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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-15 Daily Xml
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INDEPENDENT COMMISSION AGAINST CORRUPTION BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 March 2009. Page 1488.)

The Hon. M. PARNELL (21:27): The Greens will be supporting the second reading of this bill, which creates an independent commission against corruption. I note that last year, when the Hon. Sandra Kanck introduced an ICAC bill, The Advertiser described it as the fifth of its type in 20 years, so I guess what we now have is the sixth of its type in 21 years. I believe that it is an idea whose time will come, whether it is by way of this bill or the next one or the one after that. I think that the government must be absolutely certain that members of the Legislative Council are taking very seriously our role in keeping the government accountable, and that includes putting in place legal measures such as an independent commission against corruption that help keep all our organs of government accountable.

I have had a detailed look at some of the differences between the bill before us now and the previous one that the Hon. Sandra Kanck introduced, and I find that most of the differences are close to cosmetic. The basic principle of the establishment of a commission and giving that commission functions and extensive powers is similar in all the models that have been presented to us.

One aspect of this bill that I like is clause 25, which provides for hearings and investigations to be conducted with a minimum of formality and technicality, and it provides specifically that the commission is not bound by the rules of evidence. That does not mean that an ICAC would become unaccountable. I think there are checks and balances built into the legislation but, if we were to require an ICAC to comply with the rules of evidence of a court of law, we may as well just use courts of law; there is not much point in having an independent commission.

The government's argument against an independent commission against corruption has been fairly constant over the years: it says that we do not need one, it says that there is no evidence of wide scale corruption and it says that, if there were, the existing law enforcement agencies and institutions would be capable of dealing with it. I do not accept that, and I have never accepted it.

It seems that in all jurisdictions where an independent commission against corruption has been introduced, they have found corruption they did not know was there. It can become a circular argument if the government continues to say that we do not need a commission because there is no corruption, but we do not know the extent of corruption because we do not have a commission. It is a classic circular argument.

In my second reading contribution, I do not propose to go through all the arguments in favour of a commission against corruption; I have done that previously when we dealt with earlier bills on this topic, and other members have done likewise. For present purposes, I want it on the record that the Greens support an independent commission against corruption and that we are happy to support the second reading of this bill and the model.

I note that the Hon. Robert Lawson has a number of amendments, and we will hear from him as to why he believes those amendments are necessary. I expect we will have a robust debate in the committee stage of this bill, but for now I believe it is important that as a Legislative Council—and, in particular, a Legislative Council under some threat of being made less relevant by proposed government legislation—we make clear that we take our responsibility seriously when it comes to holding government and the organs of government accountable, especially in relation to corruption. Therefore, I am happy to support the second reading of this bill.

The Hon. R.D. LAWSON (21:32): The Liberal Party also supports the second reading of the bill which, in almost all respects, follows the form of a bill introduced in another place by the then shadow attorney-general, Isobel Redmond, in November last year. The Liberal Party is firmly committed to the introduction of an independent commission against corruption.

Whilst the amendments I have placed on file may be numerous, they are relatively minor; in fact, 15 of them are identical in terms. The reason for putting those amendments on file is to indicate the differences that exist between this bill and the Liberal Party bill, introduced in another place and currently before the House of Assembly. Clearly, the government is not interested in progressing that bill there at all.

A very pertinent and sound explanation of the reasons for an independent commission against corruption were provided by former Queensland premier, Peter Beattie, in an item he wrote for The Weekend Australian of 8 and 9 December 2007. He said:

The Queensland Crime and Misconduct Commission caused me, as Premier, enormous political pain and, more than any other organisation, put my government at risk on several occasions. CMC investigations or inquiries caused me to lose a deputy premier and two members of state parliament, while one former minister went to gaol, another is facing court and a couple of other ministers lost their portfolios.

Since its inception in 1990, this standing royal commission has pursued crooked police officers, dishonest politicians and public officials to keep all the bastards honest, to borrow a line from Democrats founder Don Chipp.

Later, he went on to say:

So, why am I consistently on the public record as one of the CMC's strongest supporters, and why did I, as Premier, refer many of the matters to the CMC that subsequently caused me such pain? The answer is simple. Queensland needed, and indeed all states need, a watchdog beyond government control to maintain honesty and integrity in public administration.

The only other line I would read from Peter Beattie is as follows:

For politicians, these independent bodies are a political nightmare, but for public administration they act like a truth serum.

