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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-04 Daily Xml
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INDEPENDENT COMMISSION AGAINST CORRUPTION BILL

Introduction and First Reading

The Hon. R.L. BROKENSHIRE (15:59): Obtained leave and introduced a bill for an act to establish the Independent Commission Against Corruption; to define its functions and powers; and for other purposes. Read a first time.

Second Reading

The Hon. R.L. BROKENSHIRE (16:00): I move:

That this bill be now read a second time.

Today I hope is another nail in the coffin of what is clearly now the government's resistance to the establishment of an independent commission against corruption (ICAC) in South Australia. I am not Robinson Crusoe in moving for an ICAC today. I know that every other party in this place, including Independents, and in the other place, are committed to an ICAC. There is only one party that is not, at this point, committed to an ICAC, and that is on the public record, namely, the Rann government.

The Family First bill bears a lot of similarities to what has been proposed before. I am sure that parliamentary counsel has had plenty of practice in preparing bills of this nature. I will soon outline the fundamental differences between my bill and others, but I think the time has come for a couple of things to happen.

First, the time has come to stop knocking over one bill or another because of disputes about the particular model. I am hoping that this bill will be the vehicle through which we have this debate, that it is amended according to the will of the people represented in this parliament and ultimately passed. I flag that Family First will be very receptive to amendments that members may want in order to get this bill passed, given the intent of most members to see an ICAC in South Australia.

Secondly, the time has come to stop the political games on an ICAC. The opposition states that it is its policy, but I do not see it pressing on with this through our parliament at present, although I do note that it has a bill in the other house, which I will speak about later; just as I will speak later today on an education ombudsman bill. I indicate that, if it is party policy, push it now and not before or during an election.

South Australia needs both offices now, not after 20 March next year. Conservatively, I estimate that there are approximately 28 members out of 69, or 40.5 per cent, who via their parties or as independent members have indicated their support for an ICAC—the number is growing each time a bill is debated.

If the government wants to go to an election on this that is fine. Perhaps in a promised referendum on abolishing this place it can also have a referendum on an ICAC and, while we are at it, it should have a referendum on the benefits and the disadvantages of either building the RAH on a greenfields site or remodelling the RAH on its existing site and, who knows, a host of other things, so that we do not have this nonsense of 'we have a mandate for this or that', as is often heard from the government.

Whoever wins the next election—the government or the opposition—there will be a clear indication of what the people want. I know the government, from listening to it in the past, will not want to do this, because I think it knows that those things will not go particularly well for it.

Before I turn to the fundamental differences between this and other bills, I will outline a bit of background on why Family First comes to the council today moving for an ICAC. Corruption is something that in many countries around the world has come to be accepted as a way of life. In trading in some places overseas corruption is accepted as part of the cost of doing business.

I will put members' minds at ease: I am not trying to defend corruption; I am simply putting this debate into context. I think it is foolish to think that in Australia we are immune from corruption. There is no cultural superiority or anything of the like that makes us less likely to be corrupt, nor would immigrants from other countries necessarily bring in corruption. It is, unfortunately, part of the human condition that some people will try to get ahead in the world by dishonest means.

We are naive and foolish to think that corrupt people do not sometimes find their way into even the highest offices in the land. That is partly the reason why we have seen ICACs set up, sometimes by Labor governments, in other states of Australia. Whilst we are proud of the general record in South Australia, unless there is an opportunity for an ICAC then we cannot be guaranteed that there is not corruption growing or existing in South Australia.

I refer to the politics of ICAC. This bill has significant ramifications for this state, and I cannot understand the government's hesitation in establishing an ICAC. It uses the argument that it is about cost. I will not wear that because in the Budget and Finance Committee this week we heard that the government is still prepared to spend many millions of dollars on government advertising and propaganda. The community of South Australia would rather see an ICAC than millions of dollars being spent, particularly—as has been acknowledged, I understand, from the Department of the Premier and Cabinet during questioning—if there is to be an increase in that funding in the lead-up to the election. The longer the government resists, the more questions will be raised.

