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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Crime and Public Integrity Policy Committee: Annual Review

Adjourned debate on the motion of Hon. T. Piccolo:

That the second report of the committee, entitled 'Annual Review of the Crime and Public Integrity Policy Committee into public integrity and the Independent Commissioner Against Corruption', be noted.

(Continued from 29 March 2017.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:04): I believe I am part heard on this matter, so I will only have a few minutes remaining. I would like to acknowledge in this report the outstanding work that has been alluded to that remains outstanding, and that is of the Ombudsman in his report of May 2014. At that time it, was Mr Richard Bingham, and he undertook an audit of the state government departments' implementation of the Freedom of Information Act 1991 (SA).

He had revealed that he had conducted an audit of 12 government departments and agencies and found that, despite the state government's policy initiatives of being proactive in the release of information in a timely manner, there was a disconnect between these initiatives and the act. He found that, in respect of the agencies' approach to information disclosure on the act that it was not only outdated but also that its implementation of the act was wanting and, I quote:

…demonstrates a lack of understanding or commitment to the democratic principles which underpin the Act.

The audit that he undertook revealed some extraordinary things. One of the most concerning was his finding, and I quote:

it is common practice across all of the agencies to provide copies of FOI applications, determinations (draft or otherwise) and documents to their Minister to 'get the green light' prior to finalisation of access requests. While the Act permits a Minister to direct their agency's determination, evidence provided to the audit strongly suggests that ministerial or political influence is brought to bear on agencies' FOI officers, and that FOI officers may have been pressured to change their determinations in particular instances. If a ministerial decision or direction is involved, it should be clearly set out in the agencies' determinations

He went on to say:

the agencies' Chief Executives are not providing FOI or pro-information disclosure leadership.

Consequently, one his recommendations was to introduce a regime of offences for those who might be, and I quote:

…improperly directing or influencing a decision or determination made under the Act.

That was recommendation 26. He went on to say:

A uniform protocol should be created for use across all agencies which codifies the requirements for accountable and transparent communication between ministerial offices and agency FOI officers in relation to access applications under the Act.

This recommendation, along with a number of others in respect of a reform under the freedom of information law, has been utterly rejected in the sense of any advancement by this government.

Here we are, three years later, and there has been an utter failure on the Attorney-General's part. Worse still, when the member for Hartley introduced legislation, it was smashed. More recently, he introduced legislation that had been passed in the upper house: it was smashed by this government. They do not have any desire whatsoever to be open and transparent.

I congratulate the member for Unley, who recently obtained a judgement by SACAT, the new court that now deals with reviews under the FOI Act. In this case, the Department of State Development v Pisoni, which is now forever in the chronicles of the law, his counsel was successful in arguing in respect of the definition that is to apply and the exemptions available in dealing with the concealment of documents created for the purposes of cabinet consideration. That is an important judgement for a number to read; nevertheless, week by week, we have to keep fighting for the disclosure of documents.

This week, we received the Ombudsman's report, which directed, in this case, that the TAFE SA Board disclose their agendas and minutes and not hand me piles of documents with black pages all through them with redactions that are utterly absurd, including some, I might say, where an apology is noted or there is an indication that someone has been granted employment or an award.

For goodness sake, these people are covering our public records with secrecy and we have to go through this very expensive process, ultimately through the courts, to get disclosure of information in documents that the government are hell-bent on keeping secret. When they have right in front of them a report that says there is clear evidence that there is ministerial and other interference with the FOI process, they have refused to deal with it.

I ask the government to again read this report, as it will remind them what the Ombudsman recommended three years ago, and to take notice that they represent the people and that it is their money that is being wasted in courts to have to expose these things.

Mr TARZIA (Hartley) (11:11): I also rise today to speak to the annual review of the Crime and Public Integrity Policy Committee into public integrity and the Independent Commission Against Corruption report. I note that the CPIPC (Crime and Public Integrity Policy Committee) was actually established under the Parliamentary Committees Act 1991. This committee has various functions, but one of them is to consider the day-to-day operations of various integrity bodies in South  Australia—for example, the ICAC.

Of course, we remember that the government originally did not support the creation of the ICAC. It is no surprise why when you see in recent times that it appears that government and government agencies—as I read in today's Advertiser—have unfortunately kept the ICAC quite busy. I read in today's paper, in the news on page 7, that a very prominent leading QC, David Edwardson, on behalf of someone affected by proceedings brought on by this body, says that it appears that certain people involved in ICAC—ICAC investigators—were 'desperate to land a big fish', which is interesting feedback. We will wait and see how that plays out in the coming days.

