what you are talking about is maladministration, and it gets into a bit of a grey area. I would consider that corruption generally results in a personal benefit, normally financial but it may take another form.

I have experience in local government. I was on the City of Mitcham and the council at the time passed a resolution giving the outgoing CEO a Holden Berliner as a retirement present. That information was suppressed under the confidential items of the council, but the question is: is that corruption? If the council authorises the gift of a car to the outgoing CEO and then suppresses it from the knowledge of the ratepayers is that corruption, is that maladministration or is it something else?

The Mitcham council and the Unley council are the joint owners of Centennial Park, and in the time I was on the Mitcham council I could not understand why people were fighting to get onto a cemetery committee. I found out later why. It was because the benefits accrued were substantial. The people administering the cemetery became the recipients of a SAAB. Other people got a SAAB provided to them as well, and there were things like crayfish suppers which were brought up on the catafalque within the cemetery premises—the chapel; and nearly everyone on the board got a trip around the world. I realised after a time why people were keen to be on the cemetery board.

Now, is that corruption or is that over-generous recompense to people who are on the board of a cemetery? I think that they are some of the dilemmas that one faces. In relation to those particular examples, it took nearly 10 years to get hold of the privately-commissioned audit report on what had happened at that cemetery—10 years. I remember discussing it with the former auditor-general, and he said, 'Well, look, I don't have any power as an auditor-general to look at those sorts of things because local government doesn't come under my responsibility.'

There were some other experiences, too. The former chief of staff to premier John Olsen on her government credit card incurred expenses in excess of $200,000 buying all sorts of things, and I still have the documentation on that issue. Likewise the head of one of the government departments, John Cambridge. He used his government credit card extensively to buy protective clothing. That is just one example. It was R.M. Williams clothing. Stationery he used to get from a shop in the Adelaide Arcade called Pencraft, which does not supply stationery: it supplies expensive pens.

I have seen those (and I still have, as far as I know) records of those credit card transactions. When I raised that issue with the former auditor-general, he said, 'Well, it's not clear what the rules are for people in those positions.' Nothing therefore happened even though the amounts, in the case of one of them, ran over $200,000 purchasing clothing from stores, and so on. I just make the point—which was highlighted earlier talking about public servants who may have over-ordered stationery—that there are elements in this which are somewhat grey.

The particular bill changes the name of the Police Complaints Authority to Police Ombudsman. I would hope that at some stage—and it is really a related matter—that the police in South Australia are brought under some proper form of scrutiny. As in the case of corruption (which I do not believe is widespread in South Australia, but I do not know because we have never investigated thoroughly) I do not believe that within the police force there is serious wrongdoing, but currently we do not have a mechanism whereby the police are held accountable for what they do apart from the so-called Police Complaints Authority, which in my experience and that of constituents for whom I have had to go into bat, is a very ineffective and inappropriate mechanism for investigating complaints against the police. In theory, the police answer to the police minister, but if the police minister does not see that accountability as a key role then the police in South Australia (unlike other states) are not accountable for their activities, and they should be.

The bill does not deal effectively with the issue of the Anti-Corruption Branch. I guess that is subsumed now, but in my experience that is a very poor section of the police department in terms of the way it is operated. Its behaviour, its actions, and so on, have been, in my view, (not always, but often) substandard. As to its dealings with the parliament, members can talk to senior staff of parliament to find out how the Anti-Corruption Branch has acted. In the case of my own staff, they accused my staff of leaking material, which was false, and the person who received the so-called leaked material can testify to that. The Anti-Corruption Branch did not even interview my staff, it just made what I consider to be a smear against my staff accusing them of leaking something, which was completely false.

I think the Anti-Corruption Branch needs to be completely remodelled, or reformulated. I am not sure that this bill will achieve that, but it should. Likewise, the Police Complaints Authority needs to be completely remodelled and refocused. I do not agree with taking away from the Police Complaints Authority the need to give reasons for its lack of action. It is very hard to get the Police Complaints Authority to do anything, in my experience. If it does not want to do it then it does not do it. If it does not want to do it then it just leaves it. I do not think that is appropriate.

I am also concerned that the police have an internal disciplinary process that involves a magistrate. I have grave concerns about that with respect to individual police officers. We do not know what goes on there. We do not know anything about the process. I do not think that is appropriate, as a form of dealing with the police.

With respect to the Police Complaints Authority, when I have asked what has happened by way of punishment of a police officer who has done the wrong thing, I receive no answer. The police will not tell you. Even though a police officer has admitted that he falsified documents and so on, the police will say it is a private matter and will not divulge the punishment, nor will the Police Complaints Authority. I do not find that acceptable.

