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Legislative Council - Fifty-First Parliament, Third Session (51-3)
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INDEPENDENT COMMISSION AGAINST CORRUPTION BILL

Committee Stage

In committee.

Clause 1.

The Hon. B.V. FINNIGAN: I have a general question about the proposal to have an ICAC. Can the mover advise the committee what he expects the annual cost to government of his proposed commission to be and what staff complement he expects it to have?

The Hon. R.L. BROKENSHIRE: If the government wanted to give me its department for about an hour, I reckon I could get pretty close to it within a few dollars. Can I say in responding to the honourable member that it is probably worthwhile refreshing members' memories of who is pushing for an ICAC at the moment: the former auditor-general, Ken MacPherson; Senator Nick Xenophon; the Law Society of South Australia; the South Australian Bar Association; the Australian Lawyers Alliance; the Local Government Association; the South Australian Police Association, I understand; and today, interestingly enough—by coincidence, of course—the Director of Public Prosecutions, Stephen Pallaras. In fact, in media today, the DPP said that it is slow in coming to this state but it will come.

One other group that wants this is the taxpayers of South Australia. In fact, the strongest support for an ICAC at the moment on polling is the South Australian public. In answer to the honourable member's question, the South Australian public, who are responsible for paying the tax base to this government and this parliament, strongly support an ICAC. I point out, too, that, when it comes to this particular model, it is not as complicated as some ICACs in other states. For example, the education role and some of the investigative roles are not as high for this ICAC, unlike in some other states, so it will be cheaper.

In ballpark figures, I acknowledge that it may cost $14 million or $15 million a year, but I ask: what cost is that to keep the state as squeaky clean as possible? In finalising my answer to the honourable member, I can suggest ways that you can easily find the $14 million. You can remove two ministers from cabinet—that will save about $5 million; and you can stop excessive spending on public-funded advertising to the tune of at least another $5 million or $6 million. With just a few efficiency dividends around the place, you could easily find the funding. The government seems to be able to find it for tramlines and other things—

The Hon. R.D. Lawson: And for a referendum.

The Hon. R.L. BROKENSHIRE: And for a referendum. I am sure the money is available. It is about priorities, and we will see whether or not the government has this as a priority.

The Hon. B.V. FINNIGAN: With respect to the Hon. Mr Brokenshire, he is proposing to effectively revolutionise the system of oversight of government, and others, in this state, and he is advising that he thinks it would cost $14 million or $15 million. He did not address the issue of how many staff he expects it would have. I ask him to address that and, also, how he arrives at the figure of $14 million or $15 million.

The Hon. R.L. BROKENSHIRE: The figure has been arrived at by looking at the costs in other states and comparing them with the framework of this bill. I put to the honourable member that in the years I have been in the parliament I have rarely had clear and definitive costings put to me when government bills are introduced. In fact, on the odd occasion when I have had a costing put forward we have seen absolute budget blowouts. The real costs by not having this is the risk of deterioration of the state's best interests in ensuring that we keep this state as squeaky clean as possible.

The Hon. B.V. FINNIGAN: Could the mover advise what states he looked at when he says he compared it with other states?

The Hon. R.L. BROKENSHIRE: Of course, there are only two states that do not have an ICAC at the moment. One has made a public commitment to an ICAC and is in the process of formulating that, and then there is our state. So, when looking at other models, we looked at every other state that has an ICAC. I remind the honourable member that the Tasmanian Labor government is in the process of putting forward one at the moment with a much smaller global budget than this state government has, and a much smaller GST gold river flow than this state government has, yet it has seen the importance of an ICAC.

The Hon. B.V. FINNIGAN: I remind the honourable member that two states do not have an ICAC, and neither does the commonwealth, which had a Liberal government for 11 years and certainly did not see the need to introduce this initiative.

I am curious as to the answer he has just given in relation to having looked at all other states. There are three states that have bodies of this nature. New South Wales has the Independent Commission Against Corruption. From its annual report 2007-08 I can advise the committee that they had 116.1 equivalent full-time staff and the cost to government in 2007-08 was $17.595 million. Can I move to Queensland, which has the Crime and Misconduct Commission—

Members interjecting:

The CHAIRMAN: Order! I am very interested in what the Hon. Mr Finnigan has to say.

The Hon. B.V. FINNIGAN: Mr Chairman, if honourable members opposite think this is a joke, why do they not just vote against it and go home? Here they are saying we should introduce the biggest change ever and have an ICAC with hundreds of staff and costing millions of dollars chasing after government, local government, all public authorities and statutory officers, and they seem to think it is some sort of a laugh. I find it rather extraordinary.

Looking at Queensland, which has a population less than New South Wales, although bigger than ours, the Queensland government grant in 2007-08 was $36.688 million. The staff establishment as at 30 June 2008 was 317 and the actual staff was 305.3 in full-time equivalents. I turn then to Western Australia, which has the Corruption and Crime Commission. I think that members would agree that Western Australia is about our size in terms of population—

An honourable member interjecting:

The Hon. B.V. FINNIGAN: This is not a speech: this is a question to the mover. The mover indicated that he had looked at other states. I, too, have looked at other states, and I am asking him how he explains these figures in relation to the statement he made.

An honourable member interjecting:

The CHAIRMAN: Order!

The Hon. B.V. FINNIGAN: In the case of Western Australia—which has a population, economic base and system of government very similar to our own—the government appropriation to the Corruption and Crime Commission in 2008-09 was $25.55 million, and as at 30 June this year it had 159 full-time equivalent positions with an average staffing level in the reporting period (that is, the last financial year) of 161.2.

Given that the cheapest of those three ICACs or equivalents is New South Wales with $17.6 million and that Queensland is almost $36.7 million with over 300 staff and Western Australia is about $25.5 million and 161 staff, I wonder whether the honourable member could justify how he arrives at the figure of $14 million or $15 million.

The Hon. R.L. BROKENSHIRE: I justify it based on the fact that, as I said, this model is slimmer in some of its requirements than some of the other states. In response, I say to the honourable member that when the parliament was asked to vote on a SAFECOM bill we were not given any information about how many staff would be employed, how much it would cost and what increase in staff they would promote and advertise. I would be confident that, if this bill got through and the government wanted a hand to look at specific costings and numbers of people who needed to be employed in an ICAC, there would be bipartisan support for a committee from this chamber to help the government in that regard.

The bottom line is that, yes, there will be a cost to this and, yes, there will be staff. If you want to make some further savings, you could reduce the spin doctor centre, because that just grows like a mushroom and so do their salaries. There are opportunities for saving money but, at the end of the day, I thought we were here to listen to the community; and the community and a lot of the expertise in the leadership ranks of the community are saying, 'We need an ICAC. The bill is here. You have got a $15 billion budget. You can find $14 million or $15 million approximately to fund this if you have the will.'

The Hon. R.D. LAWSON: I am surprised that the Hon. Bernard Finnigan would be arguing this case for the government because tonight he has firmly contradicted the Attorney-General on this important issue. The Hon. Mr Finnigan described this proposal as the 'biggest change yet'. On the other hand, the Attorney-General is saying that this represents no change at all because we already have—

The CHAIRMAN: Order! The Hon. Mr Hunter has a point of order.

The Hon. I.K. HUNTER: I fail to hear any question to the mover of the bill from the Hon. Mr Lawson. I would be very keen if he was to move to his question.

The CHAIRMAN: Order! The Hon. Mr Lawson would have a question.

Members interjecting:

The CHAIRMAN: Order! The Hon. Mr Finnigan had to explain the costings of other states because the mover failed to do so.

The Hon. R.D. LAWSON: The honourable member did describe this proposal as the 'biggest change yet'. I think that the committee would want to hear from the Hon. Mr Finnigan in what way this is the biggest change yet, given that the Attorney-General says that it is no change at all because we already have these facilities in place—the Auditor-General, the Police Complaints Authority, etc. There is clearly a contradiction. I ask the honourable member to explain it in the context of the cost of this proposal.

The CHAIRMAN: Order! I will allow the Hon. Mr Finnigan to do so because it seems that the mover does not have those figures.

The Hon. I.K. HUNTER: I would like to ask a question of the mover, Mr Brokenshire. How can the mover of this bill be so confident that the ICAC he proposes would not devolve into nothing more than a police witch-hunt?

The Hon. R.L. BROKENSHIRE: As we move through the bill, clause by clause, there are some specific answers there, but the bill has checks and balances to ensure that it will not become a police witch-hunt. I am confident of that within the bill and, in fact, in the debate that I have listened to in the media with the Attorney-General, whilst he has advocated on behalf of the government that it did not see the need for an ICAC, he has never indicated that he thought that it would formalise an opportunity for the police to have a witch-hunt.