There are interstate examples of ICAC that others have explained to the parliament, and I will revisit them in a moment. An ICAC has the potential to bring about a great deal of change and healing to this state if corruption in high office or organised crime has been so pervasive that it merits wide-scale prosecutions, convictions and removal from public office. We do not know if that is the case. That is the nature of things deliberately kept in the dark. Light is a great antiseptic. We must consider what corruption has been alleged in South Australia to justify creating an ICAC. This is a question one must answer with an element of guesswork, as corruption by its very nature is secretive and hidden from public view. I acknowledge that as a minor party we see people who claim that corruption is so widespread that they have lost interest in the government of the day and consider everyone else corrupt. I heard comments from a senior justice official recently, on which I will expand later, wherein he stated that he gets letters claiming that his decisions are wrong. He said that in those letters they claim he is corrupt.

I think members can sympathise with that and can go back to their offices and produce similar letters. Difficult decisions have to be made without any corruption by the judiciary, members of parliament and other people in high office. Complainants may not have any real corruption to complain of but, remember, they may have. The merit of having an ICAC is that the commissioner can hear out these people and make a determination and, if their claim is deemed frivolous or vexatious, I suspect that they will have a hard time saying that the commissioner is corrupt also.

I refer to the question of cost. Family First is always careful about putting additional costs into the Treasury budget, knowing that we have priority areas of human needs in this state. Let us consider what will be involved. There will be the salary of presiding officer and his or her assistants, which will in the case of the presiding officer have to be something comparable to his or her salary in the judiciary. Other costs include seconding administrative staff, as well as police officers and people providing witness protection, legal representation and legal aid. We know that the opposition in April 2008 said that its model of ICAC would cost about $15 million per annum and have a staff of 80 people.

In The Age newspaper of 6 April 2004—almost five years ago—Colleen Lewis wrote in her editorial that the New South Wales ICAC had a staff of 112 people and a budget of $16.5 million per annum. Queensland's Crime and Misconduct Commission had a staff of 280 and a budget of $25 million, but I note that it does some of the work SAPOL does here now, so one would expect the cost to be higher. The deputy opposition leader, Vickie Chapman, said in another place on 25 October 2007—17 months ago—that, first, the New South Wales ICAC had a staff of 110 people and a budget of $15.6 million per annum and was founded way back in 1998. She said that the Queensland CMC had a staff of 300 and a budget of $35 million and that the Western Australian ICAC had a staff of 150 and a budget of $25.5 million.

Family First's research reveals that New South Wales budgeted $17.1 million for 2006-07 and $17.9 million for 2007-08 for its ICAC. Western Australia did have a staff of approximately 153 in 2006-07and had budgeted $24.1 million for 2005-06 for its ICAC and, looking forward, it is expected that its budget will run to $28.6 million by 2010-11. So, I think the opposition's $15 million cost estimate is about the right mark.

It is worth making the point that three out of the six states—and we could be the 4th—have seen fit to incur the cost (and have done so for several years) in running an ICAC or its equivalent. I also note that there has been debate for several years in Tasmania as to whether it should have an ICAC but, to date, its Labor government has not seen fit to support one. We also have to consider the cost of not having an ICAC. That is the other side of this debate. Can this money be an investment that becomes a net benefit for South Australia? It could.

I want to speak about public support for an ICAC. I will retrace quickly the comments of some of the people in the public arena who have expressed support for an ICAC or demonstrated its merits. On 31 May 2007, a person well known to you, Mr Acting President, the retiring federal member for Port Adelaide, Mr Rod Sawford, said on FIVEaa morning radio that he believed that there was merit in all states, including South Australia, having an ICAC. That was said by a well-respected and diligent local federal member of the Labor Party.

Simon Slade, a lawyer and regular guest on Mr Leon Byner's FIVEaa morning program, said in early August that he supported the idea of an independent commission against corruption. On 16 August 2007 on the ABC 891 afternoon program the opposition leader said that he was not sure whether the Democrats bill for an ICAC was the right solution but did not offer his thoughts on what the right solution was. On 23 August—the research was put together a week later—a plan was announced with an estimated budget of $15 million.