As to the provision of the parliamentary committees, I note that the opposition is going to move some amendments. If you are going to have oversight by parliamentary committees then they have to have some real teeth, not to conduct another investigation but to ensure that matters relating to corruption have been properly and thoroughly investigated. Whether the opposition amendment is in the right format remains to be seen, but I think the intention is good. Parliamentary committees need to be looked at in terms of ensuring that they have the correct focus and the ability to have meaningful oversight over this whole area of anti-corruption.

In essence, I welcome this bill. It has been a long time coming. To his credit, the Attorney has brought it before the parliament. As I said at the start, to the credit of the Leader of the Opposition and others in here who have been pushing this issue for a long time, it looks like we are finally going to get to a point where the issue of corruption can be dealt with more efficiently and effectively.

I personally do not believe that South Australia is riddled with corruption. I note that that was the argument used by the former premier, Mike Rann: that we did not need an ICAC because we did not have corruption here. That was, I guess, the essence of his argument. However, unless you investigate, you are never going to know, and I know that that gets into the realm of Donald Rumsfeld. I am fairly confident that, in South Australia, we do not have widespread corruption in any area of government or, likewise, in the private sector.

I reiterate the point made by the Leader of the Opposition. I think it is important that we have a review of this bill, and I think it is important that all public officials are well aware of what constitutes corruption so that we do not have people inadvertently getting into trouble by doing things that they should not do. I understand that that is already in the Public Service procedures. When someone comes into the Public Service, they are informed of that. I think that needs to be reinforced with all public officials to make sure that people do not see things such as over-ordering stationery with side benefits as harmless.

With those words, I commend this bill and look forward to its speedy passage, hopefully with some minor changes to improve some aspects of it. However, I think the general intention of it is excellent.

The Hon. I.F. EVANS (Davenport) (17:01): I just want to touch on this particular bill. I will not go over the comments made by my leader, who has set out the history behind the bill and her significant work on behalf of the party in achieving this outcome and this response from the government.

I want to touch on three or four issues that the minister may want to consider in between the houses and, indeed, that the house might want to consider in relation to this bill. The first issue that is not clear to me is how this bill interacts with parliamentary privilege. It is not clear to me whether the ICAC and its investigative officers and the powers that are given to the ICAC have the opportunity to override parliamentary privilege.

As a practising politician, I would like to know exactly what the bill does in relation to parliamentary privilege, because there are a number of circumstances where oppositions of any colour could come into possession of documents that they want to raise at a particular time only to have them raided by an investigative officer or the ICAC. I am not sure how it interacts.

Speaker Lewis previously ruled about access of police officers to the building. Speaker Gunn might have, too, from memory. I am not clear at all about how this body would interact with parliamentary privilege; there is nothing in the second reading speech or in the legislation itself that I could see. So I think it is only fair that the parliament be crystal clear about how this particular body, and all its powers, is going to impact on parliamentary privilege, if at all.

If it is not going to impact on parliamentary privilege, then maybe there should be a line in the bill just so that it is crystal clear to those who are enforcing the particular legislation the intent of parliament. Parliamentary privilege is an unusual beast, Mr Deputy Speaker, as you know. In my time here, certainly speaker Gunn had an issue with the police about access to the parliament—

Mrs Redmond: Speaker Lewis.

The Hon. I.F. EVANS: Speaker Lewis had an issue with the police and access to the parliament. If I recall, speaker Snelling took a matter to the court in defence—was it speaker Snelling? It might have been another speaker on behalf of the member for Playford; I cannot remember. There was certainly an issue about privilege that went to court. I do not want to be unfair to the member for Playford, but my memory is that there was an issue when they went to court over a letter or something regarding lawyers and defended the principle of privilege. I am not interested in the issue, I am more interested in the principle of protection of privilege. Privilege has been established for centuries, and it is there for good reason, so if this body is going to have extraordinary powers it is best that we know if it is going to have any impact—

The Hon. J.R. Rau interjecting:

The Hon. I.F. EVANS: That's alright. I am just putting it on the record so that we are clear. If there is no intention to impact on privilege, then a line in the bill would offer some guidance in 50 years' time to whoever might be in this place or, indeed, occupying the position of ICAC commissioner.

The other issue I raise is whether people who make reckless claims, as distinct from knowingly false claims, should also be brought into the bill. There are people out there who like to take pot shots at certain people, whether they be premiers, politicians or local council members. As I understand it, the bill essentially protects them if someone deliberately makes a false statement—

The Hon. J.R. Rau: Or makes a statement that's untrue.

The Hon. I.F. EVANS: —if they know the statement to be untrue, right—then I just wonder whether (and I am not sure of the legal words; better legal minds than mine have to come up with them) the principle of whether someone recklessly makes the claim should be addressed at some point because it is one thing to make a statement knowing it is untrue and another thing to make a statement having not researched it at all and just go and make the statement.

