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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Independent Commissioner Against Corruption (Investigation Powers) No 2 Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 19 June 2019.)

The Hon. A. KOUTSANTONIS (West Torrens) (16:38): I now resume my remarks, which the house generously gave me leave to continue from the last session. I thank the house for the leave it has granted me. To summarise the opposition's position, I can indicate that we support the bill with the amendments of the Legislative Council. I will have lots to say about the amendments filed by the Deputy Premier in my contribution; for the record, Labor opposes all of them.

By way of background, I am advised that on 10 May last year the Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018 was introduced into the parliament. That bill was withdrawn. It was withdrawn and referred to the Crime and Public Integrity Policy Committee on 26 July 2018. I am a fortunate humble servant of that committee on behalf of this parliament.

We diligently went about our work on this committee investigating the executive's wish to dramatically expand the ICAC's role. The Crime and Public Integrity Policy Committee handed down our report, which was unanimous, on 20 September 2018. That report made eight recommendations on the government's proposed legislation. I am sure all members have read it thoroughly and could quite easily recite it word for word.

On 15 November 2018, almost two months later, the Treasurer in another place, the Hon. Rob Lucas, introduced the Independent Commissioner Against Corruption (Investigation Powers) No. 2 Amendment Bill, a second bite of the cherry. That same bill was received here from the other place with amendments on 2 April 2019, some two months later and, of course, it is now September and we are still discussing this legislation.

Finally, we are considering this bill. I am not sure why the Attorney-General delayed the bill and I look forward to the Attorney enlightening the house perhaps in her response, in her closing remarks, or in committee about why it has taken so long to get here. I do have some theories. I think there is some internal disquiet amongst the backbench of the government and perhaps even within the cabinet.

I think, if there is disquiet amongst the backbench, it would be fascinating to see within the Liberal Party—which has boasted over another debate the autonomy and independence it gives to its members to speak out—whether or not its members have reserved the right on this bill, and whether they will exercise the independence they claim the Liberal Party affords them, or whether they will en bloc vote with the executive to create I think something very, very dangerous here in South Australia.

As I mentioned earlier, the Crime and Public Integrity Policy Committee made eight recommendations. It is important to note that not all of those recommendations were dealt with in the government's legislation. Shockingly, they did not adopt all of the Crime and Public Integrity Policy Committee's recommendations, even though it was unanimous and chaired by a Liberal MP, the Hon.—mental blank—Dennis Hood. What confused me is I said 'government Liberal MP'. He used to be an Independent in a number of other parties and this is a certain manifestation of his political ideology now.

Not all of the recommendations were dealt with in that bill, which I was surprised, because the committee is made up of, I think, some very learned government members who are quite reasonable in my experience. The great thing about the committee process is that a lot of the partisanship that besets this parliament, especially in question time, is cast aside. I often say that I really wish the public could see the good work done on committees in a bipartisan way for the betterment of the state. You really do see the best of this parliament in the committees because that is where you get that crossing of the streams as it were when members work together collegiately to try and get a good outcome.

This was quite a rare outcome because there was no dissenting voice to my knowledge. I could be wrong, but I do not think there was a dissenting voice. We had on that committee who made those recommendations Labor MPs, Liberal MPs, SA-Best MPs, and there was a uniformity of view, which is quite rare.

As I have said, the opposition supports open hearings, but we want to ensure that there are adequate protections for those who may be adversely impacted by the trial-like nature of public hearings. There is a reason why police interviews are not done in public. There is a reason why interrogations are not done in public. One reason is that people are afforded certain rights.

As I said in my remarks a few months ago before this bill was adjourned and I sought leave, in a hearing where the ICAC commissioner is sitting in an elevated position—much like you are now, Mr Deputy Speaker—with a very large crest above his or her head saying 'Independent Commissioner Against Corruption', witnesses are sworn, a counsel assisting the ICAC is asking questions and the witness before the ICAC is seated in the chair, the reasonable viewer would look at that and think, 'This isn't a tribunal. This isn't the executive using coercive powers in a tribunal-like process. This is a trial.'

Indeed, from memory I think the ICAC Act even has minimum criteria for who can be the ICAC commissioner. They are either a senior counsel or a retired judge of some sort. I do not want to bind the house to that, but that is my memory of the qualifications of an ICAC commissioner. It is reasonable to think that the public viewing this may previously have seen the person sitting in the ICAC's chair delivering verdicts on television or in the paper as a justice or a senior counsel, giving comment in all their regalia.

People might assume for a moment that these proceedings were conducted with some sort of adversarial approach, where the judge sat in judgement in this adversarial system and made a final judgement, whereas of course it is nothing of the sort. It is very dangerous, so my colleague in another place the shadow attorney-general, the Hon. Kyam Maher MLC, filed a raft of amendments to put into place the sort of protections and procedures that have evolved around the court system over centuries.

They are rights and protections that we all take for granted when the state attempts to make an accusation or a case against one of its citizens. What are they? Well, one of the most basic tenets is the right to a lawyer. For the life of me, I still do not understand why the ICAC commissioner, although I understand he has yielded on this position, did not want people before the ICAC to have some form of legal representation. There is a right to know who your accuser is and what the accusations against you are.

Remember, this is not a closed hearing where, for example, if you are the suspect in a crime, police interview you with your lawyer, they tape proceedings, presumption of innocence is there and there are certain rights by statute and under common law. You have the right not to give evidence that may incriminate you, the right to a lawyer and other rights that, again, we all take for granted. Here, the questions that are asked of you are asked in public.