So, there you have it: a Queensland Labor premier pointing to the essential need for such a body not only, as he said, in Queensland but in all states. The South Australian Rann government is living in cloud-cuckoo land if it believes that we do not need an anti-corruption commission in this state. The Atkinson Ashbourne affair established beyond all doubt the need for such a body.

Briefly, the council will recall that a suggestion of corrupt conduct arose, which was reported to the Premier, the Deputy Premier and other senior ministers. What they decided to do was have a secret in-house inquiry which, not surprisingly, gave a whitewash, and the public was never informed about it.

Some six months later, when the matter was first reported to the Crown Solicitor of the day, he said, 'This matter should be reported immediately to the police', and it was. Investigations ensued and charges were laid. The fact that there was ultimately an acquittal does not alter the fact that the mechanism adopted by the South Australian Labor government was entirely defective.

The recent activities of local government in Wollongong, New South Wales, the Rail Corporation in New South Wales, and Brian Burke and Julian Grill in Western Australia all indicate that there is corruption in our community and that bodies of the kind which are established in those states are appropriate to ensure that the issues are appropriately addressed. It is very convenient for the South Australian government to say, 'But we already have a police force; we already have a police misconduct body and we already have an Auditor-General.' Of course, so do those other states in most respects. Certainly they all have a police force and certainly they all have auditors-general. The fact is that those authorities are established for a particular purpose and do not serve the important function of an independent commission against corruption.

I commend to the council and members who may be interested the second reading speech made by the member for Heysen in the House of Assembly on 27 November, which sets out the Liberal Party's position with great clarity. I might mention just a couple of differences between the bill proposed by the Hon. Rob Brokenshire and that which we have advanced and would support. The most significant difference is in clause 51 of the bill. The Hon. Rob Brokenshire's bill suggests that evidence taken by the commission under compulsion (that is, where a person cannot refuse to answer the question on the grounds of self-incrimination or privilege) can be used in evidence against that person in proceedings for an offence other than in proceedings in respect of the making of a false or misleading statement.

We do not believe that evidence should be usable in those circumstances. It is a feature of anticorruption commissions, crime commissions, royal commissions, and other bodies, which have the power to compel people to give evidence and do not allow them the usual privilege of refusing to give evidence on the grounds of self-incrimination, that the evidence they give under compulsion cannot be directly used in their prosecution. That is an important bulwark, and it is one which we believe ought be included in any legislation establishing an anticorruption commission. We do not believe in, as it were, throwing out the baby with the bathwater. There remain important protections which ought to be respected.

There is a very real fear amongst public officials and some members of parliament who have thought about it that they themselves can be the target of false allegations. They themselves can come under unfair scrutiny by these bodies, and that is certainly a danger which ought to be addressed. I think it is important also, as one of the elements of the proposal presently before us and also our proposal, that the commission reports to a committee of the parliament: that it does not report to a minister or to executive government, but that an all-party, joint house committee has an important oversight role. That is the model which is used in New South Wales, Queensland and Western Australia, and it is the model which we commend to the council.

I should also mention that the former auditor-general, Ken MacPherson, supported the establishment of an independent anticorruption commission in this state, notwithstanding the fact that the Attorney-General is saying that we have an Auditor-General who provides sufficient protection. Directors of Public Prosecutions in this state have also supported the establishment of a commission. We will be supporting the second reading.

The Hon. DAVID WINDERLICH (21:44): The Democrats will also be supporting the second reading of this bill. The Democrats made five attempts to introduce an independent commission against corruption in this state. Most of those were led by the Hon. Ian Gilfillan, so it is a longstanding commitment of the Democrats. Most of the allegations about corruption interstate tend to relate to local government. I think that is partly because local government tends to be a much more open sector of government than state government. One could imagine what would happen if cabinet minutes were put up on the web. The degree of scrutiny that would follow and the degree of complaints and fault found would massively increase. Currently most complaints relate to local government.

This highlights one of the lacks we have in our state in terms of fighting corruption, namely, that we are afflicted by a patchwork quilt of arrangements. We have the Anti-Corruption Branch, which can look at individual cases but not systemic issues, and cannot compel people to appear. Issues to do with local government are investigated by a minister of the government, which means there is a risk that political considerations come into play. The Ombudsman has considerable powers, but generally rules out complaints where there is not a direct interest on the part of the complainant, that is, a direct consequence or adverse result to the person complaining from a decision taken by a government body.