The Hon. I.K. HUNTER: I ask again of the mover: can he be strictly confident that perhaps the ICAC he proposes would not go off investigating a former Liberal government minister who, for example, employed public servants on his staff on 30-day contracts—I think only 30 days out from election—to go out canvassing, electioneering and doorknocking for the minister? Is he confident that that situation would not be pursued as a witch-hunt?

The Hon. R.L. BROKENSHIRE: Yes, I am as confident of that as I am that it would not involve the situation with the Treasurer's staff during the federal election with the candidate for Boothby.

The Hon. B.V. FINNIGAN: I begin by drawing the attention of honourable members in the chamber to the fact that I am not the mover of this bill. It is not my proposition. I am being asked, as a legislator of the state, to vote for this bill to put in place a new structure (presumably at great expense) and I am asking questions of the mover as to what he thinks that will cost and how he arrived at that figure.

For some reason, the members of the opposition automatically assume that members of the government are not entitled to ask questions of private members moving bills. Every time that I have asked questions of a private member moving a piece of legislation, there is this extraordinary outrage from members of the opposition as if, because I am a member of the government, I am not entitled as a member of this chamber to question the person who is moving legislation on the legislation he is proposing.

I am at a loss to understand why they are getting so hot under the collar. What I have asked are questions in relation to the proposition before us. Again, it is simply not good enough to say, 'Well, you are the government; you sort it out.' That is hardly the approach that is taken. When the government comes forward with legislation of course it analyses what the cost impact is going to be. I do not think anyone expects that the government just passes legislation and, afterwards, says, 'I wonder how we will pay for that?' It does have to be paid for and there are decisions to be made about the budget.

There are priority decisions to be made and anyone proposing to initiate a large expenditure of public money, in my view, must explain how they are going to fund it. Where are they going to get the money? To use these sort of flip responses such as, 'We are going to stop government acts' and these little offhand comments such as, 'We can stop this; we can stop that and we could turn this leaflet from colour to black and white and that will save a few dollars'—that is a very unsatisfactory way of trying to debate the question. The reality is that you need to identify what the proposal—

The Hon. J.S.L. Dawkins interjecting:

The Hon. B.V. FINNIGAN: I am asking the honourable mover to indicate what the proposal would cost and where the funds would come from. What programs would he cut? What schools would he close? What hospitals beds would he shut down? What taxes would he raise? How does he propose to pay for this?

The Hon. R.L. BROKENSHIRE: As I said, as best we are in a position to cost it, we estimate it will be about $14 million. It is a smaller model than the New South Wales model which the honourable member himself has indicated is a $17 million model. If I can just put to the honourable member that in the Department of the Premier and Cabinet (which has grown like a mushroom in the past eight years) a 1 per cent efficiency dividend there, a cut in public taxpayer-funded political advertising, and a reduction in the spin doctor media unit will more than pay for this.

Frankly, as far as I am concerned, the community needs this more than they need 64 spin doctors in the Premier's office and the burgeoning Public Service that the Department of the Premier and Cabinet has. A little bit of slimming and trimming there will easily pay for this.

The Hon. I.K. HUNTER: In my contribution to this clause 1 debate, I am interested in teasing out the scope of the body that is proposed by the mover of this bill. I am grateful for his previous answer. I will quote very briefly from a historical news report entitled 'Former SA minister accuses police of witch-hunt'. It states:

Former South Australian emergency services minister, Mr Robert Brokenshire, has described a police investigation into his use of public servants as a political witch-hunt.

I am grateful for his confidence that such a body that he is proposing would have a look at those sorts of issues with alacrity. Perhaps the mover of the bill could assure us, in terms of the cost of the organisation—and he just gave us some examples of how it might be funded. Can he give us some advice on whether, in fact, a minister could divert $170,000 in sponsorship money connected with the rescue helicopter sponsored by the Adelaide Bank? Would that be an appropriate avenue of funding an ICAC and taking money away from the current spending? Perhaps he would like to comment on that.

The Hon. R.L. BROKENSHIRE: I will comment on both of those. First and foremost, I have much more confidence in the police not going after witch-hunts than I have in governments going after political witch-hunts in marginal seats. It is a totally different situation between political witch-hunts and so-called allegations of police witch-hunts. With respect to an allegation of $170,000 being appropriated in one manner, the history is there, and I know the facts and figures on that, just the same as I also know that the government of the day was happy to throw $300,000 or $400,000 at a situation like that just to try to make it difficult in a marginal seat. This is not about political marginal seat difficulties: this is about an independent commission against corruption.

The Hon. R.D. LAWSON: I have a question of the Hon. Mr Finnigan, given the comments that—

The CHAIRMAN: It is not the Hon. Mr Finnigan's bill.

The Hon. R.D. LAWSON: This is the committee stage of the bill, and I am entitled to make comments and ask questions.

The CHAIRMAN: The Hon. Mr Finnigan is within his rights not to give you an answer, I suppose.

The Hon. R.D. LAWSON: He would be wise not to, but I will pose the question.

Members interjecting:

The CHAIRMAN: I suppose the Hon. Mr Finnigan is the only one answering the question.

The Hon. R.D. LAWSON: As the Hon. Mr Brokenshire mentioned, today the Director of Public Prosecutions tabled his annual report, which contains the following comment, which I think should be before the committee at this juncture in the debate on this bill.

The Hon. R.I. Lucas: Is this the bloke who's Elliot Ness?

The Hon. R.D. LAWSON: Yes; this is the Elliot Ness, appointed by the Rann government—

The Hon. R.I. Lucas: To take on the baddies?

The Hon. R.D. LAWSON: Yes, to take on the baddies, but subsequently undermined by the government. He said:

An anticorruption authority with full law enforcement powers of both the public and private sector is the best tool yet devised to educate the community on issues relating to corruption, to effectively minimise the incidence of corruption by taking proactive preventative measures and to prosecute through a prosecuting office, like the Office of the DPP, those who engage in corrupt practices. It is slow in coming to this state but it will come.

I wonder whether the Hon. Mr Finnigan, as, apparently, one of the government's spokespersons on this bill at the committee stage, would comment on whether he agrees with the observations that the Director of Public Prosecutions made today.

The Hon. B.V. FINNIGAN: It is interesting that the Hon. Mr Lawson should mention education as part of the role of the commission. The honourable mover did indicate that this ICAC proposal would be cheaper because it would not have to deal with education. Of course, clause 7 is all about the proposed ICAC playing a big role in education advice relating to the avoidance of corruption, but we will get to that when we discuss clause 7. As I said at the outset, I am not the mover of this bill and, while I am happy to see that the Hon. Mr Lawson has great confidence in me, last time I checked I was not the first law officer of the state.

The Hon. P. HOLLOWAY: I could not help but notice with interest the question asked—and it was a question rather than a statement; it should have been a statement—by the Hon. Robert Lawson quoting the Director of Public Prosecutions. If I heard correctly, I believe he talked about the private sector as well. Given that the DPP suggests the ICAC should be looking at not just the public sector, which I guess we will cover when we come to the object of the act in clause 3, and given that it is the private sector, perhaps Mr Lawson could tell us whether he believes that that should also be under the purview of the private sector.

The Hon. R.I. Lucas: You tell us what you want.

The Hon. P. HOLLOWAY: It is not my bill. Mr. Lawson is asking the question, and he was the one endorsing the Director of Public Prosecution's view that it should include the private sector as well. I am just asking whether that is his view. Since he believes that the Director of Public Prosecutions should be believed, does he agree with the Director of Public Prosecution's view?

The Hon. R.D. LAWSON: My position on this bill is with my Liberal colleagues. We support the bill proposed by the Hon. Mr Brokenshire. It is, in fact, largely in the same terms as that proposed by the Liberal Party and introduced earlier in the House of Assembly, but the government there is disinclined to debate it. I support this bill, which is actually directed at public sector corruption.

The CHAIRMAN: So you disagree with the DPP.

The Hon. R.D. LAWSON: No, I—

The Hon. B.V. Finnigan: So you are moving amendments to take the private sector out?

The Hon. R.D. LAWSON: No, but I invite you to if you agree with the Director of Public Prosecutions. Our position is that this bill covers public sector corruption entirely appropriately. We are not called upon today to decide on the DPP's views on a special body to examine private sector corruption—perhaps one day we will be. But we have been arguing consistently for months that it is appropriate to have a public sector corruption commission of the type which has been established successfully in other jurisdictions.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. P. HOLLOWAY: Under the objects of the act as they are proposed again, this specifically refers to the integrity and accountability of the public administration. We have just seen in the past week that the independent commissioner in Western Australia has made publicly what I think would be interpreted as some implied criticisms of the newly elected Western Australian Liberal government, which is seeking to change the focus of its independent commission on corruption away from the public sector, it would appear, if the press reports are correct, towards organised crime—in other words, the private sector.