The thing about being asked questions in public that may embarrass or incriminate you unfairly, given the nature of the question, is that they cannot be taken back. The reason they cannot be taken back is that we are asking reasonable people who have grown up in a system of justice that is adversarial, where people assume it is a court-like procedure, when in fact it is not.

People at home will not know that you do not have the right not to answer. People at home will not know that this is not an adversarial system, that this is a lot like the police or the parliament passing a law saying that the process for anyone suspected of murder, when they are interviewed by police, will be made public. The ICAC commissioner would say that corruption inquiries will still be done in private. We are talking about maladministration and misconduct. Let's say for administrative issues, another form of civil litigation, there is an adversarial process.

It is fair to say that many of the amendments that the opposition moved in the other place were recommendations that came out of part of the Crime and Public Integrity Policy Committee or were recommendations from the Law Society or the Bar Association. What is important about these two associations?

It is easy when you are in the executive to find organisations that trumpet protecting the rule of law inconvenient, as I did when I was a minister. The Law Society can be annoying, especially if you are attempting to pass laws to protect people. You are doing your best, but the Law Society point out long, hard-fought rights for individuals, even if they are ultimately guilty, because that is the system of justice that we have in this country, the system that defines us as an open, democratic, free state.

When bodies like this raise concerns about the executive attempting to interrogate people in public that could completely destroy their reputations fairly or unfairly without the protections that accused murderers and paedophiles have in a court system, they speak up. You only have to look at what occurs in other jurisdictions where there are these open trials to note that often the outcome is humiliation but no conviction.

The other place did not support all our amendments, but, importantly, the legislation we are considering here today does include many amendments that are vital to the rule of law in this state. In broad terms, the amendments have succeeded to do a number of things: the commissioner himself or herself must head the public inquiry. Why is that important? We do not want public inquiries outsourced to people who have not been selected by the democratic representatives of their state to conduct these inquiries. The ICAC commissioner is ultimately chosen by the Attorney-General and the cabinet. The unique thing about the cabinet as a form of executive in the Westminster system of government is that they are elected by the people. There is a broad mandate there.

The idea that the ICAC commissioner, who is unelected, could then delegate to someone else to conduct this inquiry, when the people have had no say whatsoever in choosing them, is a mistake. It should not be allowed to occur. I hope members agree with the opposition's amendment here because it is vitally important that we do not have people who perhaps may not be qualified or, even more importantly, are undemocratically appointed to sit in judgement of our fellow citizens.

All our judges are appointed, through the Crown, by elected members of parliament, whether they are in cabinet or are recommending it to the Governor in Executive Council. There is a broad mandate there. The idea that somehow a judge or a senior counsel, after receiving that mandate from the elected body of this parliament to form cabinet, can then delegate that again further to conduct open hearings I think is a mistake and we should stop it. That is a democratic principle that we should enforce.

The insertion of a review of the act by the Crime and Public Integrity Policy Committee was successful. The person heading an investigation must act in accordance with the principles of procedural fairness and, in the case of a public inquiry, an examination of a witness must be conducted in accordance with the rules of evidence and the practices and procedures applicable to a witness giving evidence in a summary proceeding in a Magistrates Court.

To an ordinary person, I submit to this parliament that that sounds pretty bloody reasonable. In my view, it is pretty reasonable that, if you are going to have a public inquiry that looks like, sounds like and acts like a court and if you are going to put to them accusations and questions, you do so with the provisions of procedural fairness. It is no good allowing a lawyer to stand alongside you while you are being tried if they cannot act like a lawyer. It is important that lawyers, as much as we all may have our views about them, are allowed to do their jobs.

It is no good saying that you can have a lawyer if the lawyer cannot do anything. If they are just there as a witness to watch, it is of no use to anyone. Lawyers need to be able to object and to enforce through objection procedural fairness, to know who the accuser is. Of course, a system that most South Australians, and indeed most Australians and most people in western democracies around the world, would be familiar with would be the type of procedural fairness afforded in courts like our Magistrates Court.

The next point was that a witness in a public inquiry can call their own evidence and then also be allowed to be represented at other witnesses' examinations. Why is that important? Let's say that, hypothetically, there is someone waxing lyrical about the Deputy Speaker in a maladministration inquiry. It is highly unlikely because of the character of the man, but you never know. Someone may have a grudge against him. If these proceedings are publicly aired, the Deputy Speaker's good reputation that he has spent a lifetime building up on Eyre Peninsula could be ruined overnight because he is not afforded the ability to have a lawyer there to say, 'I object to what this witness is saying. Please substantiate your allegations.'

Do you know why we do not publicise those things? It is because in an inquiry we usually have a police officer, or some sort of tribunal officer, taking evidence from people in secret and transcribing it. If they feel there is a case, they go to the DPP and the DPP then presses charges. We all go to a court and he has the ability to test those accusations in an adversarial system and that is how we get justice. It is not perfect, but it is better than anything else.

In this system, you are tried by the accusation. In secret, it does not really matter that much because, ultimately, no-one's reputation is harmed, unless the ICAC commissioner, at the end of all this process and after hearing submissions from everyone, forms a view, which is appropriate. But the idea that before the ICAC commissioner forms a view you can be tried, convicted and found guilty in the minds of the public because of the airing of a TV program or the 6 o'clock news is abhorrent to everything we stand for in this parliament. It might be fun to do that to your political opponents. It might cause five minutes worth of glee, but think of the long-term ramifications for the public and the long-term ramifications of what this actually means.