As is very often the case, the people who can afford to complain are those who are not directly in the line of fire—it is not their business that depends on the local council or state government department for contracts, or they are not closely involved with some of the decision makers that have discriminated against them. So, the notion of having to have a direct interest tends to rule out those who can afford to complain, while those who cannot afford to make a complaint are the only ones eligible to complain. It is a catch-22 situation.

Of course, we have whistleblowers legislation, which directs whistleblowers back into the very organisations they are seeking to expose in terms of having to take their complaints up the line to designated superiors within the organisation. All the various investigative bodies lack resources and none have a systemic approach or the sort of preventative role that an independent commission against corruption can have.

I note in the Hon. Robert Brokenshire's bill that there are several provisions in the functions of the commission that indicate that sort of systemic and educative approach: clauses 7(1)(g), (h), (i) and (j) all cover issues such as reviewing laws, practices and procedures, education and advising public authorities, educating and disseminating information to the public, and so on—a systemic and educative approach, which is completely lacking from anything we have in this state. That is another important role of an independent commission against corruption.

The lack of any such channel means that community members go through this bizarre snakes and ladders exercise of following different investigative bodies and their processes down different dead-end paths and being knocked out on technicalities or a failure to know the rules or simple limitations in the system, and as a result they become disillusioned and cynical, which undermines confidence in governance in the state in general, which is extremely unhealthy.

Finally, the most striking aspect for me about the whole debate is the state government's refusal to consider an ICAC or anything like it. We have an extremely strange situation in this state where, apparently, we have crime—organised crime, bikies, paedophiles and hoons. The state government tells us frequently that we have all these threats and that it is acting to crush these threats in various ways, but we do not seem to have corruption, white collar crime. By some very strange result of how this state was settled, we have ended up with as much or more street crime than anywhere else, which must be fought by the government, but we do not have white collar crime and do not have to worry on that count. It is very hard to understand how this came to be.

This bill is inevitably doomed to failure: if it gets through this place it will be knocked off in another place by the government, which is sad. In getting the support of this council, it is at least keeping the debate alive and highlighting to the South Australian community that there really is only one barrier in the way of an independent commission against corruption in this state, and that is the state government itself.

The Hon. B.V. FINNIGAN (21:50): The government opposes this bill. It was good to hear the Hon. Robert Lawson speaking so eloquently about the Liberals being groundbreakers on this proposition to introduce an ICAC, championed by Martin Hamilton-Smith and Isobel Redmond, but apparently not championed so well that the Hon. Mr Robert Lawson could bring himself to vote for either of them in recent events. We have also heard the Hon. Mr Lawson and the Hon. Mr Brokenshire (who sponsors this bill) talking about the need for an ICAC when, of course, they sat in cabinet not so long ago. I would like to know how vociferous they were on those occasions in pushing for an ICAC and saying that it was required in this state. Where was it a policy of the previous government? Suddenly, because they are not in government, they assume that there must be something rotten going on—or probably they hope something rotten is going on—therefore we need an ICAC because they are in opposition—

The Hon. J.S.L. Dawkins: What about Randall Ashbourne, Bernie; you know all about that?

The Hon. B.V. FINNIGAN: We have the Hon. Mr Dawkins interjecting about the Ashbourne matter, which was brought up again by the Hon. Mr Lawson, who will probably have something written on his tombstone about the Atkinson/Ashbourne affair, as he likes to characterise it. It was a matter that was investigated over and over again, including by the Anti-Corruption Branch. It was the subject of a criminal trial and the subject of a select committee in this place and still no evidence was found to indicate that the Attorney-General was engaged in any wrongdoing—and that is what upsets the Hon. Mr Lawson. He wanted a scalp, he did not get one, and he will never get over it—and to suggest that that should be our motivation for bringing in this lawyer's frolic and spending $20 million or $30 million a year of taxpayers' money on an ICAC is extraordinary.

As the Hon. Mr Parnell and, indeed, the Hon. Mr Winderlich have indicated, we have been over this ground many times. In fact, I think this might be the third contribution that I have made in just three years on an ICAC, if memory serves me correctly. As I have indicated before, the government does not support the establishment of an ICAC. It will be an expensive and unnecessary exercise that would please lawyers and sensational media and no-one else.

