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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-09-20 Daily Xml
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INDEPENDENT COMMISSIONER AGAINST CORRUPTION BILL

Committee Stage

Bill recommitted.

Clause 7.

The Hon. I.K. HUNTER: The government has a question which I would like to direct to the Hon. Mr Wade. The Hon. Mr Wade has stated that parliamentary confirmation is absolutely fundamental to the independence of an ICAC and that four out of five of them (meaning other jurisdictions that have an ICAC-type body in place, I imagine) require parliamentary confirmation. The other one requires parliamentary consultation. Could the honourable member please explain that statement? Which of the jurisdictions require parliamentary confirmation and which requires only consultation? Could the honourable member clarify exactly what he means by the term 'confirmation'?

The Hon. S.G. WADE: I am more than happy to answer the question but I remind the minister that it is not my amendment. It is not my bill. It is not my amendment. I am not sure in what capacity you are seeking to ask me the question.

The CHAIR: If you don't want to answer it, you don't have to answer it.

The Hon. S.G. WADE: I am happy to answer it.

The CHAIR: Perhaps you had better answer it.

The Hon. S.G. WADE: I just don't think it is orderly.

The CHAIR: Well, you can answer it. It is up to you. You said you are happy to answer it, so why don't you answer it?

The Hon. S.G. WADE: Okay, I will answer it then.

The CHAIR: If you are happy to, I would hate to make you sad. Be happy and answer it.

The Hon. S.G. WADE: I might just consult my colleagues. Is it orderly?

The CHAIR: I thought you said you were happy to answer it.

The Hon. S.G. WADE: I just don't want to set a precedent.

The CHAIR: You are not happy anymore.

The Hon. S.G. WADE: I don't want to set a precedent for the government to take the opportunity to debate issues that are clearly headed for a deadlock conference.

The CHAIR: You said you were happy to answer it. You are either happy to answer it or you are not happy to answer it.

The Hon. S.G. WADE: I will answer it.

The CHAIR: Okay. The Hon. Mr Wade is going to answer it.

The Hon. S.G. WADE: What I meant by parliamentary confirmation versus parliamentary consultation is that in those jurisdictions where a parliamentary committee or a parliamentary chamber has the capacity to veto an appointment, that is parliamentary confirmation. Where a parliamentarian only has the obligation to be consulted, that is parliamentary consultation. In the jurisdictions of New South Wales and Victoria, the parliamentary joint committee can veto the appointment and in Queensland the bipartisan support of the parliamentary committee is required for the nomination. Western Australia requires a majority of the standing committee and bipartisan support. In Tasmania it is a consultation context. The relevant minister is only required to consult with the bipartisan joint standing committee.

The Hon. T.A. FRANKS: I ask the minister: does that clarify for the government the difference between confirmation and consultation, and would that apply to other bills other than the one in front of us?

The Hon. I.K. HUNTER: I am advised that it has. We just needed to clarify what the honourable member meant in using the words 'confirmation' and 'consultation'. That has been helpful. We thank him.

The Hon. A. BRESSINGTON: I remind the minister that all that was laid out in my second reading speech and also when I moved the amendment myself.

The Hon. I.K. HUNTER: I would not want to ascribe the Hon. Ms Bressington's speeches to the Hon. Mr Wade and that is why we sought confirmation of what he thought.

Clause passed.

Clause 9.

The Hon. I.K. HUNTER: I move:

Page 15, line 30 [clause 9(1)]—After 'in writing' insert:

made at the time a person is appointed to be the Commissioner or Deputy Commissioner

This amendment clarifies that the pension scheme can only be applied to the terms of the commissioner's appointment at the time of his or her appointment.

The Hon. S.G. WADE: The minister failed to give the committee the background to this amendment, so I choose to do so. This amendment is a response to a question that I asked during debate on 4 September 2012. I asked: is it possible under clause 9(1) for the government's instrument to be used as an inducement to incumbents in terms of the application of the act during their term of service rather than at appointment? The Attorney-General's explanation, received by email on 17 September 2012, was:

Clause 9 was not intended to operate in the way that you suggest. It simply allows for the application of the Judges Pensions Act 1971 (the Act) as a condition of appointment. In the unlikely event of an ICAC reconsidering the conditions of his or her appointment, it is possible that a resignation and reappointment including the application of the Act could happen. If you seriously think that is a risk, we are happy to consider an amendment.