I want to place on the public record that a former member, the Hon. Sandra Kanck, was also a strong supporter of a model of ICAC. On 23 August 2007 on FIVEaa morning radio, Peter Alexander, chair of the Police Association of South Australia—a man for whom I have huge respect and with whom I worked for several years—said:

What I think the public wants to know, they are not averse to there being an ICAC but they want to see the model being proposed.

Of course, that is what we are putting to the parliament today and, indeed, it has been tabled.

In March 2008 corruption came to the forefront of public attention with the sacking of the Wollongong City Council. The story broke, awakening the media from their post-election and Christmas break slumber, with the saucy headline of a town planner accused of having sexual relationships with developers and approving several non-conforming property developments in Wollongong in return for gifts.

Chris Berg, writing in The Australian of 5 March 2008, pointed out that Wollongong was the 8th council in New South Wales to be sacked in the past five years. Berg put forward his thoughts on why this sort of local government corruption happens in councils in New South Wales. I put this on the record as a reference to councils in New South Wales, without any sledge on South Australian councils. This is already on the New South Wales public record and it ties in with the theme of and the reasons behind South Australia's having an ICAC. The article by Chris Berg in The Australian states:

A main cause of the corruption in local government is the often cited problem of lack of transparency and accountability. Few media organisations are interested in the day-to-day goings-on of individual councils, at least until a corruption watchdog puts a councillor in front of a judge. Free from the close scrutiny that federal and state governments are subject to, councils are free to follow their whims. It is perhaps indicative that some of the earliest casualties of the subprime crisis have been local government investment portfolios.

Berg goes on to argue—and I raise it because, in the context of this debate, we are also faced with significant development reforms that this government wants to get through quickly, which is against the standard procedures—a point he was making about political donations where he says:

But, more crucially, limiting political donations to local councillors does not tackle the real problem. Local governments have too much power over questions of property development. After all, this is virtually the only reason that bribery occurs between councillors and property developers. Most of the time, local governments are doing little more than imposing petty, nanny-state regulations.

I want to put on the public record that these are his views, not mine, and I will not run through the examples he gives. He then continues:

...when they deal with the issue of property development, these councillors suddenly hold vast levels of discretionary power, able to approve or reject multi-million dollar investments with the stroke of a pen.

I include that point to again illustrate the potential for corruption. I cast no aspersions on particular councils or the LGA here, for whom I have the greatest respect. I even have a family member working in local government. I am simply using examples from another state which have nothing to do with South Australia.

We certainly have not had eight councils sacked in five years. I simply point out that in New South Wales, in the area that Berg was referring to in his article, the potential existed and, in the Wollongong case, it manifested into corruption. On the whole, I find my dealings with local government very satisfactory. I have confidence in the people who give their time for little financial reward in the interests of their own local community in our state.

I do hope that a commissioner is able to wisely sift between trivial and vexatious claims about councillors and those that are—like those in Wollongong—substantial claims of corruption. The main emphasis, though, I believe would be the links between abuse of public office and organised crime, be it bikies, transnational crime gangs or paedophile networks. My main focus is not aimed at local government at all. Obviously, local government, like state parliament and the state government, would be subject to ICAC legislation if, indeed, it is passed by the South Australian parliament.

I add, in conclusion, the public comments I could find in support of an ICAC. On 15 September 2008 the very well experienced and highly respected professor of politics at Flinders University (Dr Dean Jaensch) indicated that he has supported an ICAC for years. It is hard to ignore a growing chorus from a range of areas supporting this concept. For Family First the fundamental points in the debate about whether we have an ICAC are these: the government argues we have enough anti-corruption measures, with the Anti-Corruption Branch of SA Police, an ombudsman and the like. Put simply, I do not believe that is a compelling argument. The functions of the Anti-Corruption Branch can be complemented or subsumed by an ICAC. For instance, the Queensland Crime and Misconduct Commission website states:

The Queensland Police Service and the CMC work together to fight major crime, protect witnesses, and strengthen integrity within the police service. This partnership began at the time of the Fitzgerald Inquiry.

