HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-10-18 Daily Xml
Contents
Pdf Xml

INDEPENDENT COMMISSIONER AGAINST CORRUPTION BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

The Hon. J.R. RAU: For the benefit of the house, I am suggesting that we perhaps approach this one in the same way as we have the others that we have been dealing with; that is, if there can be some sort of agreement that people can initially say what they want to say but then will not sort of over egg the pudding in terms of going through the provisions one by one, and we can do that reasonably promptly, that is fine.

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

Mrs REDMOND: Mr Acting Chairman, I am not sure exactly what 'that' is.

The ACTING CHAIR (Hon. M.J. Wright): We are just going to give people from both sides the opportunity to speak generally about the amendments in totality and then we will come back and go through them individually or en bloc, as is the preference at that point.

The Hon. J.R. RAU: But not so as to then have a repetition of the general remarks that were made in the first place. If the leader is not happy with that, I am quite happy to do them one by one—no problem. I am happy to do them one by one—entirely happy. If the indication is that we do that, we will start off with amendment No. 1.

The ACTING CHAIR (Hon. M.J. Wright): Does the leader have a preference?

Mrs REDMOND: Yes, I would rather do them one by one, thank you, Mr Acting Chairman, because I do not know what the attack or the approach is. We have not had any indication. I have only just got a copy of the amendments.

The ACTING CHAIR (Hon. M.J. Wright): Okay, we can certainly comply with your wishes. The minister can give us an indication about the first amendment.

Amendment No. 1:

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

That the Legislative Council's amendment No. 1 be agreed to.

Motion carried.

Amendment No. 2:

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

That the Legislative Council's amendment No. 2 be agreed to.

Motion carried.

Amendment No. 3:

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

That the Legislative Council's Amendment No. 3 be disagreed to.

Mrs REDMOND: This is an issue that we have moved quite deliberately because, although we have had a verbal assurance from the Attorney in relation to negotiations that have gone on for some time, the provision, as you can see, says:

Nothing in this act affects the privileges, immunities or powers of the Legislative Council or the House of Assembly or their committees or members.

It is our view, very clearly, that it has never been the intention of our side of parliament and, indeed, we understand verbally from the Attorney, their side of parliament, to impact at all on the privileges that normally pertain within this chamber and the other place. We are most concerned to ensure, especially since there was some wording which was a little less clear earlier on, that the Independent Commission Against Corruption does not in any way impinge upon the rights and immunities that every member of this place and the Legislative Council already has.

I can count so I know that there is no point in me going on at any length in terms of this, but we do believe that it is important that parliamentary privilege be clearly unaffected by the introduction of this legislation. These are rights and immunities which we have had in this chamber since its inception and, indeed, through the Westminster system since before the inception of this particular chamber, and it is not something to be lightly thrown away. We are concerned that without this section, the potential exists for an Independent Commission Against Corruption to, indeed, impinge in some way against the immunity enjoyed by the privileges of this house and the other place, so we support the amendment.

The Hon. J.R. RAU: The Leader of the Opposition is absolutely correct. There is no difference of opinion in terms of where we want to land. However, because of the way in which amendments have been moved in the upper house, another matter of significance to us is a question of the further publication of matters which might be dealt with in Hansard without in any way impacting on the parliamentary privileges of an individual member. It is nothing to do with their privilege at all; it is to do with what a third party does with material which is sourced in privileged material, if that makes sense. As far as I am concerned, that is still a live issue between us and, in order to maintain that, I need to formally oppose this, but I make it clear that in doing so I am not suggesting that I do not agree with the sentiment contained in that proposition.

The committee divided on the motion:

AYES (22)
Atkinson, M.J. Bedford, F.E. Bettison. Z.L.
Bignell, L.W. Breuer, L.R. Caica, P.
Close, S.E. Conlon, P.F. Fox, C.C.
Geraghty, R.K. Kenyon, T.R. Key, S.W.
Koutsantonis, A. Odenwalder, L.K. Piccolo, T.
Portolesi, G. Rankine, J.M. Rau, J.R. (teller)
Sibbons, A.J. Snelling, J.J. Vlahos, L.A.
Weatherill, J.W.
NOES (16)
Chapman, V.A. Gardner, J.A.W. Goldsworthy, M.R.
Griffiths, S.P. Hamilton-Smith, M.L.J. Marshall, S.S.
McFetridge, D. Pederick, A.S. Pisoni, D.G.
Redmond, I.M. (teller) Sanderson, R. Treloar, P.A.
van Holst Pellekaan, D.C. Venning, I.H. Whetstone, T.J.
Williams, M.R.
PAIRS (4)
O'Brien, M.F. Pengilly, M.
Thompson, M.G. Evans, I.F.