The state, with all the power of the Crown, is allowing these things to be aired in public without the adversarial system or the proof that we allow in an adversarial system. Even to this day, unless I am incorrect, the Supreme Court still does not let cameras inside their proceedings to film proceedings and publish them live in South Australia, or allow witnesses' evidence to be filmed and aired that night. Generally, judges like to wait until the very end. That is why we still get the court sketches and the vision of people leaving court outside, but I could be wrong about that.

It is important to protect people's rights and liberties if we are to go down this path of public inquiries, which I understand the argument for. If you want to have justice and justice seen to be done, and if you want an open ICAC, why not allow the public to have a look as long as we protect the people involved; otherwise conduct them in private, as police investigations are currently conducted now. Is it really a good idea at any stage of any investigation to have it aired publicly from start to finish? Think of the consequences of the police being forced or wishing to air publicly all the interviews of their suspects.

We believe that these amendments provide transparency and, importantly, protections for witnesses. That should not preclude the commissioner from holding public inquiries. Earlier, I alluded to the government's filed amendments to the bill that I think, in essence, undo everything the Legislative Council has sent to us. I think that is good work. Amendments Nos 1 and 2 the government has provided to us can be considered together. As I understand them, the amendments remove the ability for the Supreme Court to extend a time limit for appeals. Why would we want to do that? Why? What is the purpose of limiting a citizen's right to go to a higher court or a court and lodge an application? Why should we do that? Why is that appropriate?

Apparently, the government thinks two business days is appropriate time to find a lawyer, brief them and have them make an application to the court from the moment you get your subpoena—two days. I do not know about you, Mr Deputy Speaker, but unless you have lawyers on hand, on retainer, it is pretty hard for an ordinary, reasonable person to get organised that quickly to lodge an application to the Supreme Court, let alone what it does to the ability of a lawyer to adequately prepare and make submissions to the court on behalf of their client. I would be fascinated to know from the Attorney-General whose idea that was. As I said, engaging legal counsel over two days is exceptionally brief.

I am informed by my parliamentary friend the shadow Attorney-General, the Hon. Kyam Maher, that he asked whether a person could file an intent to appeal and provide a full submission at a later date. Given the short time frame, can an individual lodge an intent to the court that they want to lodge an appeal and provide the submission later? The staff at the AGD, who were briefing my honourable friend, did not know. 'Did not know' should send a level of alarm through the parliament. Again, we are talking about democratic liberties here.

I also understand that during the briefing the opposition had with the AGD staff about this bill, my honourable friend the Hon. Kyam Maher asked AGD officers if they could point to a single example of where else appeals to the Supreme Court or any other court are limited in this manner. Shockingly, they could not.

We are introducing in this bill a new precedent that when the state comes after you to put you into an inquiry—a coercive inquiry with coercive powers, with all the awesome powers of the Crown at the fingertips of the ICAC commissioner—you have only two days to find, brief and submit to the Supreme Court an application for an appeal. That seems to me like the state is cheating and attempting to use this parliament to subvert people's basic democratic rights—that is, access to appeal to a court—and that is unacceptable. I think, quite frankly, most reasonable members would agree.

What is wrong with seven days? What is wrong with 14 days? What is wrong with 21 days? What is wrong with no time limit? If the ICAC's case is as good as they think it is, and they want you to appear and give public evidence, then surely it is just a matter of making the argument to the court and the court says, 'I am sorry, Mr Koutsantonis, or Mr So-and-so; the ICAC is perfectly reasonable to call you before them and give evidence. You have wasted your time and your money—off you go.' Or are they really worried that the court might say, 'Actually, no.' But, at the very least, you have been given the ability to seek justice, but apparently that is too much for the Attorney-General and I think it is a shame.

I think, and the opposition believes, that this is an attack on the protections and procedures that have evolved around court systems for centuries. Alarmingly, we have still not received answers to those questions. I really want to draw members' attention to amendments Nos 7, 8, 9 and 10. These amendments, proposed by the government, are entirely opposite to the will of the other place—entirely—and remove what I think are protections that most South Australians would ordinarily think were in place as a matter of course.

But, given that we are debating whether they should be removed here or not, I have to say that I never believed in my 22 years in the parliament that I would be standing up watching a government attempting to remove some of these rights from a public hearing. The effect of amendment No. 7, filed by the Deputy Premier and the Attorney-General I am advised, is to the delete the requirement for the rules of evidence, procedural fairness and Magistrates Court proceedings. Let's think about that for a moment.

I ask members of the house to go back to their constituencies after we rise and walk into any year 11 legal studies class and ask those students whether or not the state should conduct itself in an inquiry using the principles of procedural fairness. I bet you that each and every one of those young South Australian citizens would say yes.

In fact, I reckon that if you went to the local footy club, or the local soccer club, or netball club and spoke to the mums and dads or the players there and said to them, 'When the state is conducting an inquiry that could lead to your humiliation, your embarrassment—even imprisonment—should the state use procedural fairness in the conduct of its inquiry?' If you ask them if all of that should come with procedural fairness, I think that most people would say yes. I think that there are probably farming families who claim that there is not procedural fairness when others attempt to access land—maybe. Procedural fairness is one of those things that underpins democratic societies.

I am no expert on the rules of evidence, I am not an authority on the rules of evidence, but my understanding of the rules of evidence is that it has been borne out over a long, long, tortuous evolution from the Crown handing over power to a democratic institution, and through the separation of powers through the courts and the legislature, that we have established broad principles about what the rules of evidence should be and that those rules of evidence, again, define us differently from countries that are governed by regimes and dictatorships as opposed to western liberal democracies. I have to say that I am surprised that any lawyer, or anyone who has a love of the rule of law, would vote to repeal procedural fairness and the rules of evidence.

