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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-06-28 Daily Xml
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INDEPENDENT COMMISSIONER AGAINST CORRUPTION BILL

Second Reading

Adjourned debate on second reading.

(Continued from 14 June 2012.)

The Hon. M. PARNELL (11:12): There is a great sense of deja vu in rising for the fourth time, in fact, to speak to a bill to introduce an independent commission against corruption in South Australia. I have lost track of the number of bills overall, but my understanding is that the Democrats introduced, I think, five bills, the last two of which, when I was in parliament, were supported by the Greens. Family First introduced a bill as well, which the Greens also supported, and the Liberals introduced a bill, which I do not think got to a vote but which the Greens would also have supported had it done so.

They were not identical bills, but what they all had in common was the recognition of the need in this state for a formal body to investigate and take action against official corruption. Whilst, with all those different models, we could have nitpicked around some of the fine detail, they all had that at their heart: a formalised body to investigate and deal with official corruption. However, we do now have this bill from the government, and it has been some time coming.

I do not propose to go into the entire history the government's reluctance in the face of calls from all corners of society to introduce an ICAC, but I will just note an observation I first referred to back on 21 November 2007, which is the first time I got to debate a bill on an ICAC. There was a very prescient article published in The Australian—you do have to look hard these days in The Australian for such articles, but there was one back on 27 August 2007—which was headed, 'Opposing the obvious: why are some premiers against corruption commissions?' The article read:

If the first sign a premier has been in office too long is a statement that independent oversight of the government is unnecessary, it is time for Labor MPs in South Australia to start thinking about a successor for Mike Rann. Last week, Mr Rann suggested South Australia does not need an independent corruption commission because in other states such agencies spend a lot of money on lawyers.

The article went on:

But whatever Mr Rann thinks, from the wretched regime of Joh Bjelke-Petersen in Queensland a generation ago to the more recent influence-peddling of Brian Burke in Western Australia, the evidence is overwhelmingly in favour of well-resourced corruption commissions.

I think it is both timely and fortunate for our state that the government has seen the light and decided to introduce an ICAC bill.

When I first spoke about ICAC way back in 2007—that was in relation to a Democrats' bill—I had recently attended a public lecture by His Honour Jerrold Cripps, who was the New South Wales independent commissioner against corruption. He made the observation—and I think it is as true today as it was five years ago—that some 34 per cent or one-third of matters dealt with by the ICAC related to local government, and the vast bulk of those related to local government in its capacity as the assessor and approver of development, and in relation to rezonings.

It is therefore no surprise that most of the correspondence that the Greens have had on this bill on this occasion has in fact come from local councils, who see that their area of responsibility is very likely to be at the pointy end of the work of the independent commission against corruption and its related bodies. I note that some amendments were filed just yesterday, I believe, by the government, which seek to address some but not all of the Local Government Association's concerns, but we will deal with those matters more fully when we get into committee.

The Greens' position in relation to these bills, as I have said, has been that we have supported them in principle. I do not think any of them have got beyond the second reading stage, but we are now very keen to look at the fine detail of this government bill, because I think there are some serious questions that need answering. However, overwhelmingly, the Greens' position has not changed: we support the creation of an independent commission against corruption and we will be supporting the second reading of this bill.

I also note that the Greens have moved for a similar body to be set up at the federal level, not because we believe it would replace state and territory anticorruption bodies but because it would complement them. Most recently, under the new leader, Senator Christine Milne, the Greens have reactivated that call in the federal parliament.

When we are talking about independent commissions against corruption or corruption watchdogs generally, there are a number of key principles that need to be balanced. At the heart of it, we need to get the balance right between a regime that discloses and adequately deals with public corruption or maladministration—that brings that behaviour to light, deals with it and puts in place measures to stop it happening again—and the rights of innocent people not to be unreasonably smeared in a forum where they might not have any opportunity to defend themselves. Getting that balance right I think is important. At the outset, I will say that having the bulk of investigations undertaken in private probably helps to get the balance right. That is not to say that all dealings with the independent commission against corruption should be hidden from the public and should be secret; we just need to get the balance right.

In terms of the detail of the bill, the first thing that we have to consider with this, as with any legislation, is what does it cover? What does it mean when we talk about corruption or misconduct or maladministration? The bill sets out in some detail what sort of behaviour is expected to fall within those definitions. In clause 5 of the bill we have a definition of corruption in public administration, a definition of misconduct in public administration and a definition of maladministration. As we work through the hierarchy of conduct, we get right down to the point in relation to maladministration, where it looks at not just impropriety or negligence, but also incompetence.

The idea of incompetence in public administration should send shivers down the spine of a large number of people, not just in local government but at the state and federal levels as well, I think. It is a word that I know the Local Government Association is nervous about. What does it mean for someone to be incompetent? We do need to remind ourselves that the only qualification for being a member of a local council or a member of a state or federal parliament is that you are elected to that position. There is no test other than the test of public opinion at the ballot box. So, when we get into committee we will explore some of the detail of that definition: what is meant by incompetence and how is that different from impropriety, negligence or other forms of misconduct.

I note that the regime in other states is quite different in terms of how they define the type of conduct to be caught by the anticorruption regime. For example, if we look at the New South Wales ICAC Act, in section 8, a part of their definition of corrupt conduct is any conduct of any person—whether or not a public official—that adversely affects or could adversely affect either directly or indirectly the honest or impartial exercise of official functions by any public official, any group or body of public officials, or any public authority.

That notion of it being corrupt conduct to behave in a way that could affect the impartial exercise of official functions raises all manner of questions about how things are conducted in parliaments and in councils. Where do we draw the line between normal politics and something that falls across the line and becomes corrupt?