There are going to be people in elected positions who will attract the attention of certain personalities in the community who will not make an untrue statement but who will consistently make reckless statements. I am not sure that it would not be of benefit to the legislation to deal with the issue of reckless claims. Again, I leave it to the Attorney and better legal minds than mine to work out whether that should be dealt with.

If that is dealt with, the issue of costs to the person who the claim is made against also needs to be dealt with because I am not sure what the bill does in relation to costs for the person who the allegations are made against. If an allegation is made knowing it not to be true, does the person the allegation is made against get their legal costs reimbursed by the person who made the allegation? I am not sure. My view is that they should if they have made a statement knowing it not to be true. I would go as far as to say that if they are found to be reckless in making the claim, then the issue of costs can be made out again in that case.

The Hon. J.R. Rau interjecting:

The Hon. I.F. EVANS: The Attorney interjects, and I appreciate that the interjection is a polite one trying to inform me; I accept that. He says it is a criminal injury matter. I am not sure that that helps me with my legal costs. I can name plenty of people who have been falsely accused of things who have not been able to get their money back. I went through an inquiry with the Auditor-General at one point, and I was not criticised in relation to the matter, but I was lucky I was a minister of the Crown and the taxpayer picked up my legal costs.

I make the point that MPs, and indeed local councillors and others who are subject to these claims, will not have the protection of the Crown to seek legal costs, and so a false, malicious or reckless claim would expose those people to significant legal costs. Of course, a member of parliament or elected official is going to attract, I would suspect, more reckless claims, because they want our scalp for all sorts of reasons. I am not against the principle of an ICAC. I just think we need to be very careful that the claims that go to the ICAC are sincere claims and not motivated by other motivations.

The other point I want to raise with the house is whether elected officials—whether federal, state or local government—should be given some priority in the investigative process if some allegation is made against them. I just make the point that there is going to be a certain group of individuals who think they will be able to make up some claim. I know that if it is known to be false it is dealt with, but they are going to try to come up with a claim to damage an elected official.

To my mind, given the nature of elected officials, there would be some benefit in having claims against elected officials given some priority within the system, because while a public servant's job is on the line in that sense, an elected official can change government. An allegation against an elected official could change government, and we are seeing that play out to some degree in rather unfortunate circumstances in Canberra. We saw one investigation there take three years. I think it would be unfortunate if government changed and someone's reputation was injured on the basis that the investigators were looking at some public servant maladministration issue while the elected official was left hanging.

I can tell you, Mr Deputy Speaker, having gone through an Auditor-General's inquiry and faced a number of QCs across the table, it does put a lot of pressure on the individual, even if you believe you have done absolutely nothing wrong, to prepare for it and to deal with all the issues. I remember in that case, in very unfortunate circumstances, the then opposition, with the support of the Independents in the house at that time, agreed and moved a bill to take away our right to legal representation at taxpayers' expense, even though we were ministers of the Crown, which, I think, was an unfortunate decision of the parliament and one which I hope is not revisited any time soon.

I am hoping the minister can deal with those issues either in his response to the second reading or in between the houses, because I think those issues would improve the bill and provide the right balance in establishing the ICAC.

Ms CHAPMAN (Bragg) (17:13): I rise to speak on the Independent Commission Against Corruption Bill 2012. The Leader of the Opposition has comprehensively and very ably set out on behalf of the opposition our position on this matter. I thank her for that and also for her tireless efforts in progressing the establishment of an ICAC for the benefit of South Australians. That has been over a number of years. During the time that I was shadow attorney, I took pride in taking this issue to the people of South Australia at the 2010 election and the Liberal Party has for a number of years now been committed to introducing this protection for the people of South Australia.

Essentially, this bill is confined to being an inquiry facility for persons in public office. From my assessment, relative to the more superior model proposed by the opposition, this is what I call the Weight Watchers version. It is the skinny ICAC, with an opening office, the Office of Public Integrity, designed to screen, sift and divert lower-level activity and complaint and have a streamlined body which will deal with corruption on a very exclusive and high level. There are disadvantages to that.

It is clear, however, that the government's final commitment to progress this body and establish it reinforces their attitude over a number of years and demonstrates how they have come kicking and screaming to this position, particularly as the funding allocation is expected to be so thin. Not only was this announced during the previous statements of the Attorney but the myriad of criticism of the cost under the opposition model has been reflected. That is disappointing because, clearly, such a body does need to be able to undertake its investigations and ultimately prosecute an investigation to deal with a high level of crime which does require expensive personnel, experienced professionals, and equipment. I note that we are to consider the amendments to the federal Telecommunications Act to accommodate that.

The position of the former premier is one which I think needs to go on the record. He had for a number of years run the line in principle, 'We don't need an ICAC. We don't need a watchdog.' Even though we have come from the appalling management, or mismanagement, of the Randall Ashbourne affair under the Rann administration he still came through episodes of that suggesting that there was no basis upon which to have an independent authority, even though it came with resounding criticism, subsequent to that inquiry, of the fact that the government had kept this inquiry in-house and had not referred the matter for prosecution to the police immediately. That in itself should have alerted the government, and others on it, particularly the then attorney (although he was inextricably tied up in that little episode), to the need to have an ICAC.