Majority of 6 for the ayes.

Motion thus carried.

Amendment No. 4:

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

That the Legislative Council's amendment No. 4 be agreed to.

Motion carried.

Amendment No. 5:

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

That the Legislative Council's amendment No. 5 be agreed to.

Motion carried.

Amendment No. 6:

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

That the Legislative Council's amendment No. 6 be disagreed to.

This is one of the significant issues which still exists in relation to this bill. There is a range of issues, as we will see as the afternoon turns into the evening, but this one is a very significant issue. It relates to the question of the method of appointment for the commissioner. The original form of the bill required the commissioner to be appointed in the same way as one would expect, which is by the Governor in Council.

The Hon. Ann Bressington in the other place moved an amendment which, for whatever reason, is now being supported by the opposition which adds in the words 'on a recommendation made by resolution of both houses of parliament'. I want to make a few points about this because they are important, I think. The first point is that this would mean that the means by which the commissioner was appointed would be different from the method which we are quite happy to employ for Supreme Court judges, District Court judges, magistrates, the Director of Public Prosecutions, the head of the police force (the Commissioner of Police), and pretty well everyone else with the exception that a slightly less oppressive arrangement exists for two people who are basically functionaries of the parliament—the Ombudsman and the Electoral Commissioner.

The situation in relation to the Ombudsman and the Electoral Commissioner is that they are, as I said, essentially functionaries. They are people who are brought to the attention of the parliament—and in fact the parliament is the appointor really of these people—through the Statutory Officers Committee. The Statutory Officers Committee, which I have been a part of, meets when it becomes aware that there is a vacancy for one of those positions.

The Statutory Officers Committee then goes off to, in effect, head-hunters and says, 'Rightio, here is what we want,' and then bureaucrats or whoever prepare the job statement. That is taken off to a head-hunting outfit who then go off and advertise around the place to see if they can find somebody who looks like a promising individual to fill the job description. They do this by receiving applications from lots of people, or hopefully lots of people; they process the applications; they consider them; they order them; they vet them; and then they bring a recommendation back to the Statutory Officers Committee. The Statutory Officers Committee may call—and on occasions, I think, has called—the applicants before the Statutory Officers Committee in order to talk to them.

In my experience that has never been a particularly arduous exercise. I do not know how it has been in the past, but it is entirely possible that members of that committee can vet an individual candidate—ask the candidate questions and so forth. At the end of that process the Statutory Officers Committee makes a recommendation and that recommendation, as I understand it, is then adopted. The exact process by which it is adopted I am not sure is identical to the one suggested here, but it is significant to see that the amendment moved by the Hon. Ann Bressington and supported by the opposition presently requires that there be a resolution of both houses of parliament. That is important: 'resolution of both houses of parliament'.

Let us park that bit of information to one side and let us think about what sort of person we aspire to attract to occupy this important role. From very early on I have made no secret of the fact that I was looking for a person who was of the standing of a judicial officer, somebody who could reasonably aspire to be a judicial officer or somebody who is a retired judicial officer—somebody who understood the difference between evidence and intelligence, somebody who understood a prosecutorial discretion, somebody who understood the way that rules surrounding the proper use of power were to be applied and understood. After all, this person is going to be in a position of considerable significance and they need to be a person of not only high standing but also high capacity.

It is said and argued, I think, by those who propose this provision that it enhances the independence of the role. I absolutely dispute that. I also absolutely dispute the idea that there is any consistency between the successful passage of this amendment and our ability to attract the absolute best potential candidate to occupy this role, and I will give you some examples to explain why. The involvement of the parliament in a direct way, as this envisages, in the appointment of the commissioner I believe could seriously compromise his or her independence, and I will explain to you why.

If there is going to be a resolution of the parliament and each member of the parliament therefore is able to speak and vote on that resolution, each member of the parliament may think it is a reasonable thing for them, having been given public notice of the fact that so-and-so is the candidate—this is very important, because the government has already identified the individual who the government wants to appoint and that individual is just hanging out there to dry until the parliament has dealt with them. They are suspended in limbo until the parliament has dealt with them.

Each individual member of parliament on that resolution would have the entitlement to speak. Members of parliament might think, 'Before I make up my mind about whether I like this person or that person, I am going to approach them and I am going to say, "How would you handle this sort of situation? How would you handle that sort of situation?"'

The Hon. M.J. Atkinson: Or call them to the bar.

The Hon. J.R. RAU: Indeed. There could even be a select committee and they could be called to give evidence. As the member for Croydon quite rightly says, they could be called to the bar here. Even if they were not called to give evidence before the parliament in some form they could be quizzed by members of parliament.