A good example, and one of the examples that in the United Kingdom has led to law reform, is the cash-for-questions incident in the early 1990s. If members are not familiar with it, basically, The Guardian newspaper in October 1994 ran a story alleging that one of London's most successful parliamentary lobbyists, a chap called Ian Greer of Ian Greer Associates, had bribed two Conservative members of parliament in order for them to ask parliamentary questions and do other things in parliament on behalf of the Egyptian owner of Harrods department store, Mr Mohamed Al-Fayed. This is the cash-for-questions incident.

I am sure that members would be keen to note what the going rate is. We have question time coming on at 2.15, and I know that the Hon. Terry Stephens is keen to know. The going rate in the UK is £2,000 per question. In fact, the allegations became more than that, and what we did see is that one of the MPs resigned immediately after the allegations were made public. He basically admitted to taking money. He denied taking the money from the lobbyist. He said that he took it from Mr Al-Fayed himself rather than from the lobbyist, but it is really nitpicking, I think.

Adding to the cash-for-questions episode, there was cash for honours. I note that the Hon. Terry Stephens perhaps coveted a knighthood. I am not sure what the going rate for a knighthood was, but it certainly became a party fundraiser dispensing Her Majesty's largesse in the form of imperial honours.

Whilst we could make light of it, as I am to a certain extent, it does raise the question about where the line is. We can look, for example, at the situation in New South Wales, where it seems very clear that a deal was struck between the New South Wales government and the Shooters Party, that in exchange for the Shooters Party vote to privatise the electricity network the government would open up 79 national parks for recreational shooting, and that was the deal that was done. That is now a matter before the Independent Commission Against Corruption in New South Wales.

As a parliament, we need to decide to what extent is that just reasonable political horsetrading, or is it corrupt? Where is the line? Whilst that might be a difficult one for some members to get their heads around, I think that anything that involves money, any exchange of cash for executive favour or action, would, clearly, fall the wrong side of the line when it comes to official corruption. For example, if a minister of the Crown were to give special treatment or facilitate development approval in exchange for cash from a major party donor, then most of us would accept that that is corrupt behaviour and would be caught by the ICAC.

The problem is that whilst those sorts of donations and political decisions absolutely stink in the minds, or the noses, of the general public, what we always see in this place is that whenever such questions are raised a minister will come in here, or the other place, and say, 'It's an outrageous allegation. We considered the decision on its merits, it warranted approval and so we approved it.' When you point out that the party that was the beneficiary of this ministerial approval is also a major donor to the party, and you can track their donations, we are told that we are outrageous in making such links, that we should be ashamed of ourselves and how could we possibly even consider that the donations had any impact at all on the decision that was made?

I have been the subject of that on a number of occasions in this place. I remind members again of that well known, oft-repeated interview conducted on ABC radio in 2007 when Mr John Blunt, the CEO of the Makris Group, was interviewed by Matt and Dave. He was asked, first of all, how much money had they given to the Labor Party and why did they give that money? This was in the context of a number of recent major project declarations that favoured the Makris Group. I suggested, in parliament, that in the 2005-06 year the Makris Group had given the South Australian branch of the Labor Party a total of $32,000 in three separate donations.

I was gazumped by the Hon. Rob Lucas, whose forensic abilities were perhaps a bit better than mine at the time. He found that there was much more money than that, if we took into account the related entities. He will correct me if I am wrong, but I think he got it up to over $180,000. The importance of that interview is that despite government protestations that donations to political parties do not affect the decisions they make, clearly that is not the perception that is held by the donors because what Mr Blunt said in that interview was, when David Bevan asked him why the Makris Group chose to donate money to the Labor Party:

I mean, we have got business interests, as well, so we want good governance. We want to see things happen in this state.

Matthew Abraham then interjected:

You want to be looked after, too?

In response, John Blunt agreed and said:

Yeah, we want to make our projects happen, that's for sure, but, you know, that's a part of the way the system—you know, politics—works here.

So, from the horse's mouth, from the donor's perspective, they think they are getting something from the donations they are making. The government denies it. The question is: how do we resolve this? Do we resolve it in the chamber? I will ask the questions. I will be told that I am muckraking by the minister and how dare I and to get out of the gutter. We need an ICAC. We need an independent commission against corruption that can investigate those claims and those sorts of behaviours.

However, I think it would be wrong to suggest that, when it comes to members of parliament, all of the mistakes made are made fraudulently and deliberately. I think there are occasions when people get things wrong, where they mess up, where they do not fully understand, for example, various entitlements. We have had the controversy here over entitlements to travel and the ability of an MP's spouse or children to travel, and I do not think anyone in this place would deny that there has been a degree of the grey area about what entitlements are.

One of the things I think is good about the approach that has been taken by my federal colleagues in Canberra in terms of the Greens' model for a national integrity commissioner is that they also have a parliamentary integrity commissioner to oversee the entitlements and the ethics of members of parliament and also that they can give advice to members of parliament who are not sure, who do not want to do the wrong thing, who do not want to fall foul of that line of misconduct or improper use of entitlements, so you can actually go and get some advice. That, I think, is a good model that hopefully will see a number of those federal controversies diminish over time.

I will also point out that this model forms part of the agreement that the Australian Greens made with the Gillard government in exchange for support after the last election. We look forward to seeing how that model works, and it may well be something that we need to adopt here, because whilst codes of conduct have their place they are not enough by themselves.

Another aspect of the bill that we need to look at—and, again, we will deal with this more in committee—is who can refer matters. I think it seems fairly clear that basically anyone can, but the difference with this model is that the referral is not directly to the ICAC; the referral is first to the Office of Public Integrity. That raises a question about the relationship of that agency with the community. When we get into committee and begin discussing the ICAC itself and how it works and when they will or will not put out public statements in relation to their private investigations, there is also a question about whether the Office of Public Integrity will be making statements about matters that they refer to the ICAC, the ombudsman, the police or elsewhere.