Then we get to the rules of the Magistrates Court. Why has the other place imposed the rules of the Magistrates Court on these proceedings? I am assuming, without delving into their minds, that they accepted the recommendation of the Crime and Public Integrity Policy Committee, which is that, again, if it looks like a court, acts like a court, most people think it is a court, so give it the rules of a court, otherwise you will not have justice, and I think that is probably right.

Why the Magistrates Court rules and not the Supreme Court or any other court rules? I think what they are attempting to do is to establish a set of rules and procedures for public inquiries to ensure that we protect witnesses from undue harm through false accusations. All you have to do is go to the ICAC Twitter site and look at a video of the ICAC commissioner talking about his first day of operations as ICAC commissioner when they went live. The first thing he said was, 'There are a whole heap of complaints that we received that had no place here,' which I take as they had no substance.

We are very lucky to have the Hon. Bruce Lander QC, a former Supreme Court judge and Federal Court judge as our ICAC commissioner, because I think he is a very, very good ICAC commissioner who can tell between what should be investigated and what should not be, but we are deciding legislation that could be in place for 20, 30, 40, 50 years. This parliament cannot predict who will be the next ICAC commissioner. This parliament cannot ensure that we always get the same calibre of the Hon. Bruce Lander QC, or the reviewers, Mr Sulan and his predecessor Mr Duggan, pre-eminent South Australian lawyers and judges—beyond reproach.

But we are not here to make law on the strategy based on hope that we keep on getting these good men or women to serve in these roles: we have to build a system that protects the public from the excesses of executive fear. That is our job. That is why the Crown is not allowed in this place. We are based on the Commons. Our job is to protect the public from the excesses of the Crown and to govern. That is our job.

I have grave concerns about all this, and I am sure that people with far greater legal expertise can make a better argument about this than I could, but I am speaking from the perspective of a layperson in the parliament who has seen firsthand the power that ministers can wield, and they wield it on behalf of the Crown.

We need to make sure that there are safeguards in place for the many who are not as privileged and not as powerful, and who are not able to defend themselves. That is why I think those three principles—procedural fairness, rules of evidence and rules of the Magistrate's Court—should be a no-brainer for all 47 of us. If the ICAC thinks that by operating under those circumstances he cannot undertake an appropriate inquiry, then conduct it in secret.

We are not limiting his ability to investigate maladministration or misconduct. What we are saying is: you are potentially ruining the reputations of innocent people who are going to have false accusations levelled at them—because they may end up being false. Remember, there is no recourse here. If someone accuses you of maladministration or misconduct and it is proven in the end that there was nothing there, all that is left are the images of the accusation. With the permanency of the internet, those accusations never go away; they follow you to every job interview, to every bank loan, to every aspect of your future life. They cannot be washed away. We are in a digital age.

When I first came to this parliament, the parliamentary library kept detailed cuttings of events from all the papers from all across the country, such as The Australian, the Financial Review, The News and The Advertiser. If you wanted a record of what had happened—I can give you a modern-day example of this. I digress, but please forgive me, Mr Deputy Speaker.

Former prime minister John Howard used to be the treasurer under the Fraser government and he earned the moniker Honest John. Honest John was a sarcastic moniker because of the bottom of the harbour scheme. Over time, the Honest John moniker turned into a virtue, because there was no digital memory. He was Honest John. The nickname stayed but the meaning was lost.

In today's world, the accusation and the context remain in perpetuity because of the digital age. That is why the upper house saw fit to put these protections in place: because what is said cannot be unsaid. What is seen cannot be unseen. It cannot be taken away. Once it is out, it is out and there is nothing any of us can do to remedy that—nothing. Once the accusation is made against the powerful or the weak by a person under privilege, it cannot be undone.

The nature of ICAC inquiries is that they will be salacious. They will be sensational. They will be covered. They are newsworthy. Once the accusation is made against a minister, or a public servant, or a police officer, or a firefighter, or a nurse, or a doctor, or a teacher about maladministration and misconduct in public, it cannot be undone. There will always be people, no matter what the final report says, who will believe the accusation. There is nothing that we can do in this place to remedy that—nothing.

There are still people who believe that Lindy Chamberlain killed her baby Azaria. There are people who still believe that to this day. There are people who will not believe the final report. You have to say to yourself, if you are the subject of one of these inquiries in public and you are tested like steel in a furnace, and you come out after all the slings and arrows thrown at you, if it has not destroyed you financially, emotionally or psychologically, when you get out, with the 1,500-page report published by the ICAC, with four printed copies and a copy put online, the exoneration will not be as big as the accusation. So, unless you are prepared to carry the 1,500 page exoneration around with you for the rest of your life, all everyone else will have is the three-line accusation that was on page 1 or 2 or led the news that night ingrained in their brains. That is why the upper house saw fit to put these protections in place.

We oppose the Attorney-General's move to remove those three key pillars completely. We also believe that amendments Nos 8, 9 and 10 curtail the ability of legal practitioners to represent and defend their clients. The effect of the amendments filed by the Attorney-General is to limit the actions of legal practitioners to those approved by an ICAC commissioner. Who says the ICAC commissioner can choose your lawyer? Why? The DPP cannot choose your lawyer. If you are being charged by the DPP or being investigated by the police, they cannot tell you, 'No, you can't have this lawyer.' Who does the Crown think it is to tell members of the parliament that we can check your lawyer?