So there could be some economies of scale and so on out of that model. Some other states have an ICAC. New South Wales created an ICAC act in 1988. The Queensland Crime and Misconduct Commission was formed on 1 January 2002 as a merger of their Criminal Justice Commission and the Queensland Crime Commission. The CJC, of course, had been formed as a consequence of the 1987-89 Fitzgerald Inquiry, and the QCC had been formed in 1997 to investigate paedophilia. The Western Australian Corruption and Crime Commission was established on 1 January 2004. It is also interesting to note that Hong Kong has had an ICAC since 1974.

I place on record my view that there would be merit in considering a network of ICACs across all states. We are, perhaps, naive to assume that corruption does not spread across borders–certainly organised crime does—and over international borders, too. Victoria, for instance, does not have an ICAC and it would be a step in the right direction for South Australia to add its name to the list of jurisdictions with an ICAC to put pressure on the states that do not. In any case, I am sure that liaison and information sharing can occur between equivalent anti-corruption measures in all states, be they ICACs or not, to combat trans-border crime and corruption.

I now come to the fundamental differences that this bill has against other models. Difference No. 1 is: other commissioners as potential commissioners here. The Family First bill expands in clause 10 who might be a potential commissioner. All models proposed so far say that the commissioner would be a retired judge or a judge who retires specifically to take up the role of commissioner. That is one desirable avenue. This judge would then assume very significant powers.

Further, I think we have struck the right balance here where these powers do not include the power to proceed from investigator to prosecutor, judge, jury and executioner. The significant power of the ICAC is that it must communicate to the appropriate authorities the results of its investigations. That, one would assume, would lead to charges being laid. This bill includes measures to ensure that we know if law enforcement agencies are listening to the communication the ICAC gives them about possible investigations, and allowing parliament to investigate why that is so.

I was privileged to attend (along with MPs from several parties) a presentation of the Lawyers Christian Fellowship, where the Chief Justice of the Supreme Court shared his thoughts on faith, fidelity and impartiality in judicial office. It was a candid and excellent presentation, revealing something of the upbringing and experiences of the Chief Justice. I congratulate the Christian lawyers for holding that event. What impressed me was the Chief Justice's dogged commitment to impartiality, the cold forensic examination of the facts and judgment on the facts, putting aside one's own bias or beliefs. I mention this because I believe that judges like the Chief Justice would, in my opinion, be an ideal candidate for South Australia's first independent commissioner against corruption.

Aside from judges, we have added the potential for a commissioner from another jurisdiction to also be a candidate for our commissioner. I think the appointment of Stephen Pallaras QC from Western Australia to be our Director of Public Prosecutions was an innovative move. This difference in Family First's bill ought to be supported by the government and the opposition—that is, if the government still stands by its reasons for appointing Mr Pallaras as an Eliot Ness. I congratulate Mr Pallaras on the good work he is doing with his team.

Whilst a judge can come to office with a familiarity with the South Australian community, I believe that a good commissioner can quickly and easily familiarise himself or herself with the community and its issues. As an example, I highlight our Police Commissioner, Mal Hyde, who did all his policing in Victoria until being appointed here. He is arguably—in fact, in my opinion, without doubt—the best, as well as the most experienced, police commissioner now serving in Australia. He has done a fantastic job for South Australia.

Of course, they may lack some in-community familiarity, but they would make up for that by having ICAC experience that the judiciary does not have. So, Family First believes it is sensible for such a person to be in the mix for potential commissioner.

The second difference to the bill in another place is the oversight committee. One strong criticism that Family First had of the Hon. Sandra Kanck's previous ICAC model was the structure of the Democrats' proposed oversight committee. In Family First's opinion, it was too limiting. The parliament best represents the make-up of our community and it is best placed to inform itself of community views. To that end, Family First preferred the opposition's model to the Democrats' model, but in clause 88 has changed the make-up of the parliamentary oversight committee. We believe it is best that the Legislative Council, as an independent watchdog in this state, has stronger representation on the committee than the House of Assembly. Hence, our model is for four Legislative Councillors and three members from the other place on the oversight committee.