I think it will be important for the public to know that matters are being dealt with. They do not necessarily need to know all of the details at the earliest stage, but they do need to know that the matter is being taken seriously and it is being dealt with.

In terms of the responses to misconduct, clearly there is a continuum of responses. At the most serious level it involves criminal charges, trial and potentially gaol and fines; that is up at one end of the spectrum. At the other end of the spectrum, you might find low level misconduct (we will not call them offences) which might be dealt with by the person concerned going away and doing a training course, for example, maybe in relation to financial management or maybe in relation to something else. So, there is a whole continuum of responses. Over time, once this regime is in place, we will need to see whether the authorities—the ICAC, in particular—are picking the mark correctly. Are they, in fact, imposing the right response for the right level of behaviour?

The Greens welcome the fact that the government has finally seen fit to introduce this legislation. I have had a fairly thorough briefing from both the minister and the Local Government Association. I need to double-check how many of their concerns have been picked up in the government amendments that have just been tabled. Certainly, we have had some argy-bargy earlier this month where the Local Government Association claimed that they had not been consulted and the minister said they had, but I do not need to go there, I just want to make sure that all of the issues at the end of the day are thoroughly canvassed.

What I do look forward to—once this bill is in place, as I am sure it will be soon—is for the act, as it will be, to act as a silent sentinel, if you like, that will actually drive better behaviour. In fact, a lot of integrity arrangements that we put in legislation are effective not just because of the behaviour that they catch but also for the behaviour that they prevent.

It has been a long time coming. The Greens welcome the fact that we are now going to get an independent commission against corruption. We will be supporting the second reading of this bill and looking forward to the committee stage.

The Hon. R.L. BROKENSHIRE (11:35): I rise to advise that Family First, in principle, will be supporting this government ICAC Bill. We will be looking at amendments that have been tabled by colleagues and looking at some specific questioning during the committee stage but, as I say, the principle of having an ICAC bill come through this parliament is very important and it is long overdue.

We are already on the public record, having previously talked in detail about why we want an ICAC in South Australia. In fact, a lot of the principles of this bill are similar to a bill that we put up a couple of years ago that I thank the majority of colleagues in this house for supporting. That bill was passed by the Legislative Council but was stalled in the lower house because, at that point in time, this government did not support an ICAC.

To give credit where it is due, I do give credit to the Premier, Jay Weatherill, the Attorney-General, John Rau, cabinet and the whole of government through their caucus in now seeing the wisdom of bringing in an ICAC bill. I understand that the probable reason why they did that was there had to be points of difference shown between Premier Weatherill and premier Rann.

I am sure that when Premier Weatherill was waiting to be formally sworn in over that period of time, he was at Labor headquarters on South Terrace asking about qualitative and quantitative polling. I am sure that one of the key things that he saw in that was that the South Australian community was very frustrated that there was not an ICAC and that was really polling badly against the government, so Jay Weatherill, in his wisdom, realised that they had to announce an ICAC, and that is really how it happened.

Members interjecting:

The Hon. R.L. BROKENSHIRE: I am pretty sure of how that would have happened. Having said that, the pressure, the heat, came to bear good fruit and we now see an opportunity for an ICAC. This ICAC Bill, one way or another—I agree with other members—will be passed, clearly with some amendments, I would expect. I will be looking particularly closely at some of the amendments the Hon. Ann Bressington has already tabled and the amendments that I understand the Liberal Party and the government have tabled or are going to table with respect to issues raised by the Local Government Association.

I am surprised that there was a debate on consultation and that it was said that there was not consultation with the Local Government Association because I thought, until recently, that there was a serious attempt now to debate and decide rather than announce and defend, but I think the jury is still out on that. You see a lot of things like the ferry at Cadell, where there was no debate and decide, it was just announce and, for a start, defend.

We would have been the only state in Australia that would not have had an ICAC. With 1½ million people in this state and a bureaucracy of about 90,000 public servants, we would be kidding ourselves if we did not think we had a need for an ICAC. We may be a state of free settlers, but there are certainly going to be issues around corruption and probity here in South Australia just like there would be in any other state.

I never accepted the former premier's argument that we had a Police Complaints Authority, an internal investigations branch, an ACB and so on and so forth. Of course we had those, but of course all other states also have those as well as an ICAC. Even if we were that squeaky clean as a state that there was no need for an ICAC, I think the expenditure of having an ICAC in place would be justified by ensuring that we remain a very clean state when it comes to corruption issues and the like.

One of the things we are concerned about—and we will drill into this more during the committee stage in the next week of setting—is that we want to make sure that this is a full and comprehensive ICAC and that corners are not being cut. Some of our decision-making in the committee stage will be based on clause 1, and some questions will put to the minister with respect to that.

One of the things that is pretty fundamental to how successful an ICAC will be is how much funding it gets, how it is going to be staffed and how it is going to be managed. When the government was opposing an ICAC, the then attorney-general (Hon. Michael Atkinson) was critical of the model I put up because he claimed it would cost millions of dollars a year more than I had estimated with the limited resources I had for the model.

Our estimations were based on models with successive recurrent years of budget expenditure by ICACs but, nonetheless, Michael Atkinson said that much more money than that was required. Yet now we understand that we are going to be able to have a fully-fledged ICAC that will have all the comprehensive processes of any other ICAC in any other state, the only one difference appears that we can do it at a bargain basement price.

The Hon. A. Bressington interjecting:

The Hon. R.L. BROKENSHIRE: Yes. We are going to need some explanation from the minister and her advisers to see whether or not we are convinced that the sort of funding model they have is sufficient. If you are going to have an ICAC, you have to ensure that it can do its work adequately and appropriately.