We have a whole range of institutions and mechanisms, including the Anti-Corruption Branch of the South Australia Police—the South Australia Police in which the government does have confidence, unlike the opposition. We have whistleblowers protection; we have the Auditor-General who reports to parliament and who is an independent officer; we have the Ombudsman, who has the powers of a royal commission in terms of questioning people; and we have the Police Complaints Authority. A range of mechanisms are already in place, and the suggestion that we can have some sort of $30 million one-stop shop for corruption that will fix everything is extraordinary.

I mean, where does that leave all those institutions I have just talked about? Does that mean we get rid of them and replace them simply with an ICAC? That seems to be the vein of thought that is coming from members opposite; that is, there will be this one body that suddenly will be able to handle everything and solve all allegations or suggestions of corruption when, of course, we reiterate that there is no evidence to suggest that there is wide-scale corruption that needs to be dealt with.

The Hon. A. Bressington: If you don't look for it, you won't find it.

The Hon. B.V. FINNIGAN: As the Hon. Ms Bressington says, 'If you don't look for it, you won't find it.' Their entire argument is that something has to be wrong; something has to be rotten; there has to be corruption; something is going wrong out there. Somewhere someone is taking a brown envelope full of money and we need an ICAC to find it! There is no evidence at all that this is happening, but let us set up an ICAC because it must be happening, there must be something corrupt about this government! This is an extraordinary proposition. It is not based on any evidence. The government opposes the establishment of an ICAC openly and proudly because it is an expensive lawyers' frolic that will not serve the taxpayers, and it will not serve accountability for public administration in this state.

The Hon. R.L. BROKENSHIRE (21:55): I have much admiration for the Hon. Bernie Finnigan, but I am very disappointed that on behalf of the government he has had to come up with so much nonsense—no defence whatsoever from the government. Frankly, if there is nothing to hide, open it up and be transparent. If it would cost a mere $20 million or $30 million in a $14 billion budget to keep our state pristine and snow white—the only one in the world where there is no corruption—I say let us make a good investment and keep this state away from the snakes and have a snow-white state long term.

I rise to thank all honourable members for their indications of support for this bill. However, I am really disappointed that the Labor government remains (to use the words of former prime minister Paul Keating) recalcitrant in its opposition to an ICAC. As I have said in relation to the debate tonight on the Victims of Abuse in State Care (Compensation) Bill, this bill is also about a concept, irrespective of what one thinks about the model.

I will conclude the second reading debate on this significant bill and then adjourn it until the spring, because I am hoping that government members will have a change of heart and thought pattern over the winter recess and that they will come back and say, 'We will honour the Premier's 2002 commitment to have an open, honest, accountable and transparent government and state.' You never know: we might wake up when we come back here in the spring and find the Premier making this announcement.

It is almost ironic that today at 4pm Eastern Standard Time a significant development in corruption occurred in Australia. Where? In Queensland—the only state in Australia without a Legislative Council. I will read from the News Limited story's opening lines:

Former Queensland government minister Gordon Nuttall has been found guilty of corruption. The Brisbane District Court jury returned just after 4pm after deliberating for almost five hours. The jury found the 56 year old former Labor MP guilty of corruptly receiving a total of [about] $300,000 from mining magnate Ken Talbot between 2002 and 2005. He was also found guilty of receiving $60,000 on April 12, 2002, from businessman Mr Harold Shand.

Here again we have another example of the benefits of an ICAC, with the Queensland equivalent, called the Crime and Misconduct Commission, involved in interviewing former minister Nuttall and taping key evidence, which was produced at his trial.

In my second reading contribution, I outlined the national models and the Hong Kong model, but I want to place on the record a couple of further examples. Now Indonesia has one: its Corruption Eradication Commission (I will not try to pronounce its proper name: Komisi Pemberantasan Korrupsi). South Korea, until February 2008, had a Korea Independent Commission Against Corruption.

An honourable member: Zimbabwe?

The Hon. R.L. BROKENSHIRE: Zimbabwe would like one, but it does not have anything like a democracy. Indonesia's ICAC equivalent (KPK for short) was established in 2002, and it is difficult to find out more about it since its public information is in Indonesian. However, its vision (which is very relevant) is 'realising a corruption-free Indonesia'.

By contrast, Korea maintains information in English with respect to its ICAC equivalent. Korea formed an ICAC on 25 January 2002 in response to a campaign by non-government bodies and watchdog groups, which bravely called for such anti-corruption measures in response to the 1997 Asian financial crisis. It is not about attacking governments: it is about corruption in the corporate sector and so on and so forth. Their coalition took the name Citizens Coalition for Anti-Corruption Legislation.