Given that, clearly, changes appear to be proposed in Western Australia, and given the criticisms of the independent commission in Queensland and its new focus, my questions to the mover really are: why would we specifically limit the objectives of this act to the public sector and, given what has happened in Western Australia, does the mover of the bill believe that a future Liberal government here—if an organisation like this were established—would simply move to shift its focus away from the public sector (in other words, government) towards the private sector as well?

The Hon. R.D. LAWSON: Whilst we are on clause 3 of the bill, I remind the minister that, where this commission is given power to investigate, expose and prevent corruption involving or affecting public authorities and public officers, it clearly has the capacity to examine private sector corruption, because very often, as we know, not only in this state but elsewhere, there is interaction between the private sector and the public sector, and very often corruption in the public sector is as a result of activities of persons in both the public and the private sector.

The Hon. R.I. Lucas: Developer donations.

The Hon. R.D. LAWSON: Yes, developer donations.

The Hon. R.I. Lucas: Developer donations would be something that you would be familiar with.

The Hon. P. HOLLOWAY: Why is Premier Barnett changing the focus then? The question is: has the Western Australian commission been unsuccessful? The question is: why is the Western Australian Liberal government changing the focus of its independent commission?

The Hon. R.I. Lucas: Go and ask them.

The Hon. P. HOLLOWAY: Well, if the bill is being put forward, I would suggest one reason is that the thing has not really worked. It has cost an arm and a leg and has not really come up with the sort of—

An honourable member interjecting:

The Hon. P. HOLLOWAY: That was a long time ago. The question is: what has it done in recent days to justify 30 or 40 years of woe?

The Hon. R.I. Lucas interjecting:

The Hon. P. HOLLOWAY: I am glad to have that interjection because it really shows why the Liberal Party wants this. It wants it as a political tool rather than genuinely dealing with any issues. Bearing in mind that their Liberal colleagues in Western Australia have seen the need to change that, I ask Liberal Party members opposite whether they agree with Premier Barnett's change in emphasis of this committee and, if so, why?

The Hon. R.I. Lucas: You are a bit flustered there, Paul, a bit flustered.

The Hon. P. HOLLOWAY: No, not at all. I think you cannot answer the question, Robert; I think that is the real issue.

The CHAIRMAN: Order!

Clause passed.

Clause 4 passed.

Clause 5.

The Hon. B.V. FINNIGAN: Clause 5 deals with the meaning of corruption, and subclause (2)(a)(iii) identifies or defines 'corrupt conduct' as 'conduct of a public officer or former public officer that constitutes or involves a breach of public trust'. Can the honourable mover indicate what he understands is meant by the words 'breach of public trust'?

The Hon. R.L. BROKENSHIRE: My understanding of 'breach of trust' is that it is a concept well defined by the courts, and we have seen it, for instance, in the context of sexual offences with doctors, teachers, parents and caregivers. There is little ambiguity of what a breach of trust is.

The Hon. I.K. HUNTER: On that matter of the definition of 'breach of public trust' can I perhaps put it a little more concretely for the mover of the bill. For example, would a situation where a minister publicly receiving money by way of sponsorship for a stated purpose that had been the subject of a government advertisement in the knowledge that the money was already committed to be used for another different purpose—in his electorate, I might add—be a breach of public trust?

The Hon. R.L. BROKENSHIRE: Indeed, there would be plenty of examples of where the question could be put to ministers, but in the example put by the Hon. Mr Hunter the answer is, no, it would not be, and if you have a look at the specifics behind it you will see clearly why.

The Hon. I.K. HUNTER: So, just to make it clear, a situation where a minister diverted money from the public purse that was to be used for a particular purpose to meet the ongoing payments of an ambulance station in his electorate would not be a breach of public trust under his definition?

The Hon. R.L. BROKENSHIRE: I am very happy to answer that, and I do not want to hold the committee up for too long tonight but, for the public record, the fact of the matter is that it was all done through the department. I do not know about this Labor government's ministers, but I know that when I was a minister I did not negotiate in terms of whether the cheque was paid into one section of a department or direct to an agency, because I was not dealing with the cheques. So, I hope that this government is not directly dealing with the cheques, although one would wonder sometimes whether or not they were.

At this point in time I also put on the public record that the constituents of Mawson still to this day are shaking their head at the fact that for nearly three years this government was prepared to leave the lives of the tourists and the people of that community at risk for political base point-scoring and, to this day, they condemn this government for the political game it has played.

The CHAIRMAN: I think the Hon. Mr Hunter is still seeking an answer to the original question.

The Hon. I.K. HUNTER: I do not have a satisfactory answer to my question, so let me be more explicit. On 6 August 2001, a formal ceremony for handing over the sponsorship cheque was held at the Adelaide Airport attended by the then minister (the Hon. Mr Brokenshire), the managing director of the Adelaide Bank and others. The managing director of the Adelaide Bank was the person handing over the sponsorship cheque. It was not known to him at that time that the money he was handing over for one purpose (the rescue helicopter) had been authorised on the previous day to be handed over to the Ambulance Service to pay for ongoing recurrent funding which the minister did not provide out of his own budget. Would that be a breach of public trust? Yes or no?

The Hon. R.L. BROKENSHIRE: No.

Members interjecting:

The CHAIRMAN: Order! I think the ICAC would work out whether that was yes or no.

The Hon. B.V. FINNIGAN: If I may come back to the question of the definition of breach of public trust, the honourable member—

Members interjecting:

The CHAIRMAN: Order!

The Hon. B.V. FINNIGAN: The honourable mover of this bill seems to indicate that—

The Hon. R.I. Lucas interjecting:

The CHAIRMAN: Order, the Hon. Mr Lucas! If you do not have anything to contribute to the bank, you might want to go up to your office.

The Hon. B.V. FINNIGAN: If I could return to this question of the definition of breach of public trust, the honourable mover has indicated that he would not see misappropriation of funds as a breach of public trust but I think he indicated doctors, teachers and others and that it was well understood what a breach of public trust was. Most teachers are employees of the state. Is monitoring the activities of teachers and doctors the sort of role that the honourable mover anticipates will be the role of his commission?

The Hon. R.L. BROKENSHIRE: To put on the public record, what the honourable member said just then I did not say whatsoever; I want that corrected for the public record. I am very happy, if my colleagues are happy, for government members to play a game and stand up here and attack me for the next three to five hours. I am very happy for that to occur; I had a good sleep last night. But at the end of the day, there will be a vote on the importance of this bill and we will play the games that they want, but I tell you that there are plenty of games we can attack them back on if that is what they want.

The Hon. B.V. FINNIGAN: I can assure the honourable member that I am not playing any games: I am asking questions about legislation that is before this committee. Honourable ministers are constantly asked questions in the committee stage of bills about government bills, so I do not see why it should be considered incongruous that government members may elect to do that on a private member's bill. I am still wondering what the honourable mover anticipates is going to be understood as a breach of public trust. Does that mean that a public servant took a long lunch? Does it mean that they took a bag full of cash? What sort of thing does he understand is meant by that term?

The Hon. R.L. BROKENSHIRE: Like me, the Hon. Bernie Finnigan is not a lawyer. He may like to ask the Attorney-General, the Hon. Michael Atkinson, what he sees as the legal definition of a breach of public trust. The advice given to us when we analysed this was, and I repeat: a breach of trust is a concept that is very well defined by courts throughout Australia and internationally and, as I said, it has been used in the context of sexual offences with doctors. If you want an example, if a patient goes in to see the doctor and the doctor rapes that patient, that is well and truly a breach of public trust.

The Hon. B.V. FINNIGAN: That has not quite addressed the question. Does that mean he thinks that the activities of doctors and teachers are indeed to be the focus of the commission? I would point out that, in the example that he has used, the person would have committed a criminal offence and, if there were sufficient evidence, I am almost certain that the Director of Public Prosecutions would prosecute a charge relating to an offence under the Criminal Law (Consolidation) Act.

The Hon. I.K. HUNTER: This discussion has actually been quite useful to me in firming up my view about an ICAC. I move on from the issue of ministers and members of the government and come to an area of concern with respect to members of this chamber. In terms of the definition of 'breach of public trust', would it be, in the mover's opinion, the case that a group of people in the electorate in an organisation perhaps such as Survivors of State Care, who believed that they had an agreement with an honourable member such as the Hon. Mr Brokenshire, who perhaps believed they could trust the Hon. Mr Brokenshire's word and who then believed that that trust had been breached, would have grounds to go to an ICAC to investigate their views about a breach of public trust?

The Hon. R.L. BROKENSHIRE: I am intrigued by the questions from the members but the answer would be no, on the basis that, when a member puts up a bill, the member can only put up a bill and then the democracy of the parliament makes a decision on whether they want to support that bill or amendment, so that gets back to the decisions of the parliament.