There does need to be some questioning on the Office of Public Integrity. I would have thought that the best model was one where anyone who had a concern could lodge it directly with the commissioner. I hope that we can find a suitable commissioner. I note with interest that in the media Premier Baillieu in Victoria expressed concern about finding the right person to take up the lead position. That in itself is concerning because I would have thought that there were a lot of learned men and women with the right qualifications who would jump at the opportunity of taking on this role.

As I see it, this will be one of the highest public offices in this state and, therefore, I think it is healthy that the Hon. Ann Bressington has decided to put an amendment stating that both houses of parliament should be involved in that decision; it does need to be a multipartisan acceptance of the commission position. I certainly have an open mind, as does Family First as a party, and will listen to and consider strongly what the Hon. Ann Bressington has to say when she speaks to that amendment.

Gary Burns is our new police commissioner (and I personally believe he will be an excellent police commissioner) and clearly there is multipartisan support for him, and that is healthy: it is healthy for the parliament and it is also healthy for the new police commissioner. I think it would be healthy that, when you are dealing with issues of probity and corruption, the person heading that position has the full confidence of a democratic parliament. We will listen to that debate with a lot of interest. They are the key points I wanted to raise at this stage.

The community of South Australia has, in an overwhelming absolute majority, clearly indicated for several years now that it wants an ICAC. As a member of parliament, I am very keen to see an ICAC. In my earlier years in parliament, I did not have issues coming across my desk where I thought. 'Gee, I wish there was an ICAC. I can't see a road that I can take this issue down.' That never used to happen in the early days but, for some reason I cannot put my finger on exactly, a range of issues have come to me over the last several years from constituents where I would have loved an ICAC. I would have said, 'Look, this is the opportunity, this is the model, here is a vehicle for this issue.'

I have to say, sometimes when I have represented constituents in recent years and gone to what I thought was the appropriate vehicle to consider this allegation—sometimes a very serious allegation about an individual or individuals, or the state as a whole—I have come up against a roadblock. A classic example has been with issues around public servants whom I believe have had genuine allegations. You try to send things to the Auditor-General when you can. You send them there, but you often do not actually hear back from the Auditor-General. The Auditor-General has no legal requirement, as I understand, to report back to a member of parliament when that member of parliament puts something forward.

In the case of the Commissioner for Public Sector Employment, I have put forward stuff that I believe needed investigation, only to find that after a little while a letter comes back saying, 'Send that back to the department and let them investigate it.' I have said, 'Hang on a minute, I have already tried that and so has the constituent. It is not working. Surely your role as the Commissioner for Public Sector Employment is to investigate that.' It is a whitewash.

We do need a fresh start here. There is a real need for an ICAC. The government and the parliament have identified that. Most importantly, the absolute majority of South Australians have called for it. They are going to get a positive answer to their request, and we will have an ICAC. The challenge for us now in committee is to ensure that we set up the best possible model for the long-term interests of all South Australians. With those words, I commend the principles that the government has put up in respect of the ICAC Bill.

The Hon. A. BRESSINGTON (11:46): I rise to speak to the Independent Commissioner Against Corruption Bill 2012. In doing so, I thought I was going to be the only one to express concerns over the model that has been put before us, but it seems that most members in this place have had very similar experiences to me in having to deal with the complaints of constituents. I truly believe that if the existing bodies, such as commissioners, the Ombudsman and the layers upon layers—Police Complaints Authority, Anti-Corruption Branch—were actually given the teeth that the people thought they had, or that even members of parliament thought they had, we probably would not even need to have this debate or this conversation about an ICAC.

As the Hon. Robert Brokenshire rightly pointed out, when we try to engage those many layers of so-called accountable and transparent bodies, it does quite often seem like a bit of a whitewash. It seems that there is no path to take, there is no pathway for people who have come with genuine concerns that would border on either professional misconduct or outright corruption. People have sought justice as whistleblowers, or those who have just been on the wrong side of a situation have raised these issues, exposed their treatment and carried the banner forward for what they considered to be a just outcome for them, only to see themselves going around in circles, sometimes for a decade, and running themselves into the ground, losing everything in the meantime, and quite often their families fall apart under the pressure. That is not good enough.

Of course, the media have played an important role in the campaign for an ICAC in this state as well, and I imagine only time will tell how this all plays out. I long ago came to the conclusion that no government would implement such a body for anything other than political purposes, and this government especially seems to care very little about true justice and more about appearing to be responsible for making tough decisions, usually to the detriment of average Joe—and I still sincerely wonder why. I go back to the WorkCover debate; I go back to the debates that we have had in here about child protection; and I go back to inquiries that we have had into the office of the Public Trustee. All of them left people with no better outcome than what they had started with in the first place and that is my concern with this ICAC.

I have a number of amendments that I will be moving that reflect exactly those concerns. As the Hon. Mr Brokenshire has just finished saying, if we are going to have one, then, for God's sake, let us make it work. Let us make it effective and let us make sure that this is not just another merry-go-round that people are going to jump on, with all the hope in their heart that they are going to be justly treated and have just outcomes delivered, only to find that it is just another smoke and mirrors activity.

No less than eight ICAC bills have come before this parliament previously, as the Hon. Mark Parnell pointed out, with one successfully passing in this place. These bills reflect the increasing demands from our constituents for greater government accountability, with many coming to believe that the rot of corruption has already set in, with only the symptoms so far exposed. Others who have found little relief with the existing complaints mechanisms, as I have said, and then discovered that this was their only option, have demanded a new body with real power and real teeth to be established.

More broadly, our constituents have no doubt been frustrated by the lack of outcomes in high profile cases of alleged corruption such as the Burnside council saga and the Eugene McGee case. Despite a ministerial investigation in the former and a royal commission in the latter, those involved believe that corruption has not been exposed and dealt with. Clearly a consensus has formed that a new anticorruption body is needed, and the government has finally listened, or I hope it has.