What an appalling position for somebody who we want to be an independent commissioner to begin from that, in order to make the transition from the nominated person by the government to the person who is appointed, they may be subjected to lobbying and questioning by individual members of parliament about how they may conduct themselves, fully knowing that, if they refuse to answer the questions, that may be interpreted as some form of misbehaviour or arrogance on their part and, if they do answer the questions, they may be setting themselves up and boxing themselves into corners and probably compromising themselves inevitably.

So, that process goes on. Meanwhile, this person is hanging out there in limbo land. Then we have the actual substantive motion come before the parliament. It may well be said, 'Well, the government and the opposition might have agreed.' Well, so what? Parliament is not always full of government and opposition. This one is not; neither chamber is. So, we then have the potential of a debate in the parliament, or at least people speaking to the resolutions.

What if one member of parliament decides that, as a matter of interest, they are going to peer into the past history of this person and ascertain who they represented 30 years ago when they were at the bar? They might make a speech in this place, saying, 'Do you realise that candidate X, 20 or 30 years ago, was defence counsel to Mr Jones? Mr Jones was a terrible man, and he got off—and I still think that Mr Jones is a terrible man, and anybody who defends Mr Jones is no friend of mine.' Is that a reasonable sort of thing? I do not think so. This is even worse than the spectacle of people such as Clarence Thomas being dragged through the mud in Washington, where at least their—

The Hon. M.J. Atkinson: Bork?

The Hon. J.R. RAU: Or Bork; exactly—Robert Bork. But at least their political culture is different, and this is not anathema to their political culture. Then let us take it the next step. Let us imagine this person who has been hanging out to dry gets past the point where they have not been either cuddled up to by a member of parliament and asked to make commitments or derided or unfairly treated in public, under privilege, and we have a vote and the government of the day prevails in the House of Assembly but the government of the day does not prevail in the Legislative Council.

So, here we have this person suspended out there in limbo, with one house saying, 'You're okay,' and another house saying, 'You're not okay.' And just to make it interesting, let us imagine this person is actually a sitting judge, who has said, 'I am prepared to do the job.' So, they are sitting out there. What is the net result at the end of this?

Well, the net result at the end of this is that to that person's peers, 'You don't really want to be a judge do you? Otherwise you wouldn't have applied for that job. You've made your position here pretty clear. Don't you think it's about time you left? Also, half the parliament doesn't think you're good enough to be ICAC commissioner. Don't you think you should ask yourself a question about whether you are good enough to be a judge?' It would be even worse if neither chamber supported the application. I come back to the point about the calibre of the person I am trying to see attracted to this position. It is not—

Mrs Redmond: Is the qualification ALP membership?

The Hon. M.J. Atkinson: What a sleaze.

The Hon. J.R. RAU: That is actually one of the most puerile comments I have ever heard.

Mr GOLDSWORTHY: On a point of order: Mr Acting Chair, you audibly heard what the member for Croydon referred to the leader as. That is unparliamentary language, and I ask that you request that the member for Croydon withdraw that comment and apologise.

The ACTING CHAIR (Hon. M.J. Wright): There is no point of the order.

Members interjecting:

Mrs Redmond: Misogyny?

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

The Hon. J.R. RAU: I am not going to dignify that interjection with a response, but it is actually quite sad that that is the sort of level that we are operating at. I am actually trying—

Mrs Redmond interjecting:

The Hon. J.R. RAU: Oh, for Godsakes!

The ACTING CHAIR (Hon. M.J. Wright): Order!

The Hon. J.R. RAU: I am trying to explain something about what is wrong with this process so that it is clear that there is a problem with this. I am not at the point now where I am actually canvassing what, no doubt, myriad alternatives to this there might be. I am trying to explain why this alternative is not acceptable. That is what I am trying to do.

In short, we are going to have a person who is a person of considerable standing in the community, one would expect, who has to have themselves identified as the nominee of the government but then left suspended in limbo whilst whatever process each chamber of the parliament decides to undertake is undertaken, during which time they are totally vulnerable to pot shots by anyone about anything under privilege, and they could wind up in the position where neither chamber supports them—or one does and one does not—at the end of which they have then stuck their neck out so far and nothing has happened.

This is a completely unique proposal in terms of the way in which these sorts of appointments should be made, and if the opposition is serious about this sort of thing, what about all the other appointments—heads of department, chief executives, police commissioners? I mean, where does this end? Where does this requirement for this sort of public limelight-type appointment end? Where does it end, because there is no logical reason why this person should be singled out for this extraordinary process?