Having watched the tide of cries for an independent commission against corruption mount some momentum over a number of years, he then switched to a position of having a federal body, a federal ICAC. His position as at October 2009 was, and I quote:

...a national ICAC, like the National Crime Authority, would guarantee independence from any administration.

As we led up to the 2010 election, he said on 22 February 2010:

I support a national ICAC and I think that everyone thinks that makes common sense.

That was a quantum leap from his previous position. We then had statements again even later that day:

If there's going to be an ICAC it should be a national ICAC.

And as we came, as I say, into the election he said:

We've got an Anti-Corruption Branch, which is independent, and if there's going to be an ICAC it should be a national ICAC that basically covers the whole country. I've said that before.

That is what we saw at that stage. Then, of course, we moved with some pressure from others. Nick Xenophon, Senator from South Australia and former member of this parliament said in the lead-up to the 2010 election:

If you're against corruption you should be for a local ICAC and for the Premier to be calling for a national body is really a nonsense, it's a stall story.

The then premier again said:

This seems to me to make sense. Just as we have a National Crime Authority—to have a National ICA—to avoid constant duplication and expense.

The calls then expanded, and more people came forward to support the establishment of a state ICAC. Stephen Pallaras QC, the Director of Public Prosecutions, on 3 June 2010 said, 'But what I expect is that in the fullness of time, however long that may take, South Australia will have an ICAC.'

The Attorney-General had a different history. Suffice to say that it seemed, I thought, that he had sat quietly during the earlier deliberations and proposals for an ICAC. By the time we got to the election—he was still, of course, sitting on the back bench, but nevertheless he undertook the role after the election in 2010—back in 2010, even though there had been an announcement on 6 May 2010 that there would be a review of the state's public integrity system but it remained opposed to a state-based ICAC, Attorney-General Rau said, 'Demands for the establishment of a state so-called ICAC have been noisy but unsupported by a substratum of fact or logic.' He went on to say:

If areas are identified that might be improved they will be improved...the government holds no illusions about the possibility of corruption at any level of government...If areas are identified that might be improved, they will be improved.

So, an acknowledgement that corruption is there; it is acknowledged by the government at the highest levels of government, yet there is a consistent refusal to take it up.

Finally, a colleague across the border, the then Victorian premier John Brumby, announced on 3 June 2010 that his government would establish an anticorruption commission and, as members would know, their IBAC has subsequently been established. I must say that it is pretty much as skinny as ours, and it has come under some criticism for that; nevertheless, they acknowledge that it was necessary not just for security against abuse of public office and public officials and elected officers in several levels of government but also, of course, to protect individuals in the community.

Probably the most extraordinary statement of all throughout the debate of refusing the importance of having an ICAC and leaving us exposed to potential corruption over a number of years was the very audacious statement by the then attorney-general on 19 June 2008, when he spoke in this chamber about all the reasons why there should not be an independent commission against corruption. He said—

Mr Goldsworthy: Who was it then?

Ms CHAPMAN: The then attorney-general, the Hon. Michael Atkinson, member for Croydon. He said this:

ICACs are a gift to malicious slanderers who want nothing more than a headline or a TV promo. They are also a gift to those who want to exert inappropriate pressure on public officials. These people say, 'Give me what my client wants or I'll call in ICAC,' or 'Your decision will be ICACable.' We can do better by giving one or more of the existing agencies authority to compel people to attend hearings and answer questions on oath; and there is scope to improve the independence of the Police Complaints Authority. I am working on it, but it will never arouse the lust that an ICAC will among journalists, oppositions and the vexatious.

That is the great contribution from the former attorney-general. He probably still takes the same view today. I notice that at this stage he has not made a contribution to this debate; I certainly hope he does, to endorse the government's position about how there is a wonderful turnaround, how he has seen the light and how he has had a light bulb moment and is now going to support this magnificent initiative of his successor.

However, let us be under no illusion. The current Attorney took a long time, in fact years, to come across as well. What he said back on 19 June 2008 in this chamber on the independent commission against corruption motion is quite extraordinary. He said:

I was looking forward to hearing the member for Heysen put together an argument about why the state needed an ICAC, because I am interested in hearing a well argued, well reasoned, well rounded proposition to explain why someone would want to go down this path. Unfortunately, all we got was a series of rather peculiar complaints about individuals, some of which I think are probably unfair. I do not know very much about Mr Moore's position but I have to say on the record that, if Mr MacPherson wants to be Ombudsman for the term of his natural life, I will be happy with that, because he is doing a good job. Where is the issue there? He is doing an excellent job. Is there some suggestion that Mr MacPherson has done the wrong thing in order to secure the position of Acting Ombudsman? I do not think so. It is bizarre.