I will express my support for the ICAC model devised by the government having worked my way through the bill. I must say I was genuinely surprised at the model that was presented but I have found some problems that I will be addressing through amendments. The potential for the success of this ICAC rests upon three things, I believe. The individual chosen to be the commissioner, particularly the first commissioner, will be responsible for establishing the policies, procedures and staffing levels.

The bill proposes the Governor, on recommendation by the executive, appoint the commissioner for a term not exceeding seven years. The bill offers little guidance as far as the qualifications and qualities of the successful candidate, except to require seven years of legal practice and that he or she has been a former judge of a state, territory or commonwealth court. Additionally, serving judicial officers or members of parliament have been rightly excluded. Beyond this, however, the executive government is free to appoint whom they please.

While criticism will surely result from a partisan appointee, we cannot dismiss the possibility if this process remains. Given the status and powers of this particular commissioner, it is my position that the person appointed to be the commissioner should have the support of the parliament and not just the party with the majority in the House of Assembly. As such, as I said, I will be moving an amendment to replicate the appointment process for the Ombudsman and the electoral commissioner for the ICAC commissioner.

Essentially, the Statutory Officers Committee, a parliamentary standing committee, will inquire into and report on nominated candidates following which both houses of parliament must resolve their support for a preferred candidate. I would hope that the game of politics would not come into this appointment, given the importance of it and the fact that people have been screaming out for this for at least the six years that I have been in here.

I note that one of the concerns of the Attorney-General in our meetings has been that this could delay quite significantly the appointment of a commissioner, but I also note that within the bill there is the ability to appoint an acting commissioner for no more than a six-month period, which should give the standing committee and the parliament plenty of time to come to an agreement and be able to appoint the first fully-fledged commissioner for the South Australian ICAC.

This process ensures that the ICAC commissioner is not a partisan candidate and that there is adequate scrutiny of candidates' credentials and eligibility and ensures that all members of the parliament are consulted and engaged on the appointment of such an important position. This process was introduced by the Liberal Party in 1996 following a 1993 election promise to engage the parliament in future Ombudsman appointments; and, having read the Hansard of that debate (specifically the Ombudsman (Miscellaneous) Amendment Act), it is clear that this had bipartisan support then, as I hope it will again.

While the debate in 1996 reflects concerns about the potential for such a process to descend into partisan politics, history has shown that this parliament has largely taken this responsibility very seriously, and I am sure that it will do so when called upon, as I said, to determine the first and future ICAC commissioner of South Australia. Also potentially undermining the success of the ICAC is the question of funding, an issue which I note the Hon. Robert Brokenshire and the Hon. Mark Parnell also raised.

There is a saying that if you pay peanuts you get monkeys. We certainly did not want to pay peanuts when we were building our desal plant, but it seems that for our ICAC a paltry $4 million of initial funding is going to be sufficient—I doubt that very much. Even if it is just the initial funding, I believe it is indicative of this government's willingness to truly investigate serious allegations of corruption with just that much money set aside. It is, of course, my hope that the commissioner will be provided additional resources as required; and, if it was possible, I would move an amendment to the bill to ensure that he is.

The bill does propose to minimise some of the cost of the model chosen by staff in the Office of Public Integrity with employees seconded from the Public Service, as well as a few senior commissioner employees. From the briefing provided, I am led to believe that the former will be specifically hired by the Attorney-General's Department for that purpose. As a question to the minister, I seek clarification as to whether the commissioner or delegate will be involved in the selection of such employees.

From my research, I found this to be comparable with the staffing arrangements for the Ombudsman's office, as well as other statutory offices, such as that of the Equal Opportunity Commission. Having spoken to the Ombudsman, I am aware that it has worked quite well; however, I nonetheless remain concerned that public servants will be acting, effectively, as the gatekeepers to allegations of corruption while remaining answerable to the chief executive of the department from which they hail.

This raises issues around not only such employees having a divided loyalty and accountability structure but also the potential for a perceived conflict of interest if such an allegation relates to the Attorney-General's Department. For this reason, I will be moving an amendment to ensure that, whilst public servants are seconded to the Office of Public Integrity, the commissioner will act as their chief executive to the exclusion of the chief executive by whom they were technically employed.

Indeed, it would seem that the Attorney-General agrees that this is how it should be, stating in an answer to a question from the member for Bragg in a budget estimates committee:

...whilst the IPO and the ICAC are separate entities functionally, in the context of the bill they still sit under the one chief executive, in effect, which is the commissioner.

As such, I look forward to his support for that particular amendment. Another longstanding concern of mine which has the potential to limit the effectiveness of the commissioner is the protection, or lack thereof, of whistleblowers or anybody who comes forward with information that would assist the commissioner in an investigation into corruption.

Whilst the state encourages whistleblowers to come forward and make a public interest disclosure about corruption, misconduct and maladministration, if the whistleblower is then subject to reprisals for their disclosing, the state effectively washes its hands of the whistleblower and directs them to the courts or to the Equal Opportunity Commission for redress. So, basically, they get a pat on the back and, 'Here you go, off to the courts, and best of luck.'

Despite the bill before us seeking to protect those who make a complaint or assist the ICAC, the commissioner will be unable to assist in their protection or to pursue those who seek their revenge. Instead, this task falls to the whistleblower themselves, as already happens in this state and, given the subtle form that such victimisation can take, this is by no means easily done.

Given the difficulties of demonstrating victimisation without investigative powers, and the fact that the state encourages whistleblowers to come forward with what they know, it is my position that the state has a greater interest, and responsibility, in pursuing those who victimise whistleblowers. As such, I will be moving an amendment to both the victimisation provision in the bill and the Whistleblowers Protection Act to make it a criminal offence to victimise a whistleblower. This amendment is still being developed, if you like, as we go along with discussions between the Attorney-General and my colleagues in this house.