This parliament should not allow it. This house should absolutely refuse that amendment. I hope there are no lawyers in this house who think it is okay to have a higher authority vet your lawyer. We trust the bar, we trust the associations and we trust our universities to teach and train our lawyers—lawyers who have practice certificates and are legally allowed to operate in this state. You should be able to choose, unfettered, who your legal representation is, not from an approved list by the ICAC commissioner. That is completely unacceptable, and for any member of this house who thinks that is a good idea, I have grave concerns about their grasp of democratic principles. We oppose that.

I want to reinforce that we support the concept of public hearings. We think they are a good idea. Congratulations to the government on pushing forward the public hearings. We are here to help; all we are attempting to do is provide some balance, some fairness and, most importantly, some context. When sitting through the Crime and Public Integrity Policy Committee for the weeks and months that we were during this inquiry, there were people who gave evidence to us who were no friends of the opposition: people who hold quite senior roles, I understand, in the Liberal Party. The Bar Association, to the best of my knowledge, has very rarely ever given evidence in a parliamentary inquiry and made recommendations; that is usually left to the Law Society.

To see someone of the calibre of Mr Edwardson QC—someone who I think is well known to members opposite—give his evidence and to hear the eloquence and passion he brought to that evidence and the principled position he argued from, we should hang all our heads in shame if we pass the amendments proposed by the Attorney-General. This is a man at the coalface. This is a man who has defended the guilty and the innocent on the basis of a cab-rank system, on the basis of fairness, on the basis of democratic principles and our judicial system. I think, without putting words into his mouth, what he found was that the bill was going too far.

Let's take a step back and talk a bit about the context of the ICAC altogether. We are seeing this debate now in the commonwealth parliament where the ICAC is being considered. I think it has even passed the Senate now and gone to the House of Representatives for consideration. The ICAC is basically a form of the executive. When I say 'the executive', it is not an independent arm of government. It is not like the courts. The ICAC is not independent.

The ICAC commissioner may be independent in his exercise of authority under the act, but what the ICAC really is, is the executive using legislation to investigate its employees which it defines as public officers. They are pretty remarkable powers, powers no other employer has. Woolworths does not have this power with their employees. I do not think even the police do because in any internal investigation with the police ultimately the rule of law would apply.

These are unique powers conferred upon the ICAC commissioner. I supported those powers being introduced but we put in a very big protection—closed hearings, closed investigations and secrecy provisions—for a couple of reasons. Why the secrecy? Well, the secrecy is there to allow the ICAC to do its job to investigate, sometimes covertly. They have the ability to tap phones and they have the ability to hack in to computers. The ICAC has no power in this parliament or the Legislative Council because of privilege and the ancient rites and customs that we have adopted from the mother parliament, as it should be.

The ICAC has no ability to infringe on privilege and an active example of that is Treasurer Lucas. Treasurer Lucas set an excellent precedent and I applauded him. I understand that the shadow treasurer at the time was given information by a public servant. I understand from media reports that the ICAC asked Mr Lucas to attend the ICAC to inform the ICAC who the individual was. Mr Lucas has been in this parliament since 1982. He understands privilege and he understands the role of a member of parliament and he quite rightly told the ICAC to mind its business and not to infringe on the rights and privileges of parliamentarians into discourse with their constituents. The matter ended there. An excellent precedent.

However, what is happening is that the executive believes that privilege, as a concept, is too broad, too large. Indeed, the ICAC commissioner himself, in the Crime and Public Integrity Policy Committee, was advocating a restriction on privilege. People have died fighting for the rights of privilege. People who have never been afforded the right to privilege have fought and died to maintain it. So when the ICAC commissioner asks that privilege be limited in some matters in this chamber, in committees of this parliament, that should send alarm bells ringing because, if it could happen to the Hon. Bruce Lander QC, what will happen to the next person? Mr Lander is an expert on privilege and the supremacy of parliament. He has written essays and papers on it. He understands it better than almost anyone.

That is my concern with the overreach of the executive. This is not particular to the current Attorney-General or any attorney-general. This is not a Labor/Liberal thing. This is not a member for Bragg/member for Enfield evolution. This is the executive, whoever it is, attempting to increase its power and its reach and it should not be allowed. It should not be allowed. There need to be checks, which is why we are here. I do not know where this legislation will ultimately end. Without wishing to offend anyone, my instincts are that the Attorney-General's amendments in this house will be carried and that we are heading to a deadlock with the other place.

I do not know if the Attorney-General is willing to bend on these. Perhaps a suggestion could be that, in order to begin the first steps towards public hearings, we will leave the current amendments in place to give the ICAC five or 10 years to bed in the practice, and we will have a review in five or 10 years' time on how the amendments given to us in this bill from the upper house operate in practice. How will procedural fairness, the rules of evidence, the right to a lawyer and the right to appeal a decision to appear before a public inquiry evolve in operation?

Perhaps the best thing for us to do over the next couple of years is take small steps, meaning that we allow the upper house to have its way, as offensive as that is for members of this place given that we always claim supremacy over the other house, although we are equal. Perhaps we should allow these amendments to operate for a while to see how they work. Then, if the Attorney-General could attach an amendment that may lead to a review of these procedures in five or 10 years' time, that is something that the opposition could be convinced about, I think.