What worries me about the proposition put forward by the member for Heysen is this. It is an example of me-tooism: 'People in New South Wales have got one. I want one. People in Victoria have got one and people in Western Australia have got one. I want one too. Why can't I have one? They've got one.' No question about whether it is useful, whether it achieves anything or whether it is a despotic outfit completely out of control, doing more harm than good: 'They've got one. I want one.' I think psychologists talk about some sort of envy in children. I think this is an ICAC envy, instead of something that young girls are supposed to experience.

He went on and on and on. The Attorney-General has obviously had a very significant bypass on his approach to ICACs.

He went on to make, I think, quite insulting comment about how the member for Heysen had to go and watch all The X Files, about how she could enlighten herself about conspiracy theories and that she should go off and buy the full series from Coles or Woolworths to give herself some understanding about why it was completely unnecessary to have an ICAC.

It was rude, it was offensive, it was insulting. It was certainly gratuitous, but isn't it amazing? It is that sweetest little pearl that we have when he comes back into the chamber four years later to say, 'I was wrong. I was wrong. I was wrong. We don't need a national ICAC.' When did he ever come back to this parliament and tell us that he had been off fighting the cause for a national ICAC? When did he go off to those meetings of attorneys-general and come back and say, 'I've been fighting the good fight for a national ICAC?'

I think I asked the premier of the day several times when that had been put on his agenda, and it seemed to have slipped off the agenda. I do not think it was ever discussed but, nevertheless, a national ICAC came and went. That was a complete disaster, so I say to the house that I am extremely pleased that the Attorney-General has decided that it is important to go down this path. Finally, even though he is going to starve it of money, it is going to come in. Kicking and screaming, it will be brought into this house without adequate funding, no doubt. That will be a remediable matter that of course the opposition can look at if we have the privilege of government in 2014, because it must be done.

I think there are some other aspects that need some consideration and some amendments have been foreshadowed to cover those. I will not traverse them, but there is one thing I also note. This ICAC is for public officials only. I think there are some aspects in relation to local government that leave a lot to be desired in this bill. Of course, I have been the local member and had to sit by patiently and watch over $1.5 million of taxpayers' money being spent on the Burnside inquiry which, if we had had an ICAC, we might have actually been able to avoid.

Secondly, as a ratepayer in that area, there were hundreds of thousands in addition to that that we have paid in Burnside council rates to cover their legal costs. That is a shameful episode in the history of any kind of proper inquiry into some kind of misconduct at the local government level. That needs to be remedied. I am not convinced that the code of conduct process that we are being asked to consider before we have even seen the code of conduct is entirely proper, but that will be teased out in due course.

The final aspect on which I make a point is the narrowness in relation to public office. In other countries, consideration has been given to corruption in the private sector. That is a matter which I think needs to be at least inquired into at another time. Certainly the opposition is not foreshadowing any amendment, and it is not something that has been traversed at any significant stakeholder level—but the level of corruption in the private sector, including in the finance and banking industries, and in sport. It would not be a great surprise to people to hear that wherever there is gambling in sport there can be corruption, and that is an aspect that needs to be looked at in due course.

Let us get this ICAC going. I look forward to seeing it launched. A number of eminent people have provided advice on this matter during its gestation, long that it has been, and they should also be acknowledge—-and I am sure the Attorney will do that in his summing up—and they include former judge, His Honour Kevin Duggan, who has other roles now since his retirement from the Supreme Court. I mention him because, clearly, the Attorney-General has a lot of appointments to make before 30 June, and the ICAC commissioner in due course is one that will also need to be considered. I will say that retired judiciary, people like the Hon. Kevin Duggan, clearly are part of an outstanding group of people in our own state who can take up that position.

I look forward to the passage of this bill with some helpful amendments, which I am sure will be presented here and for which we ask the government's favourable consideration, together with some more to come in another place, and we will see how it traverses. We look forward to its swift passage to ensure we get it going. Long live the ICAC.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (17:32): I am attempting to get into the spirit of things because we are trying to move this thing through as reasonably quickly as possible, and I am grateful to the Leader of the Opposition for her assistance and cooperation in relation to that matter, and I think all members will be pleased that this matter will be finally resolved tomorrow, as will the other bill, which is excellent.

I wanted to say a couple of things very briefly. First, picking up on the honourable member for Bragg's remarks, as usual she has flagellated me with criticism and, when I collect my thoughts afterwards, I will think of a witty retort, but I cannot think of one presently—I'm too upset! The one thing she did say which I thought was very useful and very helpful and dovetails into something I anticipate is coming shortly was the question about whether or not this bill went far enough in that she thought the definition of 'public office' and 'public officer' was perhaps too restrictive. That is interesting, because what I believe will probably be the issue that occupies most of our time in committee here will not be opposition amendments, of which I have notice of a few. I will be disappointed if there are to be others of which we have no notice yet. But I received some this morning, and the Leader of the Opposition showed me one a moment ago, which I am aware of.