The state, the police, through the ICAC, if the victimisation is by a public servant or otherwise, will then be responsible for investigating and prosecuting those responsible. This will, in turn, assist victimised whistleblowers to seek compensation through the aforementioned mechanisms. Recognising this, my amendments will also limit the liability of employers, including the state, in criminal or tort proceedings if they have exercised all reasonable diligence to ensure that the employer or agent would not commit an act of victimisation.

A similar provision in the Equal Opportunity Act, which, to my understanding, already applies to victimisation proceedings pursued under that act, has been interpreted to require direct action by the employer and not simply have policies in place—because we do know that we now live mainly in a world of paper policy that rarely translates into practice, and that is especially where whistleblowers are concerned.

It is my hope that the availability of this defence will encourage employers, particularly government departments and agencies, to do all they can to protect those who disclose corruption and wrongdoing in their midst in the interests of the public. It should also be noted that the equivalent Queensland act, the Public Interest Disclosure Act, both criminalises reprisals against whistleblowers and provides a similar defence.

Whilst it did not prevent my support for the establishment of an ICAC, something that has concerned me is the potential for a person's reputation to be irrevocably damaged by being the subject of, or even just associated with, an ICAC investigation. I know this was a major contributor to the government's reluctance to establish an ICAC, with many government MPs expressing their reservations about the potential for a person's career to be left in tatters, even if the ICAC ultimately clears them of any wrongdoing. These reservations have obviously been reflected in the drafting of this bill, with hearings of the commission to be closed and a prohibition to be placed on publication of any matters relating to an ICAC investigation, including details of the original complaint that led to that investigation.

While this is obviously contrary to the media's interest, and I am surprised that the media have not been more vocal in their opposition given the headlines such hearings and allegations would generate, I do believe that this is appropriate and necessary to protect those who may well be innocent. Whilst I am confident that the South Australian media will respect the prohibition (or, at least, respect the potential gaol term that follows a breach), I do not believe the prohibition can extend interstate and, as such, if the allegation is sufficiently scandalous, it may still find its way into print. Further, being a user of Facebook and other social media, I am well aware of the potential for an interstate news article or even just a rumour, particularly of the allegation, to go viral. While individuals may be pursued and prosecuted, this is unlikely and by this stage the damage has already been done.

The bill attempts to address this by enabling the commissioner to make a public statement for the purpose of preventing or minimising the risk of prejudice to the reputation of a person if the commissioner considers it appropriate to do so in the public interest. However, this provision is seemingly encouraging a statement during the course of an investigation, which will by necessity be circumspect due to no findings having been reached, and the potential to adversely affect the potential prosecution; that is, if such considerations do not outweigh the desire to protect an individual's reputation and hence prevent a statement being made at all.

Whilst at that stage such considerations are proper, I believe the commissioner should also be encouraged to make a statement following an investigation if the investigation has cleared the individual concerned. As the Hon. Rob Lawson QC said when speaking to an earlier ICAC bill, there ought to be a mechanism which exists, first, for the purpose of investigation for prosecution and, secondly, for the clearing of people if their reputation deserves to be cleared.

To provide this mechanism I am considering moving an amendment to encourage the ICAC commissioner to make a public statement to restore the reputation of an individual if an investigation has cleared them and the allegations against them have been made public. Of course, this will not be appropriate in all cases, particularly if the findings were borderline or there is a prospect that the investigation may be recommended if new evidence comes to light; but for those whose reputations should be untarnished they deserve the commissioner's say so.

I was also considering that we should put a provision in here to ensure that, if the media has allocated half a page or a full page contributing to tarnishing a person's reputation, they should be required to dedicate the same amount of print space when a person is cleared as well; but apparently it is a crime under this bill to publish anyway. However, I do take very seriously the fact that quite often the media will print a story because it is sensational and, quite often, you never let the facts get in the way of a good story. This will also partly address those concerns about the potential damage of vexatious allegations, which I know the Attorney-General also shares.

I also briefly raise my concerns about the disregard for parliamentary privilege in the bill. In particular, my concern that members of parliament may be compelled by direction of the commissioner to report to the Office of Public Integrity an allegation of corruption that has come to their attention. This may well be by a constituent who, for a variety of reasons, may not want to be involved in reporting the allegation.

Given that a public officer, which a member of parliament is considered to be, may be compelled to provide details of the allegation sufficient to enable an investigation, including the names and positions of those involved, this may result in a member of parliament being required to breach the trust of their relationship with their constituent. We have protections in place for the privilege that exists between a legal practitioner and their client, yet the similar relationship that exists between members of parliament and some constituents may have been overlooked in this bill.

Additionally, the notion in the bill that the President of this council is somehow responsible to the Attorney-General and then the Premier to my mind offends the independence of this parliament and, importantly, the separation of powers between it and the executive. Having spoken to my colleagues, I am aware that I am not alone in having these concerns and I look forward to addressing them during the committee stage of the bill.

Finally, I wish to express my concern about the deficiency of the parliamentary committee, the Crime and Corruption Policy Review Committee, as it is currently known. From my reading, this committee will be limited to reviewing and reporting on the annual reports of the ICAC and the police and other reports required under the police and the various serious and organised crime acts. Whilst annual reports often do not receive the scrutiny they require, I am sure that our constituents expect greater oversight from this particular committee given that it is going to hold, probably, more power and influence than any other that we have ever established.

Given that we have locked the media out, and as such lost its scrutiny of the ICAC's performance, the parliamentary committee must have the teeth to ensure that the extensive powers which are extended to the ICAC and have recently extended to the police are being used appropriately and effectively. I am aware that amendments addressing this will be moved during committee and I look forward to that particular part of the debate. Subject to these amendments, I again express my in-principle support for the bill. I support the second reading of the bill generally, and again congratulate the government on introducing it. It is certainly not before time but, as they say, better late than never.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (12:11): I understand that there are no further second reading contributions to the bill so I would like to make a few concluding remarks and answer some of the questions that were asked in the debate. I thank all members who have contributed to the debate for their support for this bill. As the Hon. Stephen Wade said, this is an historic bill, a lot of work has been done to get to this stage and a lot of consultation took place throughout the drafting of the bill.