The Hon. I.K. HUNTER: So, again, when it comes to the Hon. Mr Brokenshire breaching public trust, ICAC will not investigate him but any of us might be fair game.

Clause passed.

Clause 6.

The Hon. P. HOLLOWAY: This clause provides that the commission is to consist of the commissioner and assistant commissioners. We saw some publicity earlier in relation to members of the Liberal Party that they had apparently been out touting for commissioners to try to find people who could fit the bill, pre-empting of course not only the passage of this bill but also the next election. I thought it was rather intriguing that they should already be out looking for particular candidates, and some publicity was given by the Leader of the Opposition, although I am not sure whether she was the Leader of the Opposition at the time.

I just wonder whether the honourable member moving the bill has also been out looking for suitable candidates or who he would suggest and what the qualifications might be. I think we understand what members opposite believe what the criteria might be, but I would be interested to hear whether the mover agrees with the criteria of members opposite.

The Hon. R.L. BROKENSHIRE: I have not been out looking for commissioners or assistant commissioners. My response here is that common sense will dictate that you do need assistant commissioners when formalising an ICAC. The ICAC need not take up the opportunity for assistant commissioners if it feels that it does not need them, but the provision is there so that, if an assistant commissioner is needed, that is well and good.

In answering the question of this honourable minister, who is one of the ministers that I see as being more honourable than some ministers in this government, I see that he is being pushed aside which is a pity because I think he should remain if they win government but, if he is pushed aside, maybe he may have the capacity to do that job.

Clause passed.

Clause 7.

The Hon. B.V. FINNIGAN: The honourable mover indicated early on in his contribution that our ICAC would cost less than other states because it would not have an education function. I draw members' attention to subclause (1) and paragraphs (e) to (l), which indicate that the roles of the commissioner will include examining laws, instructing, advising and assisting authorities on ways in which corruption may be eliminated; educating, advising and disseminating information; enlisting and fostering public support; and developing, arranging, supervising, participating in or conducting educational or advisory programs, as may be required by resolution of either chamber of parliament. Will the honourable mover advise what proportion of the ICAC's work he would anticipate would be taken up with these functions, given that he earlier indicated that it was not to be part of its function at all?

The Hon. R.L. BROKENSHIRE: I do not believe I indicated it would not be its role at all but, to clarify what I believe I said, I will put it on the public record. The educative and investigative roles are not as intense and expansive as they are with some of the other bills. If the honourable member would like to look at my second reading contribution on this, I put quite a bit of time into costings and comparisons based on other state models, including what he read out from annual reports of other ICACs and including what the opposition put on the public record in another place. I invite him to go back and look at that, as quite a bit was done there. Time and again, with bill after bill that comes through this place, we do not know the regulations, the costings or the staff numbers, and neither does the government when it puts forward bills.

The Hon. R.D. LAWSON: The Hon. Bernie Finnigan is suggesting that the Hon. Mr Brokenshire has been downplaying the educative role of the commission. I do not understand that to be his position at all. From the Liberal opposition's point of view, we believe the educative role of an anti-corruption commission, especially in South Australia and especially with this government, frankly, is a very important one and one which will occupy a good deal of the attention of the anti-corruption commission. I do not understand the Hon. Mr Brokenshire to be saying that it is not an important function, but we regard it as one of the significant elements and functions of this commission.

The Hon. B.V. FINNIGAN: Again, the honourable member has indicated that he looked at other states' costings, which strikes me as rather odd when you have $17.5 million, $36.5 million and $25.5 million, and somehow out of that you get $14 million or $15 million. The record will show that the mover did indicate in his contribution on clause 1 that one of the reasons he expected that this ICAC proposal would be cheaper than other states was that it would not have as great a role in education, advice and assistance as other such bodies, yet it is clearly contemplated by the functions of the commission in this clause. Again, will he indicate how extensive a role he would anticipate the commission playing?

The Hon. R.L. BROKENSHIRE: If I did not put my words exactly (although I believe that I did), I say again to the honourable member what I intended to say, clearly and slowly: the educative and investigative roles in this model are not as intense or expansive as some of the other models, because we have tried as much as we can within our capacity to make this as streamlined an ICAC as possible. If the government does not believe there should be any cost, effort and input into education, it can simply move and debate an amendment in the other place whereby it removes the opportunity for education with respect to the ICAC, but as a member of this chamber I strongly warn the government against removing it, because there needs to be an educative role, and it is set out in all the points. If the honourable member wants to read them, it is there.

The final point I would make on this is that I find it interesting that the government is criticising issues around education and finetuning expenses with respect to education, when it can buy $500,000, $600,000, $700,000 or $800,000 worth of advertising, which it then says is important to educate the community about the bad state of the River Murray. The government is talking with a forked tongue.

The Hon. B.V. FINNIGAN: I am not sure how the River Murray crept into the discussion. I indicate to the mover and to the committee that I said no such thing as has been suggested by the mover. I asked him, in the light of the comments he made in the clause 1 debate, what proportion of the work of the commission he anticipated would be the educative function. At no time did I make any reflections on the proposed educative function of the commission, its merit or otherwise.

The Hon. I.K. HUNTER: Clause 7—Functions of Commission, paragraph (l) provides:

To develop, arrange, supervise, participate in or conduct educational or advisory programs as may be required by resolution of either house of parliament.

Like the Hon. Mr Finnigan, I think I also heard the mover say that his anticipation of a possible budget for such a body would be limited because he did not expect the educative or advisory role to be as extensive as elsewhere. Given paragraph (l), I ask the mover: how can he be so certain that the budget he anticipates being reasonable for such a body could not be blown out by resolution of either house of parliament?

We have seen this house of parliament, for example, put up select committees one after the other with no concern about the cost to the budget of this chamber. What if this house of parliament decided to set up advisory or educational programs and told the ICAC to go about its business and run these programs? How is he not concerned—

The Hon. B.V. Finnigan interjecting:

The Hon. I.K. HUNTER: Exactly right—every doctor in the state. How is he not concerned that paragraph (l) leaves a wide open avenue for a budgetary blow-out in his proposed ICAC?

The Hon. R.L. BROKENSHIRE: Paragraph (l) provides:

To develop, arrange, supervise, participate in or conduct educational or advisory programs—

and this is the key factor—

as may be required by resolution of either house of parliament.

The honourable member has a place in this chamber—he is one of the 22 in this place—and he would have the opportunity to have input into that resolution. So, he would have some control as a member.

The Hon. P. HOLLOWAY: I think it is a serious question. The functions—

An honourable member interjecting:

The Hon. P. HOLLOWAY: No, it is additional to the others because a whole lot of serious matters have been raised. Clause 7(1)(b) also permits the commission to investigate matters referred by the Police Complaints Authority. Some models of ICACs were put forward, in fact, by the opposition, when it was suggesting that certain police functions would be absorbed into this new body. That is why I would be interested to hear the comments of the honourable member, who would be more familiar than probably most other members of this chamber with the Police Complaints Authority. Does the honourable member envisage that that authority would continue in its current form, or would the existence of an ICAC change in any way the role of the Police Complaints Authority or, for that matter, any other elements of the police force?

The Hon. R.L. BROKENSHIRE: I thank the minister for his good and relevant question. I would expect and envisage, in the way this is framed, that the Police Complaints Authority and also the IIB would remain in place, but they would have an opportunity for integration and recommendation to the ICAC (as provided in clause 7(1)(b)) 'to investigate any matter referred to the commission by either house of parliament or by the Police Complaints Authority'. From memory, the reason that parliamentary counsel, after discussion, had it drafted that way was because sometimes there are issues where the Police Complaints Authority may want to proceed with a recommendation through that process.

Clause passed.

Clause 8.

The Hon. B.V. FINNIGAN: I notice that this clause is about cooperation with other persons and agencies, and talks about cooperation with various police forces. I believe there are quite a number of police officers employed by other such bodies interstate; for example, of the approved establishment of 317 staff with the Crime and Misconduct Commission in Queensland (again drawing honourable member's attention to the annual report of 2007/08) there are 84 who are police officers. So I ask the mover of the motion to explain how he anticipates the secondment of police to the ICAC to work. Who would pay for those positions, the Commissioner of Police or the commission, or is it an added expense to be taken into account? How does he expect the police to make up for the shortfall of potentially up to 84, but even, say, 30 or 40 police officers being taken off their current roles to work for the ICAC?

The Hon. R.L. BROKENSHIRE: I expect it would work in the same way as police secondments have worked under successive governments. An example of where it has worked really well is with Michael O'Connell, who is now the Commissioner for Victims' Rights. He was a police officer who was seconded. Financial arrangements are made within the justice department for that. If secondments ultimately take place for some time, I expect that there would be a pick up of those officers through a rearrangement of budgets within agencies and departments, as is the case whenever there is a secondment.