What troubles me is not so much the late arrival of those amendments, because I foreshadow that we will be attempting to resolve whatever we can in relation to those between the houses, and I will not waste this chamber's time arguing the toss on them, but I have some general views about them, which I will express in due course, otherwise I am not in position to make a call one way or the other about those, so I just let everyone know that we will not be wasting their time on that.

As to the business of public and private hearings, the dichotomy between those things: I think we've got it right—there should be private hearings, and I applaud the Leader of the Opposition's consistent concern for the possible destruction of the reputation of individuals for no good reason, either because there is frivolous or stupid complaint or they might even have simply been called as a witness, and the mere fact of their being there as a witness is misinterpreted by some malicious individual to be a warrant for besmirching their name.

The other point I wanted to make is that much of the concerns that have been raised by the leader and the member for Bragg were anticipated in the sense that, number one, we have said that the commissioner will make an annual report to the parliament in which we would expect the commissioner annually to say, 'Look, I am finding I have this problem' or 'that problem', or, 'The legislation is working' or 'not working. Parliament, can you please fix it up?'

That is supplemented by a five-year mandatory review of the legislation, so I think we can be reasonably comfortable. We do not have to anticipate every conceivable possible thing that is going to happen over the next 10 or 20 years with this, because every year it will be recalibrated by the reports brought to the parliament by the commissioner. In five years, whether or not we like it, whether or not any of us are here, this parliament will review this legislation. I do not think there needs to be a mad scramble to get it absolutely finetuned to whatever degree, particularly since the commissioner is really going to be in the best position to make those decisions, not us.

The next point, very briefly, is that the Leader of the Opposition mentioned things about the definition of corruption. I think there is a danger here of us getting into a semantic argument. Corruption is what you call it. What we have called it here is a criminal act, something known to the criminal law which is currently capable of being prosecuted. We have called things less than that—that is, not criminal acts but still misbehaviour—either maladministration as defined or misconduct as defined. The legislation as it stands enables the ICAC commissioner to step into the shoes of the people who investigate those things and take them over, if the commissioner thinks it is appropriate to do so.

I anticipate one of the amendments the opposition will be moving sort of invites the commissioner to bring their coercive powers with them. That is a debate we will have to have but, I must say, I do not think whether somebody is being rude to somebody at work warrants them being taken into a room and examined under coercive powers or having their phone tapped. I just cannot imagine how that is warranted, but we will talk about that. Parliamentary privilege was raised. There is no intention for us to be in any way destroying parliamentary privilege or affecting it in any way.

The last point I wanted to make is that I anticipate that we are going to have our time unnecessarily occupied during the committee stage by a number of interventions from the Local Government Association, who, through their chief executive, has made the most outrageous, misleading and improper statements in media releases, which I do not blame the Leader of the Opposition for because, quite reasonably, she has not had the time to look into the veracity of these things. The fact that we are going to be taken through this, courtesy of the CE of the Local Government Association, is extremely unfortunate—not only because the Local Government Association does not deserve to be put in the position of having to listen to what I am going to be saying about the CE and the way the CE has conducted herself but also the sheer misleading nature of it all. I am not going to burden people with all of that now.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

Mrs REDMOND: This clause deals with corruption, misconduct and maladministration. It appears that this clause would enable allegations previously dealt with in the ministerial investigation into Burnside council to be put to the Ombudsman or the Public Integrity Commissioner. Can it be confirmed that that will be the case? Also, can I extend that question slightly; that is, is there to be any back date?

My attitude has been that there is no date beyond which the commission cannot look back in time. Normally, of course, we would not be passing retrospective legislation. So, the broader question for the Attorney is: does the bill allow, from the day the office opens, for a complaint to be made, or a matter to be raised, which can look back into events which have already transpired?

In reminding the Attorney about sexual offences, and the fact that that back date had to be removed, my attitude has always been that we would not be putting an impasse on any investigation. But that said, obviously, like all investigations, it becomes more difficult to gather evidence over a period of time. The first part of the question is: does that mean that Burnside, Charles Sturt and so on can be reopened?

The Hon. J.R. RAU: It was the explicit intention of this legislation to enable something like Burnside to have been addressed quickly and promptly by reason of an investigation by the Ombudsman, rather than having to wait for the fairly cumbersome section 272 of the Local Government Act procedure. So, the answer to your question, Leader of the Opposition, is that, yes, that is explicitly the intention of this legislation. That is the way in which it was designed, and that is what it is intended to do. It is intended to be able to attack problems before they become huge. Rather than waiting until they become of such a magnitude that you require the enormous effort involved in a 272 investigation. That is point 1.