Consultation has continued since its introduction, and we will be moving some amendments in committee stage in response to that consultation because the government is obviously keen to make sure that this is the best model for anticorruption legislation that we can make. I would like to briefly address three questions that were asked by the Hon. Stephen Wade. As most of the matters will be dealt with in detail in committee, the first question was whether privatised former operations of government will be covered within the ambit of the bill, and the answer is yes. The bill covers a person performing contract work for a public authority or the Crown and also applies to conduct of a person who was a public officer at the time of its occurrence but who has since ceased to be a public officer.

The second question was whether there are public sector agencies or employees who are not covered by schedule 1. The fourth entry in schedule 1, column 1, states, 'any other public sector employee', and under column 2, 'the public sector agency that employs the employee', so that all public sector agencies and employees are covered. The last question about the ambit of the bill was who else might be declared by regulation to be a public officer. The government is confident that the relevant officers and authorities are captured by the schedule. However, out of an abundance of caution, I have been advised, should we have not covered all relevant existing officers in authority, we have allowed for additions by regulation. There is no hidden agenda in this and we are not expecting, at least in the short term, that there would be any reason to add further officers or authorities by regulation.

I would also like to address the question directed to the Attorney-General by the Local Government Association regarding clauses 38 and 39 of the bill. The LGA sought an assurance that the evaluation by the commissioner of practices, procedures and policies of local government will be restricted to the scope of the commissioner's functions; namely, to advance comprehensive and effective systems for preventing or minimising corruption, misconduct and maladministration in public administration. I have been advised that this is correct: the commissioner's ability to evaluate practices, procedures and policies of public authorities must, by a matter of statutory interpretation, be limited to his or her functions as set out in clause 6. A number of other questions were raised today; I would be pleased to take those on notice and provide answers through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I would like to make one brief comment and then put a short list of questions on notice. I make it clear that I do not expect a response today; they are not the sort of matters that could be dealt with today. The brief comment is actually coming out of the Estimates Committee B proceedings of the other place on Monday 25 June. The Minister for State/Local Government Relations said, in that committee:

The Office for State/Local Government Relations and the Local Government Association recently completed consultation with all councils on current governance issues, including the possible content of mandatory codes of conduct, conflicts of interest, confidential matters and meeting procedures. While we are still working through the detail of these issues and will continue to consult with the local government sector as we develop detailed responses on these issues—particularly on mandatory codes of conduct—councils on the whole have been very receptive to the idea of a transparent and independent process that ensures the integrity of all government decision making in South Australia.

They understand that if any government, state or local, wants a strong relationship with their community then the level of trust that we are making decisions in the public interest only is essential. Over the next six months or so the Office for State/Local Government Relations will be working closely with the Local Government Association to develop and finalise the regulations that will support a new era in councils' governance processes.

The reason I am quoting that is to highlight the fact in which I have expressed concern, and that is that the government has not effectively coordinated its work in the ICAC and its work in local government governance. It was the government's choice to include local government governance reform in this bill, and I believe they have not ensured that we will not actually have to revisit the matters dealt within these bills in the not too distant future.

The minister cleverly uses the words, 'Over the next six months, we'll have to develop and finalise the regulations that will support a new era...' It will not just be achieved by regulations. My understanding is that the Local Government Association and the government are having constructive discussions, but that some of the options actually involve changes to the Local Government Act. This bill amends the Local Government Act.

I will assert—and I anticipate that I will make similar comments again when, in the next six to 12 months, the government may well need to come back and make amendments to the Local Government Act as a result of its consultation with local government—that clearly, through this process, minister Wortley and the Attorney-General have not been consulting properly.

The Local Government Association has made it very clear that they have not been consulted properly, neither by their own minister or by the Attorney-General, and I think it is indicative of government that, whether it is the Cadell ferry, whether it is the South-East forests, or whether it is local governance reform, they seem to be pathologically incapable of consulting with the community they represent.

I now move to questions. This is a question on notice, and I do not expect an answer now. While on the LGA, does the government intend that the Local Government Governance Panel will continue to operate once the ICAC bill is passed? If so, what role does the government envisage for the panel? Secondly, does the Local Government Association support this ongoing role for the panel? For budgeting purposes I presume that the project director for the ICAC has prepared an indicative budget for the ICAC, so I ask, for 2012-13:

1. What is the budget for the ICAC?

2. What is the budget for the office of public integrity?

3. What is the FTE for the ICAC?

4. What is the FTE for the office of public integrity?

5. What has been allocated for each of the investigative, educational and preventive roles of the ICAC?

6. What is the estimated number of investigators to be employed directly by the ICAC, given that the Attorney-General claimed in the Sunday Mail of 5 June 2011 that the office will have around 20 investigators and other support staff?

7. What is the estimated additional cost of the expanded role of the Ombudsman foreshadowed in the Independent Commissioner Against Corruption Bill?

8. Given the expanded role, why has the Ombudsman's funding for the 2012-13 year actually been reduced?

9. What are the actual and budgeted funding and staffing levels of the Government Investigations Unit in 2011-12 and 2012-13?

10. What variations have been made to the budget of the unit as a consequence of the anticipated impacts of the establishment of an independent commission against corruption on the work of the unit?