The Hon. B.V. FINNIGAN: I think the honourable member is indicating that there may be a further unanticipated cost in his bill. Mr O'Connell is indeed an excellent commissioner, but talking about one person is a bit different to talking about potentially dozens of police officers being taken out their current active duties.

Clause 8(3)(a) also provides that in carrying out functions other than an investigation the commission may work in cooperation with management consultants. That strikes me as a little odd. Given what we are talking about here and what has been touted as the reason for an ICAC—that it will be independent and a watchdog, able to monitor the activities of government, the police force, and other bodies—how is that consistent with hiring an external management consultant. For what duties does the honourable member anticipate the consultants would be hired?

The Hon. R.L. BROKENSHIRE: To further answer the Hon. Mr Finnigan's question about secondment, I point out that there are police officers seconded to lots of different departments. If he went to the Aboriginal Pitjantjatjara lands he would find police officers still seconded, but actually working for the Natural Resources Management Board. That is something that happens on an ongoing basis with police and other departments, and there are processes for that. In answer to this question, clause 8(3)(a) provides:

In carrying out functions other than investigation, the Commission—

(a) should, unless of the opinion that it is not appropriate to do so, work in cooperation with such of the following bodies as may be relevant:

(i) the Auditor-General;

(ii) the Ombudsman;

(iii) educational institutions;

(iv) management consultants; and

(b) may work in cooperation with such other persons and bodies as the Commission thinks appropriate.

So, it is saying if it is appropriate and working in cooperation with respect to matters. There are a lot of management consultants who are employed by government to do work and at times those management consultants may be in a situation where the commission wants to work with them.

The Hon. B.V. FINNIGAN: I am not sure that the honourable member's answer in relation to this is satisfactory. Obviously, it would be a decision of the commission to employ these management consultants, and I do not think I indicated that such consultants would be working on an investigation. I know that is in the clause, but the Hon. Mr Lucas works himself into a positive lather whenever the government engages a consultant to do anything. He starts getting very worked up about the sum of $40,000 or $50,000 being spent on a consultant to do something—'Who appointed them?' and 'Who do they know?' and 'Who are they related to?' and 'Have they ever met John Quirke?'

We get the whole bizarre panoply of accusations and innuendo from members of the opposition, yet here they are supporting a bill that will allow the independent commission against corruption, the great watchdog watching over us all, to hire management consultants. I would ask the honourable mover again: for what purpose would he see such consultants being engaged?

The Hon. R.L. BROKENSHIRE: My answer again is that, as I understand the drafting of this bill, it is to 'work in cooperation with such of the following bodies as may be relevant'. The fact is that, in drafting a bill and bringing it forward, one has to look at options that may occur in the workings or the management of the intent of the bill, and that is why it is in there. It is no different from many things that are put in other bills. That is what parliamentary counsel and others advising with respect to the drafting of these bills do: they try to put in all the options, because you have to have options available in case they are needed.

The Hon. B.V. FINNIGAN: I think that is a pretty extraordinary answer: 'Why is it in the bill? Because parliamentary counsel told me.' I am not doubting of course the wisdom and ability of parliamentary counsel, who do a fine job, but I have asked the honourable mover twice what would these management consultants be doing and he has not provided a response.

The Hon. R.L. BROKENSHIRE: I think I have provided a more than adequate answer compared to what I often get from ministers in this place.

Clause passed.

Clause 9.

The Hon. B.V. FINNIGAN: Clause 9 provides for appointment of commissioners and assistant commissioners by the Governor and outlines what role they will play. Clause 9(1) states:

The Governor may appoint—

(a) the Commissioner; and

(b) assistant commissioners with the concurrence of the Commissioner.

The Governor would appoint the commissioner on the advice of the executive (and I acknowledge that there are other procedures in relation to parliamentary committees) and the Governor would then appoint the commissioner on the advice of the government, but with respect to assistant commissioners it states that it must be with the concurrence of the commissioner. I would like the honourable member to consider this scenario. The executive advises the Governor to appoint someone as an assistant commissioner who is not covered by the parliamentary committee. The commissioner disagrees: it is not with his concurrence. In that instance who will prevail: the Governor or the commissioner?

The Hon. R.L. BROKENSHIRE: I will first of all read the rest of that clause. It provides:

(1) The Governor may appoint—

(a) the Commissioner; and

(b) assistant commissioners with the concurrence of the Commissioner.

(2) The Commission will, for the purposes of performing its functions and exercising its powers, be constituted of the Commissioner or, at the discretion of the Commissioner, an assistant commissioner.

(3) The Commissioner and assistant commissioners may perform functions and exercise powers contemporaneously.

The situation here, as I see it, is the same as we have now with SAPOL, where with the new Police Act the executive appoints the police commissioner and the deputy commissioner but the commissioner then appoints all the assistant commissioners.

The Hon. B.V. FINNIGAN: As I indicated, this clause states:

The Governor may appoint—

(a) the Commissioner; and

(b) assistant commissioners with the concurrence of the Commissioner.

If the Governor, on advice of the government (the executive), proposes to appoint someone as an assistant commissioner, but the commissioner says, 'No, I do not agree, that is not with my concurrence,' what happens? Who prevails? Is the appointment by the Governor invalid?

The Hon. R.L. BROKENSHIRE: If the honourable member has concerns about the wording and drafting, I invite him, during the committee stage, either to file an amendment, which I am sure the committee would be prepared to look at, or if this bill happens to pass the chamber tonight, he will have an opportunity to amend it in the other house, if he is not happy with it.

The Hon. B.V. FINNIGAN: I do not think it is a satisfactory response to say in answer to a question about how a clause will operate, how you will resolve a potential constitutional crisis, 'If you don't like it, amend it.' I again ask the honourable mover whether he could indicate what happens if the Governor, advised by the executive, and the commissioner have a different view about the appointment of an assistant commissioner.

Clause passed.

Clause 10.

The Hon. R.D. LAWSON: I move:

Page 12, lines 9 to 11 [Clause 10(1)(c)]—Delete paragraph (c)

This clause provides that a person is not eligible for appointment as commissioner or assistant commissioner unless that person is eligible for appointment to certain courts in Australia or is a former judge of one of those courts, and they can be South Australian courts, federal courts or courts of other states. Our proposal certainly agrees with that. The honourable member has followed the Liberal Party's proposals in that regard. However, the honourable member goes further and extends the range of eligible commissioners to those who have held equivalent positions in other states.

We have reservations about that proposal, principally because we are not currently aware of what the situation will be in the future with commissions in other states. The laws of other states can change and it is possible that other jurisdictions might allow lesser qualified persons to occupy the important positions of commissioner and assistant commissioner. We believe that it is entirely appropriate either to have those who are eligible for appointment as judges in any jurisdiction in Australia or who have been former judges for those important functions. We believe that by going outside that range and including anyone who might have been appointed to any commission anywhere is going too far.

Accordingly, the amendment is that paragraph (c) be deleted. I invite the honourable member to accept the amendment. I think that would be appropriate, because he would still have a sufficient range of persons to hold these offices.

The Hon. P. HOLLOWAY: Why does the Hon. Robert Lawson want to preclude someone who has three years' experience? I would have thought three years' experience in a position would make one eligible. It is either paragraph (a), (b) or (c). Clearly, by deleting paragraph (c) the Hon. Robert Lawson believes a person who holds, or has held, a position equivalent to that of a commissioner or assistant commissioner in a similar body for at least three years should not be eligible. Instead, you have to be eligible to be appointed as a judge of the High Court. Isn't that just typical legal profession exclusivity in operation again?

The Hon. R.D. LAWSON: No. The point of principle is that there is already a wide enough pool of talent in paragraphs (a) and (b), and one does not know in advance the level of qualifications that might be permitted in other jurisdictions. In some small jurisdiction, for example, they might appoint a police constable as an assistant commissioner, even though he might have served for three years. We do not believe that is an appropriate level of standard for inclusion in this. This is an extremely important position in the government hierarchy. The commissioner and assistant commissioners must be people of the highest integrity and experience. It is for that reason that we do not believe that opening the field in the manner suggested by the honourable member is appropriate.

The Hon. P. HOLLOWAY: I make the point that, just as we thought about this bill, it is going to be a lawyer's paradise only, and heaven help anyone else who gets a look in.

Amendment carried; clause as amended passed.

Clause 11.

The Hon. B.V. FINNIGAN: Clause 11, terms and conditions of appointments, provides:

(1) The Commissioner and each assistant commissioner—

and, to correct the Hon. Mr Lawson, it is not the assistant commissioner: there is no limit in the bill to the number of them that there could be—

will be appointed for a term not exceeding seven years and on conditions determined by the Governor.