Given the current global financial crisis I thought it appropriate to retrace the Korean ICAC just a little for honourable members. I say Korea had an ICAC, because it now has a new, larger body which is called the Anti-Corruption and Civil Rights Commission, and that was formed on 29 February 2008—

An honourable member interjecting:

The Hon. R.L. BROKENSHIRE: South—as a merger of the Korean ICAC. They merged the country's ombudsman and Administrative Appeals Commission. So, even over in South Korea they did not think that the ombudsman had enough teeth so they merged it there, but in South Australia we cannot—we cannot even have an ICAC.

Notably, the KICAC, as it is now called, assists Indonesia's KPK as well as the UN development program to assist four other Asia Pacific countries in combating corruption. Korea's ICAC equivalent won praise from the 2005 17th APEC Ministerial Council for its coordinating work in that regard.

Corruption is prevented when you have a healthy number of independent non-government bodies, which I note that the Premier wants to get rid of as of today but, notwithstanding that, the South Australian voters will make the decision, not the Premier.

One such body that readily comes to mind, because I am standing in it, is our Legislative Council. It is timely that we have this debate today. I respect you, sir, and I have not had a chance to talk to you, but I believe that you would be very happy with the democracy in the Legislative Council with 22 members, because you understand about democracy, having worked through the shearing sheds and done the hard yards to get to where you are; you understand all about democracy.

Again, it is timely that we have this debate today as we reflect upon a state government that today has shown (and I understand that caucus did not necessarily agree with the Premier and, of course, probably the cabinet did not either, but we know that the cabinet is one, possibly two, and at an absolute number three) that it is determined to dismantle this Legislative Council and silence crossbenchers and Independent voices.

I noted today what the Leader of Government Business, whom I have a great respect for and say publicly that he is one of the best ministers, the Hon. Paul Holloway, said about former member the Hon. Nick Xenophon. An interesting point is that Nick Xenophon would never have got into parliament under the Premier's model put up today, because he got 2.8 per cent the first time. He would never have been here—never have got here.

The Hon. G.E. Gago interjecting:

The Hon. R.L. BROKENSHIRE: No; he would never have got here under the Premier's model, because he only got 2.8 per cent the first time in 1997, and under that he would never have got here.

The Hon. G.E. Gago interjecting:

The Hon. R.L. BROKENSHIRE: Do not look at 2006: look at 1997. He would never have got here. It would have been the absolute dictatorship of all time. Together with the changes it proposes to the Electoral Act, you really have to wonder how far we are living in a dictatorship.

The Hon. B.V. FINNIGAN: I rise on a point of order. I was under the impression that the Hon. Mr Brokenshire was closing the debate on the ICAC bill.

Members interjecting:

The Hon. B.V. FINNIGAN: Sorry, are you in the chair?

The PRESIDENT: Order! Are you suggesting that he is repetitive?

The Hon. B.V. FINNIGAN: I cannot hear myself think with the noise going on over there, Mr President. I do believe that the honourable member was summing up in the ICAC bill, and he is not addressing that at all.

The Hon. R.L. BROKENSHIRE: I was trying to talk about corruption.

The PRESIDENT: I do remember the honourable member saying that he would be brief.

The Hon. R.L. BROKENSHIRE: Yes, sir; I will be. I thank you for your guidance, and I listen to you, Mr President. As a country person I am always brief, and I talk fast, as we all do in the country. An ICAC is a great compliment to an independent watchdog Legislative Council—it is parallel, it works together, it fits like a glove—because an ICAC, rightly, can investigate and make recommendations, but it will be parliament that can determine whether to act upon those recommendations—absolute democracy.

The Family First model gives greater oversight and responsibility to the Legislative Council, because traditionally it is the house of review and it has not always been a house controlled by the government—thank God. This is a healthy thing, both for democracy and for preventing corruption.

The model we have proposed is the subject of amendments proposed by the Hon. Robert Lawson and we will look at those more closely over the winter break. Again, in conclusion, I thank all my colleagues who have contributed to the debate on this bill and I look forward to the committee stage. This is a very important bill in the history of this state and, as I have said, the conviction of Gordon Nuttall for corruption as a minister in Queensland—the only state without a Legislative Council—simply reinforces today how important that debate is. I commend the bill to the council.

Bill read a second time.

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