The Hon. M. PARNELL: In terms of questions to put on the record now, I would be appreciative if the minister was able to respond in some detail to the submission of the Local Government Association. Its submission dated 7 June, which I understand has been sent to all members, contains a large number of suggestions and even proposed amendments to various clauses, some of which appear to have been picked up in the government's amendments, others of which have not. I do not necessarily need the rationale to be read into Hansard, but even a letter from the Attorney, outlining why he did or did not accept the points in this submission, would be helpful.

I want to ask one specific question as well, and again the minister can take this on notice: it relates to the coverage of the legislation, including its retrospective nature. Certainly it is well understood that the bill, if passed, will have a retrospective effect and will apply to the conduct of elected members who no longer hold office—so past conduct—so that is understood. However, I note that one of the legal firm's briefing papers sent out to its local government clients (and I am referring to Wallmans lawyers) a month or two back says the following:

Surprisingly, the bill also includes conduct of a person who was not an elected member or staff member at the time of the occurrence, that is, the occurrence the subject of a complaint, but who then subsequently become an elected member or a staff member.

I would like the minister to explain where the line is drawn in relation to conduct? Are we talking, for example, about conduct, to use the example of a member of parliament, that they were engaged in that did not relate to their work as a member of parliament but something they did in a previous life, which all of a sudden is now caught by this regime?

I do not fully understand how that is likely to work and in particular whether, for example, a person who might have been accused of embezzling money in a private or corporate situation and who then becomes elected as a member of parliament is caught by this regime, or is that circumstance still entirely the purview of the police and the regular criminal justice regime? I need a bit more clarification as to how that aspect of this bill is going to work.

The Hon. R.L. BROKENSHIRE: I also want to put some questions on notice in clause 1 in order to give the minister and the government a chance to respond when I expect we will get into the detail of the bill in the committee stage during the next week of sitting. I highlight those questions, as follows. Why not direct to ICAC but instead via the Office of Public Integrity, and to what degree will the commissioner therefore have full oversight? With regard to staffing, we would also like to know what the expected staffing will be, both seconded and permanent.

We ask what the annual budget will be into the forward estimates. I note that, in the 2012-13 budget, there are references only to the set-up of the commission and the OPI as a target, with no specific funding. We have seen what happens when no funding is announced for compensation or policing burden for such things as the marine parks proposal. So, I think it is only fair that the committee be informed about this with respect to the budget into the forward estimates. I also ask for an indicative salary bracket for the commissioner—what the government expects, in broad terms, it will have to pay for a commissioner. It is a senior position, and I think it is fair and reasonable—

The Hon. M. Parnell: A vice-chancellor's salary!

The Hon. R.L. BROKENSHIRE: We might have to have a go ourselves if it is that high. I would like to know, in an indicative way, what the salary bracket will be. Does the government intend to advertise this position within the state and nation and internationally? Once the bill is passed, will the government do what Premier Baillieu in Victoria has done today, that is, to announce an interim commissioner for six months or for some other interim period, or how does the government anticipate the set-up and starting structures with the commission?

Will there be only an annual report or will the OPI and ICAC be required on a more regular basis to publish statistics on complaints it has received and how it has dealt with those complaints? For instance, will the commissioner report annually or more frequently on the number of requests made to him or her, to make a public statement, and the times he or she accepted or declined that request?

Does the government contemplate any secondment at all of Anti-Corruption Branch police officers in the early stages or is the government going to take a wait-and-see approach? What rationale was there for the Police Ombudsman name change? Did the government consider any other changes to the Police Complaints Authority structure in the overall context of the proposals the government has put to us within the ICAC bill? I ask that the government highlight the importance of the OPI being sufficiently resourced to listen from start to finish with respect to the allegations of corruption, whether or not they are well-founded, in order to ensure some level of closure for complainants.

The following is a question on clause 5, but I think it would be fair to include it here in order to assist the minister and provide the minister with more notice. I will skip over paragraph (a), but clause 5(4)(b) provides:

(4) Maladministration in public administration—

(b) includes conduct resulting from impropriety, incompetence or negligence;

What is the rationale for including the word 'incompetence' there? Is that a precedent from interstate or from other ICACs? It seems to me to be risky, perhaps even for some of us in this place, that incompetence could be grounds for maladministration in public administration. I ask the minister: what criminal penalty will apply for someone found to have conducted maladministration in public administration?

My final two questions are as follows. Can the minister confirm that, in general, this bill does not criminalise corrupt conduct, rather that it adds new criminal penalties for failure to comply with the commission's directions; in other words, there are no substantive anticorruption offences created by this bill? Finally, based on the bill I put up, and some of the allegations from the government in opposing the bill, where the government said that this would become a 'lawyers' picnic' if we were to have an ICAC, can the minister explain to the committee what provisions the government has within the content of the ICAC bill to ensure that it does not become a lawyers' picnic?

The Hon. S.G. WADE: Mr Chairman, with your indulgence, I will just make a brief comment in response to the questions from Mr Parnell. Mr Parnell mentioned that he was happy for the responses to his questions to be conveyed by letter, rather than to be read in the house. Just as a brief comment, I commend the Attorney-General for the discussions that are going on with the opposition. I understand that the Hon. Ann Bressington is having discussions and I know the LGA has. With amendments, for example, the Hon. Ann Bressington has filed amendments and the Attorney-General has responded with a letter which is distributed to all members and I welcome that. I think that is a very helpful communication loop.

My concern with the Hon. Mark Parnell's comments is that he is raising a matter on the public record and he is suggesting that the response might not be on the public record. I just flag for the house's consideration that I think we also owe it to the public for them to know on what basis we make judgements.

Once we get to the stage where an amendment has been tabled and questions are asked in the house, perhaps the government might well want to correspond with Mr Parnell and we would certainly be happy to receive a copy of that correspondence, but I think it would still be good for the record to have a summary at least of the position, so that judges and other people who need to use the legislation understand what motivated the parliament.

Clause passed.

Clauses 2 to 4 passed.

Progress reported; committee to sit again.

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