(2) A person appointed to be the Commissioner or an assistant commissioner is, at the end of a term of appointment, eligible for reappointment but a person cannot hold office as the Commissioner or an assistant commissioner for consecutive terms that exceed seven years in total.

I am not quite sure whether that means there is no minimum term. Could a person be appointed a commissioner for six months or 12 months, or whatever the Governor may decide?

The Hon. R.L. BROKENSHIRE: I did not quite hear all that. I apologise.

The Hon. B.V. Finnigan: Is there a minimum term?

The Hon. R.L. BROKENSHIRE: That will be up to the Governor after recommendations from the cabinet.

The Hon. I.K. HUNTER: If I understood Mr Brokenshire correctly, if there is no minimum term set and consecutive appointments are permitted as long as they do not exceed seven years in total, is there a provision that stops a government making consecutive appointments of, say, six months' duration, in which case any commissioner would be somewhat in the thrall of the executive, I would imagine. What does he say to that?

The Hon. R.L. BROKENSHIRE: It provides that 'the commissioner and each assistant commissioner will be appointed for a term not exceeding seven years and on conditions determined by the Governor'. That is no different from when issues occur around other independent executive positions. You can appoint for one year, five years or seven years. Most of the time, appointments, as I understand them, in these roles, are for four to seven years.

The Hon. I.K. HUNTER: Again, the mover relies on convention or other areas of government policy, but there is nowhere in this bill that prevents a government's holding a commissioner to some sort of political pressure by rolling short-term appointments. Given the ICAC and the nature of the organisation that he is purporting to set up, surely, the honourable member has thought about the independence of the commissioner and how that needs to be secured in this regard.

The Hon. R.L. BROKENSHIRE: The parliament also has some processes in this bill, but if the honourable member wants to move a specific amendment to clause 11(1) during this debate, or in the other house if this bill gets passed, I invite him to do so. I would love to have some positive contribution from the government rather than it simply saying, 'No ICAC. We don't need it,' and being absolutely negative on every clause of this bill. I would love to have it move some amendments and show some positive input.

Members interjecting:

The CHAIRMAN: Order!

The Hon. I.K. HUNTER: The honourable member says that he would like to have some positive input from the government, but I would like to have a bill that was actually well thought out. I invite the honourable member to go back to my question. If there is nothing in this bill that prevents a government holding a commissioner to political ransom, what is there that will give us any confidence that the commissioner will be independent?

The Hon. R.L. BROKENSHIRE: If he wants to go through the bill, the honourable member will see that there are checks and balances and steps and processes right through it that ensure that the appointment is a proper, kosher appointment. If one goes through the whole bill, as we have been, one will see that there are steps and processes right through it. The fact is that the honourable member is again forgetting that the South Australian public want to have this ICAC. He is not listening to the public. I challenge any government to try rolling six month appointments. Would the public accept that? Would the parliament accept that? Would the media accept that?

The honourable member is advocating some sort of a political process with six month appointments. If his government wants to try that on and this bill gets through, bring it on and let us see what the parliament, the media and the public have to say. I encourage the honourable member to try that trick.

Members interjecting:

The CHAIRMAN: Order! The Hon. Mr Hunter was only seeking an answer to the guarantees that the draft bill provides for the commissioner.

The Hon. I.K. HUNTER: As is the wont of Family First, of course I was drawing on extreme examples. You could drive a bulldozer through this legislation. This is, in fact, a half-baked clause. The honourable member has not given it any thought. If he is serious, the position of the commissioner must be independent—it must be independent of the executive, the government and the parliament. Of course, a government will not be appointing a commissioner for six month rolling appointments, but what about 12 months, 24 months or, indeed, three months?

With an eye on his or her future, how can we be sure that the commissioner will be independent of the executive? We can't under the Hon. Mr Brokenshire's clause.

The Hon. B.V. FINNIGAN: I find it quite extraordinary that the response to the Hon. Mr Hunter's question is that pressure from the public, the media and parliament—members of parliament and the opposition—will not allow it. The whole purpose of this bill, supposedly, is to have an independent commissioner who is beyond the reach of government and who is not subject to political influence. The response to 'How are we going to stop the executive exerting political pressure on the commission?' is that politics will take care of it and that the media and the opposition will hold the government to account. That seems an extraordinary proposition.

The Hon. R.L. BROKENSHIRE: The bill provides that the 'Governor may, on the address of both houses of parliament, remove the commissioner from office'. If there is a real problem the clauses are here. This bill has much better checks and balances than a lot of executive appointments, legislation and so-called independence I have seen in the past. Clearly, the bill provides:

The Governor may, on the address of both houses of parliament, remove the commissioner from office.

I am not saying anything further on this. I know what they are on about and I have given them the answers.

The Hon. R.D. LAWSON: As the Hon. Mr Winderlich has been muttering, if those opposite are so concerned about this particular provision, one would expect them to move an amendment here. Of course, they will have an opportunity when this bill reaches another place to use the numbers there to make changes which they regard as appropriate. There is no point in bellyaching about it here in committee if they are not going to move some amendment to support their own rhetoric.

The Hon. I.K. HUNTER: I am sorry to delay the committee further, but quite frankly the mover has not grabbed the gist of what I was saying. He is going on about a petition of both houses of parliament and the Governor being able to remove a commissioner. That is not the point. Why would a house of parliament—for example, the lower house where the government has a majority—ever do so if in fact it has the commissioner under its control by dint of this clause and its rolling appointments? That is the question the Hon. Mr Brokenshire has not addressed at all.

The Hon. R.L. BROKENSHIRE: Again, I say to the honourable member that, if he wants to move an amendment and get it drafted while we are debating this, I am sure the chamber will be very happy to see an amendment. If he is not satisfied and he wants to see some more specifics with respect to that, to ensure that a devious government would not try political gain, then move the amendment now or, if it is passed in this chamber, I invite him to move the amendment through his colleagues in another place.

The Hon. R.I. Lucas interjecting:

The CHAIRMAN: Order!

Clause passed.

Clauses 12 to 15 passed.

Clause 16.

The Hon. R.P. WORTLEY: This clause allows the appointment of legal practitioners to assist the commission as counsel. Will the mover explain under what circumstances he would anticipate this provision being used? Why would the commission not use the services of the Crown or the DPP? In what circumstances would one engage a legal practitioner as counsel?

The Hon. R.L. BROKENSHIRE: That would be a working call of the commissioner. If the commissioner wanted to appoint a legal practitioner to assist the commission, why not have that clause in there? There have been plenty of situations in the past (and in the present) where commissioners who are looking into certain areas requested by government and parliament have the power to employ legal practitioners as counsel. If you are going to have something as important as an ICAC you would have to give the commissioner (in either general or particular matters) the opportunity to appoint specific legal practitioners to assist him if, indeed, he believed that was necessary. Why would there not be that flexibility in the bill?

The Hon. R.P. WORTLEY: I am not saying we should not have it; what I am saying is that there is a view that this commission will just end up as one big pay check for the legal profession in this state. Unfortunately, the member has just fumbled through the answers to our questions. In what circumstances would you engage a legal practitioner and not the DPP or the Crown? There is a plethora of legal advice in the DPP and the Crown. These are very important questions and issues which we must consider, so can you give some examples of why you would use a legal practitioner?

The Hon. R.D. LAWSON: I can give an example immediately.

The CHAIRMAN: I do not know whether he is asking you but you might want to help him.

The Hon. R.D. LAWSON: The Minister for Local Government Relations announced yesterday that Ken MacPherson has engaged counsel to assist him in the inquiry that he is undertaking. It is accepted that in some cases it is entirely acceptable to engage a legal practitioner. Where the honourable member fails to understand the effect of the clause, such a legal practitioner could be an officer of the Crown Law Department or could be an officer of the DPP. It can be any legal practitioner, whether in public employment or private employment.

Members interjecting:

The CHAIRMAN: Order!

The Hon. R.P. WORTLEY: I still have not had an answer to my question. Of course the commission can engage a legal practitioner from the DPP or the Crown. What I am asking is: under what circumstances would you not seek this advice from the Crown? Why would you engage a legal practitioner outside the Crown or the DPP?

One of the problems with an ICAC is that it is one big massive black hole for the legal profession. It sees it as a way of making lots of money. It has already been expressed by the Hon. Mr Brokenshire that he estimates the cost as being $15 million. Once you start engaging outside lawyers you could double the cost of that commission in no time. I am just asking: in what case would you not use the DPP or the Crown and go outside that to the legal profession? Give me a couple of examples of that circumstance.

The Hon. R.L. BROKENSHIRE: Examples could be where there is a conflict of interest. There may be allegations involving the Crown Solicitor's Office and they need an independent solicitor. I can recall occasions where this government has chosen to pull in legal people from interstate—

The Hon. R.I. Lucas: Victoria.