I know that the opposition in order to cobble together agreements in another place from time to time supports things, and I guess that that is in the nature of politics, and that is fair enough, but I would be extremely concerned if a matter as serious as this was being pursued for such a trivial reason. I am sure that demonstrations of good faith to Independent members of the other place can be made, which are very persuasive and very effective, without doing serious damage to good public policy, which is what we are looking at here.

My position on this thing is that, for all the reasons I have just said and for no other reason, I oppose amendment No. 6. I have made it clear to the Leader of the Opposition for some time that that was my view about this, and I have at all times been available and open to discussion about rational alternatives. Obviously my preference would be that we just leave the bill as it was, but I have never, ever closed the door on a conversation about alternatives.

In fact, I indicated, I think, at one point to the Leader of the Opposition a couple of different matters—and I do not think it is appropriate to go into them in detail—that might be worthy of her consideration, although in me making those suggestions I made it clear that I was doing so simply as giving some indication. I was not in a position where I was authorised by anyone in particular to offer any ultimate resolution of the matter.

Now, nothing has been forthcoming in that space other than to see not so much the Leader of the Opposition but the Hon. Mr Wade constantly make statements about what his position was, and so forth. I would very much like us to resolve this question amicably and sensibly and in such a way as we deal with the mischief I have identified in my remarks. I am not being prescriptive about how that mischief is addressed: I am saying that that is a problem. I am open, and have been open, to discuss how that problem can be fixed, but this does not fix that problem, this creates that problem.

Mrs REDMOND: Clearly the opposition does not agree with the Attorney's view on this, and indeed very strongly support the Hon. Ann Bressington's amendment. The reasons are multiple: on a number of them we take a very different view from what the Attorney has said. I have had some discussions with the Attorney in the company of the shadow attorney, Stephen Wade, in an effort to resolve many of the issues on which we had a difference in relation to this bill, and on quite a number of issues we have come to some level of agreement.

However, on this issue we take the view that the term 'independent commission against corruption' should remember that independence is at the core of it. As the Attorney pointed out, the Ombudsman and the Electoral Commissioner are appointed with an approval process through the Statutory Officers Committee. One of the reasons I believe we cannot trust this government to make an appointment, which we believe will be a highly partisan appointment, takes me back to when I first became a shadow minister in this place. It was within the first month of my becoming a shadow minister back in 2004, and I was appointed as the shadow minister for family and communities and I was opposite the person who is now the Premier of this state. The former attorney was present at a meeting that occurred in July 2004, and at that meeting we were negotiating the terms of the inquiry into children in state care.

The Hon. M.J. Atkinson: I remember that; and I've got a story to tell about that too, so thank you for raising that.

The ACTING CHAIR (Hon. M.J. Wright): Order!

Mrs REDMOND: Present were the then leader of the opposition, Rob Kerin, the then shadow attorney-general, Robert Lawson, and myself as the three members on the opposition side. At the meeting were the then minister for families and communities, now Premier, Jay Weatherill and then attorney-general, Michael Atkinson—

The Hon. M.J. Atkinson: And you wanted to stop Ted Mullighan being appointed.

Mrs REDMOND: And a number of other people—

Mr Goldsworthy: We can go into that if you like.

The Hon. M.J. Atkinson: Yeah, let's go into that.

The ACTING CHAIR (Hon. M.J. Wright): Order! The leader will be heard in silence please.

Mrs REDMOND: That is exactly what I'm going into. I still have the record of the handwritten notes, many pages long, that I made about that meeting. On several occasions through that meeting Jay Weatherill said to the assembled group, 'We've got this person who we think will be a good appointment.' I make no bones about the fact that he actually turned out to be an excellent appointment—that is not the point of what I am talking about.

The point I am talking about is that at that meeting, on numerous occasions, as detailed in my notes of the meeting, Jay Weatherill, now the Premier of this state, said to us (and I am sure if pushed the Attorney would have to accede to this), 'But he won't take the appointment unless you agree. He doesn't want his name dragged through the mud; he values his integrity—'

The Hon. M.J. Atkinson: And you dragged his name through the mud.

The ACTING CHAIR (Hon. M.J. Wright): Order!

Mrs REDMOND: Integrity is an important thing. He said that he did not want his name dragged through the mud.

The Hon. M.J. Atkinson interjecting:

The ACTING CHAIR (Hon. M.J. Wright): Order!

Mrs REDMOND: Subsequently Commissioner Mullighan but then Supreme Court justice Mullighan—'will not accept the appointment'. He said several times: 'He will not accept the appointment unless you agree.' We said to the Attorney and the then minister, 'Well, we can't give you an answer to that; we have to take it back to the party room. Our view has always been that it should be someone from interstate because the allegations being made to us about these issues go so high into our society that we are concerned about having anyone from this state, but we will let you know.' We went back to the party room, where we raised it, and the party room stated the view that it really needed to be someone from interstate.