Of course, we also had the instance of Gillman. We all remember the Gillman land deal and where that landed the government. We also have the Office for Public Integrity, which obviously leads and assesses many complaints and reports about potential matters of corruption, misconduct and maladministration in public administration. There is the Ombudsman SA, whose office investigates complaints about local government agencies and also SA government agencies as well.

We also have the Police Ombudsman, which provides oversight of SAPOL, as well as the Anti-Corruption Branch of SAPOL, which ensures that allegations of corruption in public administration referred to the police by the ICAC are appropriately investigated. I would like to thank the Commissioner of Police, who came in during the week to see the committee and provided us with some useful information about the most recent annual report, especially in light of serious and organised crime. They have come in on several occasions since I have been involved in the committee.

I note that, during the period of review from April 2015 to June 2016, this committee actually considered various reports that were tabled in parliament, not only from the ICAC but also from the Ombudsman, the Police Ombudsman, the Commissioner of Police and also the independent reviewer of the ICAC. As I pointed out, the committee was established to examine many of these reports and also to inquire into and consider the operation and effectiveness of the actual act of the ICAC itself. In particular, the committee should consider the performance of functions and exercise of powers by the ICAC and the OPI, but also look at the performance of functions and the exercise of powers by the Ombudsman and report to parliament on any other matter arising of public policy.

One of these issues of public policy concerns the freedom of information system and the way it operates. We have seen an independent report by an ombudsman a little while back that pointed out that the FOI Act in this state is truly flawed. It is truly flawed for several reasons. We have seen a number of bills brought in by the opposition to address these flaws, but the government, in all its arrogance, continues to ignore this.

During the review period, we at the committee heard evidence from a number of sources, including the ICAC commissioner, Bruce Lander. I thank the commissioner for his insight. I also thank the independent reviewer of the ICAC, the Hon. Kevin Duggan; the Acting Police Ombudsman, Michael Grant; the Ombudsman, Wayne Lines; and SAPOL, namely, as I have pointed out, Commissioner Grant Stevens; Assistant Commissioner, Crime, Linda Fellows; and Chief Superintendent Doug Barr, from the ethical and professional standards area.

The committee made nine recommendations relating to matters of public policy. Firstly, there should be an obligation on a person executing a search warrant to provide a copy of that warrant to the occupier of the place or to the owner or driver of the vehicle to which the warrant applies, which I would have thought was common sense. Secondly, the penalties under the ICAC Act might be too low to provide an adequate deterrent, specifically in the new section 54 confidentiality provision but also in the schedule 3 procedure for resolving legal professional privilege claims. These penalties should be reviewed.

We also spoke about the local government code of conduct and how that should be looked at to address many concerns expressed by the ICAC and the Ombudsman. Not only that, we also looked at the Criminal Law (Sentencing) Act 1988 and how that should be amended to allow the ICAC, as a law enforcement agency, to make submissions in sentencing proceedings where the person has cooperated with the ICAC's investigation. We also spoke about how potentially a detailed analysis should be done in accordance with the terms of reference of the independent reviewer to ascertain the actual efficiency of the ICAC.

We looked at the potential overlap in jurisdictions between the Ombudsman and the Health and Community Services Complaints Commissioner and whether that relationship should be looked at, reviewed and clarified. Given that the ICAC will no longer be given power to issue direction to the Ombudsman, we believe that consideration should be given to whether the ICAC should remain in power to examine practices, policies and procedures of the Ombudsman. It may be more appropriate for an independent reviewer to do that function.

Of course, we looked at the Freedom of Information Act. We believe, and we have pointed out time and time again, that this act needs looking at. In accordance with the recommendations made by the Ombudsman some time ago, we believe that the public interest test should be fleshed out and given more clarification as well. We also looked at a range of potential impacts of the reform package in the future, comprising the Independent Commissioner Against Corruption (Miscellaneous) Amendment Act 2016, the Police Complaints and Discipline Act 2016 and the Public Interest Disclosure Bill 2016. We note that such reform has been addressed in part.

On behalf of the committee, I would like to thank each and every one of those who provided evidence to the committee. I thank the members of the committee, with particular mention of the Hon. Gerry Kandelaars MLC, who was the presiding member of the committee for some time. I also thank the Hon. Dennis Hood MLC and my colleague the gallant Hon. Andrew McLachlan MLC, CSC, as well as the Hon. Robert Brokenshire MLC, a former member of the committee. I thank the committee support staff for supporting the committee through the review, and I commend the report to the house.

The Hon. T.R. KENYON (Newland) (11:19): In the absence of any other speakers, I commend the motion to the house.

Motion carried.

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