The Hon. R.L. BROKENSHIRE: —from Victoria, simply because they wanted some so-called independence in the legal system. But I also say that, whilst the government does use the Crown Solicitor's Office regularly (and so it should, as indeed this commission would have the right to), I can recall plenty of occasions in recent times when private law firms have been subcontracted by government agencies and departments to give legal advice. It happens nearly every day, under this government's watch, in many departments and agencies. They do not get all their legal advice from the Crown Solicitor's Office.

The Hon. R.I. Lucas: Take that!

The CHAIRMAN: Order!

Clause passed.

The Hon. R.I. Lucas interjecting:

The CHAIRMAN: Order! If the Hon. Mr Lucas cannot assist in the passage of this bill, he might want to be quiet.

Clauses 17 to 26 passed.

Clause 27.

The Hon. I.K. HUNTER: I have a question about this clause, which relates to compulsory examination. Subclause (3) provides:

A person required to attend a compulsory examination is entitled to be informed, before or at the commencement of the compulsory examination, of the nature of the allegation of the complaint being investigated.

I readily admit that I am not a lawyer. Why is the phrase 'entitled to be informed' used instead of 'shall'?

The Hon. R.L. BROKENSHIRE: In terms of the work that parliamentary counsel, my staff and I have done on that, that was the recommendation based on the way provisions concerning other like-natured commissions and specific clauses of an act are worded. I will be leaving the clause that way, but the member has the right to move an amendment.

The Hon. R.I. Lucas: You couldn't get any better: R. Lawson QC!

The CHAIRMAN: Order!

The Hon. R.I. Lucas interjecting:

The CHAIRMAN: The Hon. Mr Lawson has the call, not the Hon. Mr Lucas.

The Hon. R.D. LAWSON: It is important that people who are required to attend before a commissioner for public examination have certain rights. The present clause provides that a person who is required is 'entitled' to be informed. That means he or she has a right to be informed, and if that right is not honoured he or she has certain redress. If the clause simply provided that a person 'shall' be informed, that would not give to the person themselves the right. That would mean only that the person who failed to give the notice committed some relatively minor breach.

People are entitled to be informed. If they are not informed they have certain rights, which they can enforce. The entitlement given by this clause is an important protection. This is a better protection than the mere provision that requires a person, who is undertaking the examination, to provide certain information.

The Hon. I.K. HUNTER: I am grateful to my learned friend for that free advice, and I emphasise the word 'free' because I understand that, given his eminence in his field, he would otherwise charge quite hugely for it. My concern relates to the following subclause (4)—if that is the case and his advice is correct, and I have no reason to doubt it—where it states:

A failure to comply with subsection (3) does not invalidate or otherwise affect the compulsory examination.

My comment to the mover of the bill is: a person who is required to attend a compulsory examination, who may not have been given his entitlement to be informed of the nature of the allegation or the complaint before or at the commencement of the compulsory examination, has very little redress, because a failure to do so does not invalidate the process at all.

The Hon. R.L. BROKENSHIRE: The member has rightly read the clause but, because of the sensitivities and complexities of the possible investigations, the situation is that that is the way it has to be drafted. That is where I will leave it. Because of the specifics of what we are trying to achieve here from a legal sense, that is the way that the processes are drafted to occur.

The Hon. I.K. HUNTER: Mr Chairman, I give up. Frankly, during the course of this debate in committee, I have drawn attention to some serious flaws in the drafting of this bill. I believe they have not been given adequate consideration by the mover. I believe they are wide open to abuse in many forms. God forbid if the council passes this bill, and God forbid should the government ever consider passing a bill that is so fatally flawed.

Clause passed.

Clauses 28 to 31 passed.

Clause 32.

The Hon. B.V. FINNIGAN: I find it extraordinary that the response from honourable members to questions about a bill is: 'We'll amend it. Rather than answering the questions, you should amend it.' How would we consider and draft amendments when we do not have an answer to our question to begin with? Why would we amend something when we cannot even be informed as to how the clause would operate to start with?

In relation to clause 32, which relates to the substantial powers to summons witnesses and take evidence, subclause (5) provides:

A person appearing as a witness at a compulsory examination or public inquiry before the Commission must not, without reasonable excuse—

(b) refuse or fail to answer a question that the person is required to answer by the Commission; or

(c) ...to produce a document...

Can the honourable mover indicate whether that power of the commission is to be considered absolute in the example of a journalist who is trying to protect a source who provided him or her with some confidential government documents? Would that person be obliged to reveal their source?

The Hon. R.L. BROKENSHIRE: The clause states, 'without reasonable excuse'. I think the honourable member did not read that out. It states:

A person appearing as a witness at a compulsory examination or public inquiry before the Commission must not, without reasonable excuse...

If there is a reasonable excuse, that would take effect, but it has to be a reasonable excuse. It is interesting that, in the area around bikies, the government is talking about all sorts of powers. This one states, 'without reasonable excuse'.

The Hon. B.V. FINNIGAN: To repeat my question: is a reasonable excuse that a person is a journalist and wishes to protect their source?

The Hon. R.D. LAWSON: The commissioner is clearly the arbiter as to what is actually a reasonable excuse in the circumstances: in certain circumstances it may be deemed reasonable, and in others it might not be reasonable. It is impossible to answer in advance whether questions will be directed to be answered.

Clause passed.

Clauses 33 to 50 passed.

Clause 51.

The Hon. R.D. LAWSON: I move:

Page 27, lines 3 to 9—Delete the clause and substitute:

51—Self-incrimination

(1) A statement of information, document or other thing produced under section 45 or 46, that tends to incriminate the person producing it, will not, if the person objects to production at the time, be admissible in evidence against the person in proceedings for an offence other than proceedings in respect of the making of a false or misleading statement or declaration.

(2) This section does not prevent the use of such a statement, document or other thing for the purposes of an investigation under this act.

Currently, clause 51 provides that a person who is required to produce a statement of information, a document, etc., is not entitled to refuse to do so on the ground of privilege, other than legal professional privilege, but if the person objects then the item will not be admissible in evidence for an offence other than for proceedings against him or her for making a false or misleading statement.

We believe that the appropriate form of self-incrimination provision is as proposed in the clause that stands in my name. We believe the appropriate provision, which is a standard provision in a case of this kind, is that a statement of information, document or other thing produced under the compulsion of the previous sections that tends to incriminate the person producing it will not, if the person actually objects to production at the time, be admissible in evidence against that person in proceedings for an offence other than proceedings in respect of the making of a false or misleading statement.

That is the standard clause, and we believe that is the appropriate one in circumstances where somebody is compelled under compulsion of law to produce documents or things. I invite the honourable member to adopt this formulation.

The Hon. R.L. BROKENSHIRE: I advise the committee that I am happy to accept that amendment.

Amendment carried; clause as amended passed.

Clauses 52 to 74 passed.

Clause 75.

The Hon. R.P. WORTLEY: I refer to part 4, Inspector of Commission. I have a question of the mover, but do I address it to the Hon. Mr Lawson or do I do the right angle and it goes over there?

Members interjecting:

The ACTING CHAIRMAN (Hon. I.K. Hunter): Order! The Hon. Mr Wortley will address the question through the chair.

Members interjecting:

The ACTING CHAIRMAN: The chair will decide who will ask the questions.

The Hon. R.P. WORTLEY: This might not be serious to you, but this is a very serious issue for this state, so I think people who want to contribute should at least be given an opportunity to do it without interjection; that is what I am saying. This clause relates to the appointment of an inspector with the powers to watch over the commission, and it also contemplates the remuneration for the inspector, staffing and so on. Does the mover anticipate that it will be a standing practice to have an inspector or that the inspector would only appointed if there were a perceived problem in the running of the commission?

The Hon. R.L. BROKENSHIRE: The expectation is that the role would be permanent because the inspector has certain functions with respect to auditing the operations of the commission: to make sure that the commission is complying with the law; to deal with complaints of abuse of power, impropriety and other forms of misconduct; to deal with conduct amounting to maladministration; and it goes on from there. It is an oversight position to ensure that there are some checks and balances in the performance of the commission.

The Hon. B.V. FINNIGAN: This really is extraordinary. Here we have the Independent Commission Against Corruption Bill. We are going to have the independent commission that is going to be the big watchdog. It is going to keep an eye on us all—government, local government, teachers, doctors and heavens knows who else—and it is going to have a massive staff and a huge budget and, as well, we will have an inspector to keep an eye on the commission, who is also going to be remunerated and appointed for five year terms, not seven for some reason, and will also have staff.

It is just extraordinary that we are going to have on top of the ICAC another level of inspection and oversight as well as a parliamentary committee whose members assumedly would be paid. It really is extraordinary. It reminds me of the quote from Juvenal, which I think I first heard in Yes, Minister: quis custodiet ipsos custodes? Who shall guard the guards?