Point 2: retrospective. In particular, again, we are talking here about the criminal law inasmuch as we are talking about the activity of the ICAC commissioner. As the leader would be aware, some criminal offences are statute barred, particularly summary offences. There would be a number of offences which, by reason of the effluxion of time, would no longer be capable of being prosecuted. It is not our intention to disturb that passage of time limit in any way by this legislation.

Likewise, there are many other offences for which there is no statutory time of expiry, and those offences would continue to be able to be investigated. Inasmuch as we are talking about things which are not criminal offences, unless we are talking about acts which are basically civil, or acts such as torts or contractual enforcements, there really is not a statute of limitations in that formal sense. So, from a purely legal sense, are they being blocked? No. But from a purely practical sense, given the magnitude of what they might be and how long ago they might have occurred, one wonders whether they would be bothered with them.

Clause passed.

Clause 6 passed.

Clause 7.

Mrs REDMOND: In the very first provision of clause 7, the appointment of commissioner is for seven years. Can the Attorney advise whether that is the standard term of appointment of commissioners around the country for the other ICACs or, if not, how did we arrive at the seven years?

The Hon. J.R. RAU: I am not sure, to be perfectly frank with the leader, whether that is a provision commonly held elsewhere. That was derived basically from looking at other parliamentary or public officers like, for example, the Director of Public Prosecutions or the Ombudsman. We thought that this office was in some respects analogous to that, and that was the reason for the selection of that term.

Clause passed.

Clauses 8 to 21 passed.

Clause 22.

Mrs REDMOND: This clause deals with action that may be taken. If a matter is assessed as raising a potential issue of corruption in public administration, the matter can be investigated by the commissioner or referred to the South Australia Police and so on. Subclause (2) goes on to say, 'If a matter is assessed as raising a potential issue of misconduct or maladministration'—so, the first part is corruption and the second part is misconduct and maladministration. Could this provision result in duplicated inquiries, that is, in an agency looking into a matter at the same time, for instance, the Office of Public Integrity and/or the Ombudsman?

The Hon. J.R. RAU: That is not what is intended. I do not think the drafting would permit what the leader is concerned about to occur. We are differentiating there between the criminal level of things and then the subcriminal level. In relation to the criminal level, as the leader said, it goes off to the police or is investigated by the commissioner, as the commissioner may determine. In relation to subcriminal matters, the commissioner, for all the reasons the leader referred to in her second reading contribution, might nevertheless be interested in a subcriminal investigation occurring, say, in the Ombudsman's office or somewhere else. What subclause (2) is intended to achieve is for the commissioner in effect to become involved, or in some circumstances to in effect take that over, but not for there to be parallel investigations occurring.

Clause passed.

Clauses 23 to 31 passed.

Clause 32.

Mrs REDMOND: This clause deals with limiting action by other agencies and authorities. Basically, the commissioner can require a South Australian law enforcement agency or other public authority to refrain from taking action in respect of a particular matter being investigated by the commissioner under this act, and can set out the period for which that is to apply, and so on. It is a double-barrelled question: firstly, would the clause cause an agency to have to cease to undertake an act, such as a contracted service, whilst an investigation is undertaken? If the answer to that is yes, what are the cost implications likely to be from this clause and how will they be overcome, if there is this requirement that people stop doing something which they may have contracted to undertake?

The Hon. J.R. RAU: It was intended that the operation of this clause would apply in a circumstance where, let us say, for example, the Ombudsman is investigating something, or has been given notice to investigate something, and the commission forms the view that, if the Ombudsman goes in and starts doing what the Ombudsman is likely to do, it will alarm a person who is a suspect in a serious investigation. The commissioner would say to the Ombudsman, 'Look, you back off for a bit. Let me do what I have to do. Let me get my phone taps organised and let me do whatever else I want to do. You just keep out of that space while I do what I have to do.' It might even be SAPOL they are talking to, it could be anybody. That is the nature of it because it is referring to those sort of corruption investigations and it is an attempt to stop agencies from tripping over each other.

Clause passed.

Clauses 33 and 34 passed.

Clause 35.

Mrs REDMOND: There is both an amendment and a question on clause 35 and I think it is probably easiest to deal with the question first and then I will move the amendment, if I may. This clause is one where another organisation is investigating a matter and the commissioner becomes involved in the investigation and, indeed, the amendment that I will move in a moment relates to that. The question is: if an agency is already undertaking an inquiry into a matter, does this clause require or enable the commissioner to stand in the shoes of the agency and take over the matter, including liaison with a client and determining remedies? I am asking that question on behalf of the LGA. My understanding is that, indeed, they do completely take over and have all the authorities and powers of the agency and, therefore, that is what would be intended; that is, they would take over liaison with clients and involve the remedies.