The Hon. M.J. Atkinson interjecting:

The ACTING CHAIR (Hon. M.J. Wright): Order! The minister was heard in silence. I would like the same opportunity to be given to the Leader of the Opposition.

Mrs REDMOND: I was with Robert Lawson when he rang the minister to explain that we did not agree and why. I say again, very clearly, on the record that Ted Mullighan turned out to be an excellent appointment. My argument is not at all about the appointment of Ted Mullighan. My argument is about the dishonesty of the Premier in saying to us, time and time again through that meeting, 'He won't accept the appointment unless you agree.'

When we did not agree, and we notified them later that morning, we came into the house that very day, and what was the ministerial statement that was made? The appointment of Ted Mullighan. When Rob Kerin, as the leader, stood up and said, 'But hang on a minute, you've told us this morning you wouldn't accept the appointment if we didn't agree and we have told you that we don't agree,' the now Premier was quite evasive. He did not want to answer that because he had been so fundamentally dishonest with us in that meeting.

The point of the story is that we have a Premier in this state who is a profoundly dishonest person, who sat there in that meeting and said to us not once, not twice, but several times, 'This man will not accept the appointment unless you agree to it—'

The Hon. M.J. ATKINSON: Point of order. Is it unparliamentary for the Leader of the Opposition to refer to a member of this chamber, indeed, the Premier, as a profoundly dishonest person?

The ACTING CHAIR (Hon. M.J. Wright): My advice is that it is unparliamentary and it should only be moved as a substantive motion.

Mrs REDMOND: In that case, I withdraw the reference to profound dishonesty and merely call him a whited sepulchre, which is not unparliamentary.

The Hon. M.J. ATKINSON: Point of order. A reference to Erskine May will show that 'whited sepulchre' is, by long usage, ruled as unparliamentary.

Mrs REDMOND: I want a ruling on that because I do not believe it is.

The ACTING CHAIR (Hon. M.J. Wright): My advice is that any allegation made about a member being dishonest is unparliamentary.

Mrs REDMOND: In that case, I will simply refer to the facts at hand. The facts are that the now Premier of this state said, not once, not twice, but again and again and again in the presence of at least three members of the opposition and the then attorney-general, that Ted Mullighan would not accept the appointment unless we agreed and, in fact, we did not agree and, subsequently, the consequence was that the then minister came into this house that very day, just a matter of hours after that meeting had occurred, and announced the appointment of Ted Mullighan and then evaded the question from the then leader of the opposition, Rob Kerin, about how it was that he could announce that when we had been told that morning that Ted Mullighan would not accept the appointment if we did not agree and he knew that we did not agree. That was the first example. That was the first day that I knew who not to trust in this chamber.

Thereafter, there have been other appointments which I think bring into question this government's capacity to make an unbiased and non-partisan appointment. I have already mentioned (in an interjection, I think) Jeremy Moore, a solicitor from out at Strathalbyn. There is nothing wrong with him as a solicitor but, suddenly, he jumped up into an appointment on a particular board as the president. What is more, he displaced the deputy president who had acted in the job for some eight months prior to Jeremy's appointment without her even having so much as the chance of an interview. As it happens, Jeremy Moore is a failed Labor candidate. What do you know? He is a failed Labor candidate who, suddenly, gets a position that costs this government something like $400,000—or should I say the taxpayers of this state.

Ms Sanderson interjecting:

Mrs REDMOND: Robyn McLeod, strangely, another failed Labor candidate, comes over to South Australia as our new water commissioner. We all know what brilliant qualifications she has. Talking about qualifications for the job, what about Laura Lee? Admittedly, she did not actually get to take up the appointment, but when you think about some of the appointments that they have made, you wonder why this government would expect us to accept that what they are going to do is make an appointment of the best qualified person to take on this role.

This role is fundamentally important to the future of South Australia. This role is something which we care passionately about, and we do not want to see another Labor flunky appointed. That is our great fear, and that is why we take the view that—and I was on the Statutory Officers Committee when we appointed the new Ombudsman. The Ombudsman in someone who is meant to be independent, and I think does a pretty good job as an independent officer.

We want to make sure that whoever is appointed to this position is indeed an independent commissioner against corruption. We are not asking to be involved in the interview or selection process; we are not asking for any of that. All we are saying is, once that selection has been made, let us get it given the nod by both houses of parliament, because it could be that the person, for some reason, is not appropriate.