One compelling argument for this make-up is that the Legislative Council, to the frustration of governments of various persuasions, is rarely controlled by one party. That is its strength as a watchdog, the reason it must not be abolished, and I believe that South Australians vote for a Legislative Council for precisely that reason. So, the strength needs to be in Legislative Councillor oversight and not with members of the other place dominating this committee.

To illustrate the need for a bold, watchdog-style oversight committee I refer to an article published in The Australian of Friday 31 May last year. It was headed, 'CCC claims win over QC.' In it, Amanda O'Brien, a Western Australian political reporter, explained:

Western Australia's powerful Corruption and Crime Commission has had a significant win in its damaging feud with its parliamentary overseer, Malcolm McCusker QC, over his repeated rejection and criticism of its misconduct findings. The bitter war has undermined the CCC's ongoing investigations into the influence of disgraced former premier Brian Burke over a string of politicians and bureaucrats after Mr McCusker suggested that its work was flawed.

I will not read the rest of this article, but I think the article and the situation in Western Australia both demonstrate the merit of a robust, independent, seven-member oversight committee rather than one individual charged with oversight (as is the case in Western Australia).

The third difference is in who can refer investigations to the commissioner. A subtle but important variation is in clause 7, and it follows the point I have been making about an independent, watchdog Legislative Council. If it falls to both houses of parliament to refer matters to the commissioner, again, on party lines the government could block any investigation. Allowing either house to refer complaints to the commission empowers a watchdog upper house to refer such investigations. Whilst the commissioner is under a stronger compulsion to investigate matters referred to him or her from the parliament, ultimately the commissioner can, with sound reasons, decline to investigate a referred matter. I am confident that this fundamental change to the models proposed by others will be a change that is used wisely and cautiously by either chamber of this parliament.

The fourth and final difference to the opposition's bill in another place relates to self-incrimination. I am almost finished, but it is important that I explain this one to my colleagues. Clause 51 of the Family First bill creates a fundamental difference aimed at making sure that the commission is not stymied by legal tricks and legal principles that are, in our view, designed to protect the guilty and not the innocent. Hence, our clause on self-incrimination does not allow a witness to refuse to give evidence on the basis that it might be incriminating; the person concerned must give that evidence. However, that evidence cannot be used against them in proceedings on the incriminating conduct in question. It is fundamentally important that the commissioner can get to the bottom of corruption, and I believe that this change to the criminal law is necessary in this circumstance as otherwise corruption investigations might be stopped dead in their tracks time and time again on self-incrimination grounds.

I conclude by flagging that Family First may itself make amendments as it discusses this bill with interest groups, and it would certainly look favourably on other members in this place putting amendments on any front they wish. Family First has an open mind to amendments; it is the importance of the ICAC that we are so strong on getting into South Australian legislation. I encourage comment from colleagues in a couple of areas in particular: whether the mandatory reporting requirements are strong enough; and whether penalties for offences such as impersonating an ICAC officer are severe enough. On that second point, I believe the Wollongong council matter involved allegations of someone impersonating an ICAC officer, so those provisions could well be strengthened.

In moving this bill now, we can get the debate going again in South Australia. As I have said, we will consider amendments from other honourable members and vote on all those. This is an opportunity for an ICAC bill that is very similar to the model proposed by the opposition in another place to be passed in this house and then, prior to the next election, for the challenge to be taken up to the government to support an ICAC. If this bill passes in the Legislative Council and does get into the other house, and the government then refuses to support it there, it will be the government, and only the government, that will have to explain to the South Australian community why there is no bipartisanship in the passing of ICAC legislation that will ensure the integrity, security and well-being of the future of South Australia.

Debate adjourned on motion of Hon. J.M. Gazzola.

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