But the idea that we would remove these protections and change our votes in the upper house will not occur. The opposition is committed to the rule of law. The opposition is committed to transparency and open hearings, but we are not going to allow the rights of the individual to be trampled. We are not going to allow the coercive power of the state to ruin people's lives—we just will not. One of the clauses in the ICAC Act gives the ICAC commissioner the ability to waive the secrecy requirements for people before it for emotional counselling. The reason is that, for people brought before the ICAC, it can be a life-altering process, especially if they are not of means to defend themselves or if they are not of the capability.

We were talking about public officers. The definition of public officers may be codified but can be expanded. If the ICAC commissioner believes that a contractor is a public officer, then they are, and they have two days to make an appeal to the Supreme Court—two to find a lawyer, write a submission and put it to the Supreme Court to say, 'I'm not a public officer. I'm not part of this tribunal. I'm not employed by the state.' These are the far-reaching implications of this bill passing in its current form if the Attorney-General's amendments are successful.

The opposition is concerned, given some of the answers that we have received from AGD on the briefings. Again, without wishing to offend anyone, there is a little bit of uncertainty within AGD and the Attorney-General's office about the consequence of some of the amendments. In my experience, if there are uncertainties about legislation, it is best for a pause because it is very hard to undo what is done.

Our shadow attorney-general lacks confidence in the briefings he has received about the precedent we are setting. My concern is that, if the amendments of the Attorney-General become law, that is the precedent and we will start seeing these precedents seep to other practices outside administrative tribunals and come into play in the court. That is of great concern.

In my experience, some young whippersnapper will get up here one day as attorney-general and say, 'Well, I'm surprised the opposition are opposed to this legislation. It's an operation in the ICAC Act; it has been for five years, or 10 years, or 20 years.' So what we do today has consequences not just for this bill, not just for people before the ICAC, but for other pieces of legislation, for other matters that will be considered, for other forms of judicial justice.

Given that we do not know who the Attorney-General is going to pick as the next ICAC commissioner, I have grave concerns, given that it will not be Bruce Lander, about the exercise of the power or authority the government bill attempts to give a new ICAC commissioner. It is probably unlikely that the Hon. Bruce Lander QC will conduct one of these inquiries in public, given that time is running out fast, unless he is granted an extension. We are not likely to have him, with all the weight and prestige, age and experience of a man who has lived and breathed the law since university and understands democratic principles and understands the rule of law, conduct himself in a public inquiry. We are going to get someone we do not know. It is the fear of the unknown.

That is the thing about making laws, that when you are in the cabinet generally you stick to your knitting and you stick to the area of your responsibility. I have not been in opposition for 16 years; indeed, I am the only member of the opposition who was in opposition previously. It is important to remember that being in opposition also means asking some of the difficult questions of the executive. Not that the executive wish to undermine democratic principles or judicial rules. It is just that, simply, they are now in a process of government which is all-encompassing and enveloping, and that process can sometimes get things through the cracks. That is why it is our job to hold things to the light, point out inconsistencies, point out matters that are perhaps best left alone.

However, I have to say that I think the Attorney-General is actually someone who believes passionately in the rule of law. I believe that she does want to see no-one innocently accused and besmirched before and ICAC process. I do not think the Attorney-General believes that if the ICAC is given all these powers without the protections put in place by the upper house anyone will have their reputation damaged. I do not think the Attorney-General is setting out to deliberately create this monster. What I think is happening is inadvertent. We are all people of goodwill. We all take advice.

I have been in a room when the ICAC commissioner, the Hon. Bruce Lander, has advised the cabinet and we have taken that advice, and people have criticised us for taking that advice. So it is very easy to find yourself in a situation where you are acting against principles that you may have held dear because you are a person of goodwill and you actually want to make the system more accountable.

What is the Attorney-General's intent here? I think the intent is: we made an election commitment for open inquiries. Why the open inquiries? I assume because they want to make sure that justice is seen to be done as well as being done. I note that the Supreme Court is not televised. I wonder if the new Court of Appeal will be televised.

The Hon. V.A. Chapman interjecting:

The Hon. A. KOUTSANTONIS: The Attorney-General says the Supreme Court will be televised, so that is an interesting new development unless I misread what she said. The adversarial system that affords you all the protections is basically done untelevised, but the administrative tribunal that can coerce you to answer questions is publicised.

I believe these administrative tribunals that have coercive powers started at a commonwealth level with the National Crime Authority. I could be wrong about that. There could have been an earlier incarnation of that, but I understand that, to this date, those inquiries are still held in secret and that they overwhelmingly investigate criminal activity. I am not sure if the federal body that is being advocated in the House of Representatives as we speak calls for public or private hearings, but I have seen in practice the appalling outcomes of the ICAC in New South Wales and the damage that it has done to innocent individuals.

I contacted one of these individuals, a firefighter who had been falsely accused in the ICAC, and asked him to give evidence to our Crime and Public Integrity Policy Committee about what he went through and what it did to his family. He was so scarred by the outcome of those inquiries that he could not even give written evidence to our inquiry. There is the other case of a very prominent Queen's Counsel in New South Wales who also had her good reputation ruined by the ICAC.

Just remember, in the end, ICACs do not send criminals to gaol: courts do. In the end, ICACs are no different from anti-corruption police or police officers. They are law enforcement. Law enforcement in this state for every other matter operates under principles and we watch them like hawks. In fact, we are so concerned about police overreach that the Police Complaints and Discipline Act is now overseen by the ICAC commissioner because of the awesome powers of the police, but even the general arrest powers that police have have checks and balances. What checks and balances does the ICAC commissioner have, other than the reviewer?