It might be someone who, for instance, has provided free legal advice to a former attorney-general who gets an appointment. There could be all sorts of reasons for appointing someone to a position like this that we would—

The Hon. M.J. Atkinson: Get in the gutter; get right in the gutter.

The ACTING CHAIR (Hon. M.J. Wright): Order!

Mrs REDMOND: We would question quite a number of appointments that could be made. All we are saying is this is an appointment that is so important that it should be made by selection of the appropriate person, which obviously will be left up to the government of the day whenever the appointment comes up, but vetted by the parliament just by giving it the approval of both houses. For those reasons, we absolutely support the proposition put in the amendment and disagree with the government's disagreement with that motion.

The Hon. M.J. ATKINSON: Mr Acting Chair, there comes a time in the life of a political party when they have been in opposition for so long that they have no memory of the art of governing or the exigencies of governing. They are as distant in spirit and mind from governing as the Romans of the 12th century were, living in the ruins of ancient Rome.

We think about political appointments over the years—when I say 'political appointments', appointments to judicial or quasi-judicial office of people who were not merely members or former members of political parties, but had been candidates for parliament or members of parliament. We now have it on good authority from the Leader of the Opposition that the appointment of Sir Garfield Barwick as chief justice of the High Court was crooked because he was a former Liberal attorney-general.

We now have it on the member for Heysen's authority that the appointment of Sir John Latham as chief justice of the High Court was crooked because he had been the leader of her political party not long before his appointment. We have it on the authority of the Leader of the Opposition that the appointment of Sir William Deane to the High Court was illicit because he had been a member of the Democratic Labor Party, or indeed may even have been a candidate.

Of course, moving to our own era, we think of the appointment by the then Liberal government of Robin Millhouse, a member of this house and a former Liberal attorney-general, as a Supreme Court judge in order to create a vacancy in the seat of Mitcham, which the Liberal Party hoped to win. But, of course, these things the Leader of the Opposition has no memory of.

In a way, it is with a mixture of horror and delight that I hear the Leader of the Opposition use the example of the meeting we had about whom to appoint as the commissioner to enquire into sexual abuse on, I think, originally, the APY lands and then extended to sexual abuse of wards of the state—it may have been the other way around, actually. The Leader of the Opposition's recollection of what took part in the large boardroom of my office is correct. It is quite correct that the then minister for families and communities told the opposition delegation, which included the member for Heysen and the shadow attorney-general (the Hon. R.D. Lawson), that Supreme Court Judge Ted Mullighan would much prefer it if he could be commissioned with the consent of the opposition.

Mrs Redmond: They were not the words.

The Hon. M.J. ATKINSON: Refresh my memory.

Mrs Redmond: The words were that he would not accept the appointment unless we agreed. He very specifically would not accept the appointment unless we agreed.

The Hon. M.J. ATKINSON: I will accept the Leader of the Opposition's account.

Mrs Redmond: I have re-read it several times.

The Hon. M.J. ATKINSON: You mean you have re-read your own notes?

Mrs Redmond: Yes.

The Hon. M.J. ATKINSON: You re-read your own file note; that is absolutely compelling. I wonder if in the notes the Leader of the Opposition has the principal reason that the Hon. R.D. Lawson gave for not agreeing to Ted Mullighan as the commissioner. Let me refresh her memory, because it has never left my memory from that day to this.

I asked the Hon. R.D. Lawson why Ted Mullighan should not be the commissioner for an inquiry into sexual abuse of wards of the state. The reply was, 'Well, we've had a discussion about this in the Liberal Party room and some members, not named, have made the point, Attorney, that Ted Mullighan once shared chambers with Roma Mitchell.' I probably looked puzzled because I could not see why sharing chambers with Roma Mitchell—as Ted Mullighan undoubtedly did—was a reason for his not being appointed.

I asked Robert Lawson, 'Why would that disqualify him?' He then said, 'Well, there's a view, you know—Roma Mitchell, you know what she was.' And it all became clear: you could not have someone who had shared chambers with Roma Mitchell be a commissioner for an inquiry into the sexual abuse of wards of the state because someone in the Liberal Party room had raised questions about Roma Mitchell's sexuality. That was the principal reason that the Liberal Party would not accept Ted Mullighan as the commissioner for that inquiry.

Mrs Redmond: I agree it was said, but it wasn't the principal reason.

The Hon. M.J. ATKINSON: Let it be known that the Leader of the Opposition has said that, yes, it was said. She has conceded that it was said.

Members interjecting:

The Hon. M.J. ATKINSON: Good. Let me assure the committee that it was the principal reason that the Liberal Party opposed Ted Mullighan's appointment. I am proud to say that the parliamentary Labor Party and the Labor government took the view that this was a wholly inadequate reason for vetoing Ted Mullighan and we went ahead and appointed him, and I am pleased to have done it.