Apparently we are going to have an inspector to guard the guards and an inspector to watch over the ICAC. Perhaps I should move an amendment to have an inspector to watch over the inspector and inspector No. 3 to watch over inspector No. 2. This is an absurd proposition that you are going to have an independent watchdog to be there to safeguard public administration in this state and, on top of that, there is going to be an inspector to keep an eye on the commissioner. Where does it end?

The Hon. R.P. WORTLEY: If it is the intention to have a permanent inspector, why does clause 75 actually not say that? It does not say that there will be an inspector: it says that the Governor may appoint one. Secondly, is the cost of running the inspectorate and all the staff part of the $15 million cost of the commission or is this on top of that? How much do you think the cost of having an inspectorate with all the staff is going to cost?

The Hon. R.L. BROKENSHIRE: It is intended that this will be within the global budget. I do not quite understand what the government is actually saying here. Is it that it does not want any check and balance with respect to an inspector? With SAPOL, you have the Police Complaints Authority, which in a sense is equivalent to what is advocated here. Are you wanting to dump the PCA, as an example? It is here for a reason and a purpose and it would be within the global budget.

Clause passed.

Clauses 76 to 87 passed.

Clause 88.

The Hon. R.D. LAWSON: I move:

Page 41—

Line 8 [Clause 88(1)]—Delete '7' and substitute '11'

Line 9 [Clause 88(1)(a)]—Delete '4' and substitute '3'

Line 10 [Clause 88(1)(b)]—Delete '3' and substitute '8'

The Hon. B.V. FINNIGAN: Isn't it extraordinary that the Hon. Mr Lawson withdrew all his amendments proposing that it would have to be both houses and not either house that could initiate all these things! Obviously his confidence in Mrs Redmond, the Leader of the Opposition, is so great that he is not prepared to take the risk that the other place would have to sign off on those things.

He wants to keep the old kangaroo court Legislative Council able to initiate all these things by itself because he is pretty confident that he will not have the numbers in the lower house. I have a question of the honourable mover on clause 88. How did he come to the decision that the ideal membership of a joint committee would be seven members—four members of the Legislative Council and three members of the House of Assembly?

The Hon. R.L. BROKENSHIRE: I came to that decision because a joint committee obviously allows input from both houses, but my view—and we discussed this with my adviser for some time—is that it is appropriate as the house of review, as the people's house, that the Legislative Council have four members.

The Hon. B.V. FINNIGAN: This is my last question, but what an absurd proposition this is. It is clearly a naked grab for power. Correct me if I am wrong but other joint committees, I understand, have six members—three from each house—but here we are going to have 22 members of the Legislative Council represented by four members and 47 members of the House of Assembly represented by three members. Why would that be?

That would be because the government does not have the numbers in the upper house. It is composed of the various rabble that are sitting opposite me. This just shows what a ridiculously naked political exercise this is. The joint committee which will have oversight of this commission and which will have the veto power over the commissioner and the inspector is going to be composed deliberately so that the numbers will reside not with the government. That just demonstrates that this is purely a political exercise, it has no justification and it ought to be defeated.

The Hon. R.D. LAWSON: The amendments that I have moved propose that the joint committee do not comprise seven members (four from the council and three from the assembly), but instead 11 members, giving plenty of opportunity for all members to participate in this important committee, three of whom must be members appointed from the council and eight appointed from the assembly. That shows that we recognise that there is a greater number of members in the assembly.

The reason I move this amendment is simply to emphasise the point that the honourable member's bill has adopted the language of the Liberal Party bill in another place. Mrs Redmond moved for the establishment of a committee of 11 with the composition of three and eight and, in order to bring the bills into conformity, I invite members to support my amendment.

The Hon. B.V. FINNIGAN: This really does take the cake, doesn't it! The Supreme Court of the United States can get by with nine justices, the High Court of Australia can do with seven but the joint committee on the ICAC needs 11. No fewer than 11 members will do, according to members of the opposition, to maintain oversight of this committee.

One has to ask whether this is going to be a paid committee of the parliament with its own secretariat. There is another $300,000 or $400,000 a year tossed in. Even on the completely baseless calculations of the honourable member, we are already up to about $15.5 million, so we have had a budget blow-out of $1.5 million just tonight in two hours. Who knows how much it would end up costing if this bill were actually accepted? Now we are going to need 11 members of parliament to scrutinise the ICAC and the inspectorate—a joint committee of 11 members. This really is piling absurdity one upon another.

The Hon. A. BRESSINGTON: If we are to have parliamentary oversight of an ICAC, how is it then an independent commission against crime and corruption? I thought that was the whole point of it.

The Hon. R.D. LAWSON: It is a feature of all independent commissions against corruption in Australia that they have a parliamentary committee with an oversight role. It is a limited role; it can play no part in any particular investigation. It is simply to ensure that the commission is responsible ultimately to the parliament as a whole—not to the government or the Governor-in-Council but to the parliament as a whole. According to the information I read, the parliamentary oversight committees in the various states have fulfilled their function appropriately and it is considered to be a desirable feature of such legislation.

The Hon. A. BRESSINGTON: For further clarity—I am not arguing as I am not sure—I thought those parliamentary oversight committees were in place for the states that did not have an upper house.

The Hon. R.D. LAWSON: That is not the case. In New South Wales the committee has been particularly active in publishing annual reports. We believe, given the level of corruption in this state, that there will be plenty of work for an independent commission against corruption and the oversight committee.

The Hon. I.K. HUNTER: I ask the mover of the bill and the amendments what quorum is required under clause 88 for this committee of parliamentary oversight?

The Hon. R.L. BROKENSHIRE: In my proposal, where there are seven members, you would have to have an absolute majority, as with any other committee. To let my colleagues know—and confirming what the Hon. Robert Lawson said—the oversight role is in force in respect of every state's ICAC.

The Hon. I.K. HUNTER: I thank the honourable member for his response, but where in this bill does it indicate that an absolute majority is required for the parliamentary oversight committee? Could not the parliamentary oversight committee meet with just two members?

The Hon. R.L. BROKENSHIRE: Committees by definition, rule and protocol of this parliament—

The Hon. I.K. Hunter: Where? Point to the definition.

The Hon. R.L. BROKENSHIRE: The same as with any other committee, you would have to have an absolute majority.

The Hon. I.K. Hunter: You haven't written one.

The Hon. R.I. Lucas: Look at the standing orders.

The Hon. B.V. Finnigan: Standing orders don't cover standing committees.

The Hon. I.K. HUNTER: Another flaw in this bill! This bill has not been thought through at all. It is hodgepodge, thrown together by a committee of I do not know who—I can take a guess. Absolutely no thought has been put into the construction of this bill. We are setting a precedent and putting through this parliament a bill that will have a fundamental impact on the way the state is governed, and we do not even know on this important parliamentary committee who will comprise a quorum. It is not in the bill; there is no definition. To what do you point—standing orders? Where does it say in the bill that standing orders will apply?

The Hon. B.V. FINNIGAN: This will be my last contribution, but this debate has demonstrated what a furphy this bill is. It is the independent commission against corruption, potentially with rolling appointments of the commissioner, an inspector appointed over the top, external legal counsel employed, potentially doing prosecutions, management consultants are able to be employed, and a joint parliamentary committee, either composed of a majority of Legislative Council members or, under the other circus model the Hon. Mr Lawson is proposing, with 11 members. This must be the most ill thought-out proposition, completely without justification, to have ever come before this parliament.

The Hon. R.P. WORTLEY: I need a bit of clarification concerning a statement made by the Hon. Mr Lawson a few minutes ago regarding 'due to the level of corruption in the government in this state'. The only corruption in a government in this state over the past 20 years, as I understand it, was during the years when the opposition was in power when I think no fewer than five members were sacked for misleading—

The Hon. R.I. Lucas: Not for corruption.

The Hon. R.P. WORTLEY: The Hon. Dale Baker—

An honourable member: And Olsen.

The Hon. R.P. WORTLEY: And Olsen—that wasn't corrupt was it? Half of your people would have been in gaol if we had an ICAC then.

The Hon. R.D. LAWSON: Mr Chairman, I know you do not need to be reminded of this but other members might: joint standing orders 4 provides that a joint committee may fix its own quorum.

Members interjecting:

The CHAIRMAN: Order!

Amendments carried; clause as amended passed.

Remaining clauses (89 to 104) and title passed.

Bill reported with amendments.

Third Reading

The Hon. R.L. BROKENSHIRE (21:49): I move:

That this bill be now read a third time.

I thank my colleagues and all honourable members for their contribution. I note the criticism from the government, but we have put up a bill that I believe is in the best interests of South Australia, and it is a vast improvement on what the government has put forward.

Bill read a third time and passed.

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