The reviewer, Mr John Sulan QC, who is a former justice of the Supreme Court, and his predecessor, Mr Kevin Duggan, have no permanent staff—none. In fact, both men use their former private secretaries to do their work and they pay for them at their own expense. They have no staff. They rely on the ICAC or the Attorney-General's Department to give them office space, but in terms of staff, they have none. They second ICAC staff, so the OPI is overseen by a reviewer who relies on the OPI to give him or her the information he is reviewing.

Our intelligence agencies have a very different type of review. They review intent. They review process. I have to say that, since I sat on the Crime and Public Integrity Policy Committee, the overwhelming number of complaints we have received about the OPI or the reviewer are not about how they conduct their statutory roles. Hardly anyone complains about that. What they are complaining about is what they do not do. The reviewer did not check this or the reviewer did not check that. The reviewer, quite rightly, says, 'That is not part of my scope.'

I think—and I say that arrogantly—what the public want out of a reviewer is much like what we have in our national security agencies with an inspectorate. The inspectorate ensures that Australians are not spied on and that listening devices, warrants and court orders are obtained appropriately. Most importantly, they check intent. No-one checks the intent of an ICAC commissioner: 'Why did you call this person? Why this person and not that person?' That is not done. There is no-one second-guessing or asking for review of conduct.

We are lucky we have the Hon. Bruce Lander QC. I sleep soundly at night in the knowledge that he is a man who will not exceed his powers. But I pose this question to you: what if the next person to sit in that chair is no Bruce Lander and they have these extraordinary powers that the Attorney-General wants to give them—not to conduct these inquiries in secret, but in public?

In my experience, conducting a public inquiry is enough to ruin someone, even if you cannot prove maladministration or misconduct. I would hate to think that that is the intent of wanting public inquiries. If the bar is just too high and they were to publish a report after a secret inquiry to find maladministration and misconduct, the way to get them perhaps is just to conduct the inquiry itself. Maybe that is enough to ruin a life, ruin a career and force a resignation. Maybe, in the grand scheme of things, that is justice. Not as we know it.

There are people the DPP prosecutes who get away with it because we cannot prove beyond a reasonable doubt that they are guilty of their offence. They take advantage of the democratic freedoms and the judicial freedoms that we have built over a lifetime. They are equal before the Crown and if you cannot prove it in a court, bad luck. Maybe the ICAC public hearings can get around that. All you have to do is conduct an inquiry—job done. Maybe you just have a gut instinct that they are guilty of something and all you have to do is hold the inquiry and level the accusations.

The person then resigns, is bankrupted through legal expenses, whatever it might be, job done, they are out and it is enough. You do not really need justice then, do you? It is just enough to have the trial or the administrative tribunal hearing in public. That is my concern and the opposition's concern, which is why we beseech the government to think of generations to come, to think of other innocent parties who could be ruined by this process. Without strengthening the reviewer, perhaps there could be some sort of broader role for a reviewer.

I would like to think that we do not need to do all this, and right now we do not. But, as time wears on, like any system, there is mission creep, the scope expands and budgets increase. The budget has increased dramatically for the ICAC—dramatically. I am not sure if people have seen the budget papers recently, but there has been a massive spike in funding for the ICAC even though the ICAC only does maladministration and misconduct inquiries if they are, and there is a certain definition, systemic or severe—I think that is the terminology; I cannot remember what it is—or corruption.

I monitor the ICAC. I am on the Crime and Public Integrity Policy Committee. I do not know how busy they are, but I do not see that many reports, whereas the Ombudsman is crying out for funds. It was pretty unprecedented to see Wayne Lines (I am not sure if he is a QC or not) make a plea to the Crime and Public Integrity Policy Committee for funding. He is such an honourable man, he made no budget bid because he did not think it would be answered. That is what he claimed to the committee.

I do not blame the Attorney-General for him not having the funding. That is what he told the committee. If the Attorney-General is saying otherwise, that raises a great deal of concern for me because of the evidence that we were given. He made a plea because, with very limited staff, he does an overwhelming amount of cases on maladministration and misconduct inquiries referred to him by the ICAC.

The ICAC does not transfer any resources over for these inquiries, so let's be careful what we are building here. Let's have an eye to the future about what we are building here. What is the purpose? What is the intent of what we are building here? Why are we doing this? Let's always go back to first principles: why are we doing this? Is there a case where we are not getting justice by having private inquiries? I think not. Okay, the public want public inquiries as does the government—fine. What is wrong with the protections we advocate? I am yet to hear a really good argument.

I am looking forward to the Attorney-General's closing remarks or the remarks from other members of this place who are much more learned than me about why we should not fear the ability of only having two days to appeal to the Supreme Court before being called before an ICAC inquiry or a public hearing, why we should not allow the ICAC commissioner to vet which lawyer we can choose, why we should not have the principles of procedural fairness apply to an inquiry, why we should have nothing to fear from that, why we should have nothing to fear from the rules of evidence applying in public inquiries or why should we not even fear the rules of the Magistrates Court applying to public inquiries.

That becomes the real question. The real question becomes: why are we doing this? Does the outcome that we are going to get give us a better opportunity to catch people who commit maladministration and misconduct? I think not. But I accept that the public have a right to see what is going on when they have their money being spent at such an enormous rate as we are in the ICAC, but that does not mean that the state has the right to destroy people's lives.

The compromise that the Legislative Council is offering this house is: have your public inquiries, the public can see the ICAC commissioner in operation, they can see the public officers being forced to answer questions, or being interrogated or whatever the terminology is, and you can see your money being spent. But the government do not want that. What the government want is what you would see in a private ICAC inquiry in public where witnesses are not afforded the right to silence.