Mrs Redmond: You just make things up.

The Hon. M.J. ATKINSON: No; you have just conceded that that was the reason.

Mrs Redmond: I said it was a reason that was mentioned at the meeting. It wasn't mentioned in the party room, and it wasn't the reason.

The Hon. M.J. ATKINSON: But it was a reason given by the Liberal Party representative at the meeting. I will leave it to readers of Hansard to determine whether the member for Heysen being a party to the reason and not standing up and dissociating herself from that reason affects her fitness for public office.

Mr Goldsworthy: Sit him down.

The Hon. M.J. ATKINSON: The member for Kavel says, 'Sit him down.' I am not to have my right to speak. The way we appoint Supreme Court judges is by the Governor on the advice of Executive Council. That is the conventional method of doing it. The position of the commissioner of the independent commission against corruption in my view would be appropriately appointed by the same method as Supreme Court judges and District Court judges are appointed.

Indeed, I think it could turn into an American Senate style circus if we go through a system of parliamentary ratification by both houses. I think people who would be eminently suited to fulfil the role of commissioner, and fulfil it fearlessly and with dignity and integrity, would be put off if they were to be dragged through a parliamentary ratification process.

The Hon. J.R. RAU: I have listened to what other speakers have said. I hope what I was saying was not too dog whistle for the Leader of the Opposition, but I will repeat it again. If you listen to what I was saying about what I consider to be the problem (and you assume just for the moment that I am bona fide in actually expressing that opinion, because I am), then the question is this.

Given that the problem that I have identified is the fact that the nominee is to be dangled out there in no-man's-land for a period of time and then potentially subjected to public excoriation in this place under privilege, then that is the problem, because I believe that will deter most rational people from being interested in the job.

Mrs Redmond: It doesn't deter rational people from becoming MPs. We still get enough of them.

The Hon. J.R. RAU: Yes, and look at—please do not invite me down that track. The point I want to make is that, if the opposition was interested in talking about a selection process which somehow vetted or in some way scrutinised candidates prior to their appointment, and I mean by that prior to their appointment being known of or speculated upon, much as happens with judges—I mean, you can go down Gouger Street at particular times and you will hear all sorts of theories—

The Hon. M.J. Atkinson: Including, 'Please pick me.'

The Hon. J.R. RAU: Indeed—and as my colleague, the member for Croydon will tell you, those theories are on some occasions somewhere near the mark and very often nowhere near the mark. That means that is there is a crisp moment in time when a person goes from not being the commissioner to the moment they do become the commissioner, just as there is a crisp moment in time when people go from not being a judge to being a judge, or at least being announced as a judge. By that stage, the announcement has occurred after Executive Council has made the decision and after the Governor has signed off on the decision.

I have said informally to the Leader of the Opposition, and I say it again now, if anyone wants to have a conversation about how we deal with the process in an upfront fashion, which does not involve people being dangled out there like a marionette for however long it takes for the parliament to get its act together, then I am open to have that conversation, but this particular thing would be rightly regarded as repugnant to any person whom one would hope to attract, and it might be grabbed with alacrity by people one would not want to attract.

Motion carried.

Amendment No. 7:

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

That the Legislative Council's amendment No. 7 be agreed to.

Motion carried.

Amendment No. 8:

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

That the Legislative Council's amendment No. 8 be agreed to.

Motion carried.

Amendments Nos. 9 to 23:

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

That the Legislative Council's amendments Nos 9 to 23 be agreed to.

Motion carried.

Amendment No. 24:

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

That the Legislative Council's amendment No. 24 be disagreed to.

Again, this was added in at the initiative of the Hon. Ann Bressington and supported, presumably for the reasons I expressed before, by the opposition. The situation, as far as I am concerned, is this: the inclusion of an offence of victimisation in the ICAC Bill before the commissioner's review of the whistleblower scheme, which is contemplated by the legislation, is not supported. Both the DPP and the police commissioner have expressed their reservations about the inclusion of an offence in this bill.

It is my position that the drafting of an offence for victimisation should occur, if at all, with the benefit of the commissioner's review of the whistleblowers legislative scheme. I am further advised that this amendment, in effect, attempts poorly to replicate offences that already exist. So, for those reasons, I move disagreement with this particular suggested amendment.

Mrs REDMOND: I am afraid I will have to go through in some little detail the issue here. We are talking about clause 55, which deals with victimisation. I do not think that there is any great distance between the two sides on the issue itself; that is, we want to prevent people being victimised because of their engagement in uncovering and working towards the disclosure and investigation and so on of corrupt conduct. I do not think there is any great gap between us there. What is sought to be included has several clauses to it. The clause begins by talking about:

A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make a complaint...