The Hon. J.R. RAU: The leader is absolutely correct. The effect of that section is, in effect, to put the commissioner literally in the skin of the agency that the commissioner has stepped into. In effect, the commissioner becomes the agency for the purposes of that investigation. They bring nothing with them and they lose nothing that agency would have.

Mrs REDMOND: I move:

Page 27, after line 34 [clause 35(5)]—After paragraph (e) insert:

(ea) the Commissioner may, if of the opinion that the conduct the subject of the matter may develop into corruption in public administration, conduct an examination or require a person to produce a document or thing as if the Commissioner were conducting an investigation into corruption in public administration; and

As I say that is the clause that enables the commissioner to take over. If the Ombudsman is investigating a matter, this is the clause that enables the ICAC commissioner to come in and take over that investigation, and he takes it over with the powers of the organisation rather than bringing in his own powers. The amendment is meant to address that very issue because it seems to us that there may well be occasions when having done that the commissioner thinks that it would be appropriate to apply the powers of the commission.

I hope that the Attorney will carefully consider this between the houses. I do not intend to pursue the matter tonight and, indeed, I expect that we will lose the vote and you will call it in the Attorney's favour, and I am not going to be calling a division on it, but I do invite the Attorney to consider it between the houses. What we are proposing is that in subclause (5), just after paragraph (e) we insert new paragraph (ea), and that is in very restricted circumstances to give the commissioner a slightly extended power. That is to say that we insert the words 'the Commissioner may, if of the opinion that the conduct the subject of the matter may develop into corruption in public administration'—if he thinks it is going to develop into corruption in public administration—then he can conduct an examination or require a person to produce a document or thing as if the commissioner were doing it under his ordinary powers basically.

The Hon. J.R. RAU: I thank the leader for her contribution on that. I will give that due consideration between the houses. As I have literally only seen that a few minutes ago, I am not in a position to agree to it. I do understand what she is saying. I do understand her point. As a matter of formality, I oppose it, but I indicate that I am happy to talk to the leader about that between houses.

Amendment negatived; clause passed.

Clause 36.

Mrs REDMOND: This clause deals with referral to a public authority. If there is an investigation already being undertaken by the minister under the Local Government Act into a matter that has come to the attention of the Public Integrity Commissioner, what is the approach to reconciling potentially two investigations into the same matter?

The Hon. J.R. RAU: I still have not had my chance to talk about the LGA, have I?

Mrs Redmond interjecting:

The Hon. J.R. RAU: I hardly began.

The CHAIR: We can extend beyond 6 o'clock should you wish to do that.

The Hon. J.R. RAU: No; I promised that I would not do that, so I am afraid you will have to come back tomorrow to hear more about the LGA.

Mrs Redmond interjecting:

The Hon. J.R. RAU: You can hear it tomorrow; I will not go into it now. In answer to your question, again, courtesy of the LGA (I hope everyone is taking notice of that, which incidentally has been consulted on all this stuff; anyway, we will hear more about that tomorrow, I just want to whet everyone's appetite for that), in relation to the situation on public authorities, and so forth, the intention is that the commissioner does not trip over other people. Unless the commissioner is investigating a corruption allegation, in which case the commissioner may be in the same space as the Ombudsman and would probably have told the Ombudsman, 'Hey, back off, I'm in this space,' then either the Ombudsman is doing it or the commissioner has slipped into the Ombudsman's skin and the commissioner is doing it pretending to be the Ombudsman, if that makes sense. The chance of there being people tripping over each other in that context, I think, with respect, is virtually zero.

Clause passed.

Clause 37 passed.

Clause 38.

Mrs REDMOND: What assurances can the minister give that the rights and obligations of a council to adopt policies, procedures and practices to service and govern its communities is not unduly influenced by the work of the ICAC?

The Hon. J.R. RAU: I am fascinated by the words 'unduly influenced'. What does the LGA think is undue influence from the ICAC commissioner? That is a tantalising thought! If the ICAC commissioner, presumably, does not like what the councils are doing, or does not like what the schedules are, they will report to parliament and the parliament will decide what is going on. It is a matter for the parliament. I think it is outrageous that the LGA should be suggesting that the commissioner should butt out of council business because it is none of the commissioner's business—extraordinary.

Clause passed.

Clauses 39 to 41 passed.

Clause 42.

Mrs REDMOND: Again, a question on behalf of the LGA: is it reasonable for public officers to be seeking legal advice on the requirements and directions that may be given by the commissioner, the deputy commissioner, an examiner or investigator, and, if so, who will pay for the costs of those public officers seeking that legal advice?

The Hon. J.R. RAU: I thank you for that question, but I think that my answer may take longer than 30 seconds.

Progress reported; committee to sit again.


At 18:00 the house adjourned until Wednesday 30 May 2012 at 11:00.


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