Think about that for a moment. Think about the fact that you are not afforded the right to silence in a public, filmed, televised inquiry that looks like a court proceeding. Think of what that will do to public discourse in this state. Think about the ICAC commissioner giving you a list of approved lawyers that you can choose from. I have to say that I cannot believe that this is even here, let alone that I am the one arguing against it because I would have thought that the processes of both political parties would get the point where we would say this is just too much.

I get that it is politically popular to have public ICAC inquiries but it is also politically short-sighted because of the potential damage it does to individuals, let alone the damage it may do to government ministers. This is another piece of nuance that I will share with the house: the opposition is arguing against its own interests because the truth is that it will not be any of us before a public inquiry: it will probably be a member of the government first.

As I said earlier, His Honour the Hon. Bruce Lander QC, will not be around for much longer and probably will not start a public inquiry if this bill passes in the manner the Attorney-General wants it to pass. He will not have time. He will set the ground rules, build the tribunal with the crest, the elevated chair, the glass, the microphones and Hansard taking notes. He will get all that ready and looking like a courtroom, but he will not actually do it. It will be someone else. The cynic in me, the political operative in me, says, 'Let this pass.' Let's see the Premier in a public inquiry answering questions. That always goes well for political leaders. Let's see the Minister for Industry and Skills or even the Attorney-General in a public inquiry.

The thing about being a political leader is that you have a big target painted on your back and sometimes people make unsubstantiated claims that are believable even though they have no basis in fact or reality. There are people who are arguing with us outside the parliament to let this pass, 'Let this pass. Let the government have its public inquiries.' The broader principle is about making sure that we protect the innocent, not the politicians, because politicians are big enough and ugly enough to look after themselves. Do you want me to—

The DEPUTY SPEAKER: A couple more minutes, member for West Torrens.

The Hon. A. KOUTSANTONIS: Give me the cue.

The DEPUTY SPEAKER: We need to read a message before 6 o'clock, that is all.

The Hon. A. KOUTSANTONIS: Is it an important message?

The DEPUTY SPEAKER: They are all important.

The Hon. A. KOUTSANTONIS: Is it from the other place? They can wait, sir. They can wait. There are those who are telling us, 'Let the government have its way for political expediency because you may well get a minister.' Remember, there is no statute of limitations. It might be someone on this side, or it might be someone who had a royal commission find that they breached the ministerial code of conduct.

How would that go in a televised display, where a minister is answering questions without a lawyer, without the right to silence, without the ability to go to a court and say, 'I'm being called here unfairly and unreasonably'? Or maybe it is being done in secret so you can ascertain whether or not there should be an inquiry. Or even to go through the entire process of the inquiry and in the end find there is nothing actually there.

Forget ministers—no-one has any sympathy for ministers or parliamentarians, and nor should they. We have awesome responsibilities and awesome powers and we are paid exceptionally well. But think of the ASO2. Think of the contractor. Think of the council employee. Think of the middle manager who is attempting to procure the savings that have been imposed by the cabinet. That middle manager is out there making cuts to services, creating enemies. An aggrieved party then makes a complaint to the ICAC and all of a sudden they need a lawyer, they cannot afford a lawyer, they are being televised live on air and their life is ruined.

The Hon. V.A. Chapman: Unlike you, who had a QC.

The Hon. A. KOUTSANTONIS: That is right. Or like the Attorney-General, who used government stationery to write personal defamation letters, or who was the subject of a police inquiry as to whether or not she broke the law.

The Hon. V.A. Chapman: By you.

The Hon. A. KOUTSANTONIS: I did not ask the police commissioner; the police commissioner is independent. I do note that currently there is a Renewal SA staffer who has been charged for revealing information about a secret ICAC inquiry—

The Hon. V.A. Chapman: Being charged?

The Hon. A. KOUTSANTONIS: —whereas the number one law officer in the state gets to walk scot-free. But, anyway, I digress.

The Hon. V.A. CHAPMAN: Point of order, Mr Deputy Speaker.

The DEPUTY SPEAKER: There is a point of order.

The Hon. V.A. CHAPMAN: That is a most outrageous allegation by the member.

The DEPUTY SPEAKER: What is the point of order, Attorney?

The Hon. V.A. CHAPMAN: Asserting in relation to my 'walking free', in relation to allegations—

The Hon. A. Koutsantonis: You did walk free.

The Hon. V.A. CHAPMAN: No, look—

The DEPUTY SPEAKER: Member for West Torrens—

The Hon. V.A. CHAPMAN: I insist that there be an apology and a withdrawal of that statement.

The DEPUTY SPEAKER: Yes, I uphold that point of order, Attorney. Member for West Torrens, I ask you to withdraw and apologise.

The Hon. A. KOUTSANTONIS: I apologise and withdraw, sir: the Attorney-General was not charged subsequent to her anti-corruption police investigation.

The Hon. V.A. Chapman: That is a disgrace.

The Hon. A. KOUTSANTONIS: Why? It is true; you were not charged.

The Hon. V.A. Chapman: You are a disgrace, Tom.

The DEPUTY SPEAKER: Member for West Torrens, you have withdrawn and apologised—

The Hon. A. KOUTSANTONIS: I have.

The DEPUTY SPEAKER: —and I thank you for that.

The Hon. A. KOUTSANTONIS: You are welcome, sir; I am happy to help.

The DEPUTY SPEAKER: Given that it is two minutes to 6 o'clock—

The Hon. A. KOUTSANTONIS: I seek leave to continue my remarks, sir.

Leave granted; debate adjourned.

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