Let us make up a theoretical situation. You are the person who is at a management level and you might be stealing money from the Victims of Crime Fund—corrupt conduct—and someone lower down becomes aware of that and maybe makes an inquiry or starts things happening to investigate what might be happening and, as a result, you as the manager start to victimise that person. Usually, the victimisation will occur before it gets to that stage because it is intended to prevent someone from proceeding to bring these matters to the attention of the independent commission against corruption.

Subclause (1) simply says that a person who causes the detriment basically commits an act of victimisation. Subclause (2) provides:

(2) Causing detriment on the grounds that a person—

(a) has made a false allegation; or

(b) has not acted in good faith.

does not constitute an act of victimisation.

In other words, if that employee who goes along and makes a complaint about someone then says, 'Well, I'm suffering from victimisation,' and if it is subsequently found that that person who made the complaint is not acting in good faith, and has made a false accusation, they cannot complain that they have been victimised because it is not victimisation under this clause. Subclause (3) states that it can be dealt with as a tort or under the Equal Opportunity Act, and basically that is the same for all of those sorts of things. The Equal Opportunity Act is generally something where you can take your own civil action or go through the particular Equal Opportunity Commission. Subclause (4) states:

If a complaint alleging an act of victimisation has been lodged with the Commissioner for Equal Opportunity and the commissioner is of the opinion that the subject matter of the complaint has already been adequately dealt with by a competent authority—

Then they do not have to deal with it. What Ann Bressington is seeking to put in after that—

The Hon. M.J. Atkinson: The Hon. Ann Bressington.

Mrs REDMOND: Sorry, what the Hon. Ann Bressington is seeking to put in after that is the following subclauses. Firstly:

In proceedings against a person seeking a remedy in tort—

that is, if they are not going through the Equal Opportunity Commission but they are going through the normal court processes—

for an act of victimisation committed by an employee or agent of the person, it is a defence to prove that the person exercised all reasonable diligence to ensure that the employee or agent would not commit an act of victimisation.

I do not see that the Attorney should have any quarrel with that. That is to me a perfectly reasonable proposition, that provided the person who is the employer is able to say, 'I did everything that was reasonable to make sure that this person didn't victimise another person,' that is a defence, but for a person who personally commits an act of victimisation a penalty is imposed, and the maximum penalty is $10,000.

Then it goes on to provide, so that there is some limit on how that might be addressed, that proceedings for an offence (to get that $10,000 penalty) 'may only be commenced by a police officer or by a person approved by either the Commissioner of Police or the Director of Public Prosecutions'.

I think that it is all fairly rational and reasonable. As I said, I do not think that the government and the opposition are necessarily very far apart in what the intention is with regard to victimisation. We simply think that the proposal by the Hon. Ann Bressington is a reasonable addition to what already appears in that section and so we support the suggested amendment that has come from the Legislative Council.

Motion carried.

Amendments Nos 25 to 38:

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

That the Legislative Council's amendments Nos 25 to 38 be agreed to.

Motion carried.

Amendments Nos 39 and 40:

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

That the Legislative Council's amendments Nos 39 to 40 be disagreed to.

Amendments Nos 39 and 40 are a bunch, really. There were attempts to resolve this matter and compromises were rejected, so these matters remain in dispute, so I move that they be disagreed to.

The ACTING CHAIR (Hon. M.J. Wright): Does the leader wish to speak to either of those?

Mrs REDMOND: No, other than to say we obviously support the amendments.

Motion carried.

Amendment No. 41:

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

That the Legislative Council's amendment No. 41 be agreed to.

Can I say that it gives me great pleasure to agree to amendment No. 41.

Motion carried.

Amendments Nos 42 and 43:

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

That the Legislative Council's amendments Nos 42 and 43 be disagreed to.

I think amendments Nos 42 and 43 have the same problem as 39 and 40, so I disagree with both of them.

The ACTING CHAIR (Hon. M.J. Wright): Does the leader wish to speak to those?

Mrs REDMOND: No, other than to say that we have discussed this at some length with the Attorney and we remain at loggerheads over the issue, although I do think that the most substantive thing over which we are at issue is the appointment of the commissioner that we already discussed in the earlier clause. Most of these others would have been capable, I think, but I suspect that the Attorney wants to have a few more things that go to the deadlock conference.

Motion carried.

Amendments Nos 44 to 47:

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

That the Legislative Council's amendments Nos 44 to 47 be agreed to.

Motion carried.

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