I do not recall having responded to that; nonetheless, I welcome the amendment and I support it.

Amendment carried; clause as amended passed.

Clause 54.

The Hon. I.K. HUNTER: I move:

Page 36, after line 7—Insert:

(2) Subsection (1) does not apply in relation to the publication of information in a report published by a parliamentary body or in a record of the debates or proceedings of a parliamentary body published by or under the authority of the body.

(3) If a person publishes, or causes to be published, defamatory matter in contravention of subsection (1), the defences to the publication of the defamatory matter that would, but for this subsection, be available to the person under section 25, 26 or 27 of the Defamation Act 2005 (and any other defences to the publication of the defamatory matter that correspond to any of those defences) do not apply.

(4) In this section—

parliamentary body means the Legislative Council, the House of Assembly or a parliamentary committee.

Section 54 makes it an offence to publish certain types of information about matters before the commissioner. This amendment makes it clear that the publishers of Hansard will not commit an offence under section 54. There was concern that publishers may be captured under the bill. This clause also makes it clear that if a person seeks to republish information from Hansard, that is in breach of section 54 and is also defamatory. The person does not have a defence to a defamation action on the basis that the material was taken from Hansard.

It is a paramount feature of this bill that a person's reputation should not be damaged by reason of their perhaps entirely innocent involvement in an ICAC investigation.

The Hon. S.G. WADE: I rise to speak on behalf of the opposition on this clause. As I understand it, this amendment seeks to do two things. First, subclause (2) would create an exemption from the offence provisions for parliamentary publications such as Hansard and committee reports. This is a common-sense amendment and in many ways is effectively consequential to the first amendment to clause 5A moved by the Liberal opposition and supported by this council, in spite of the opposition of the government.

Since the amendment to 5A ensured that parliamentary privilege is maintained, this amendment is logically consequential. It follows that parliamentary proceedings and published statements made under that privilege should also receive the same protection. Of course, the government amendment to 5A had wanted to censor parliamentary proceedings by requiring the government to first approve their publication where they related to disclosure information about a real or potential ICAC investigation.

Before I go on to comment on subclause (3), I would like to remind the committee how recently this has been dumped on us. On Tuesday, I think it was, we received the first thought bubble about defamation; then yesterday, at 12.30 in the early afternoon, we had the next version.

The Hon. K.L. Vincent: Here we go again!

The Hon. S.G. WADE: Here we go again, as the Hon. Kelly Vincent says. This is hardly a situation where the parliament can properly consider details of the implications of a proposed amendment. The amendment appears to have widespread implications on the publishing of information by individuals, media and other government bodies. Given that the government did not consult any other members, as far as I am aware, about the wording of this subclause before filing it on Tuesday, and then revising it on Wednesday, I can only assume that the government is intent on forcing this bill to a deadlock conference to resolve any outstanding issues in relation to it.

In spite of the fact that the government brought this in after the first full consideration of the bill—in other words, this is more than an afterthought; it is almost like a thought from the grave—it has already generated great concern not just here but nationally. Let me quote from today's Australian:

ICAC proposals 'akin to FBI under Hoover'

Prominent corruption fighters have criticised the South Australian Labor government over its bid to abolish defamation protections in cases involving graft allegations made in parliament or in open court.

Mr Jerrold Cripps QC, the former NSW Independent Commission Against Corruption commissioner, a former judge and a former head of the NSW Police Integrity Commission, said that it was 'disturbing'. He went on to say:

If they're going to say that anybody who repeats what someone has said in the parliament [can be accused], you might as well not have said anything in the parliament.

It went on:

Douglas Meagher QC, who served as senior counsel assisting the Costigan royal commission, compared the level of secrecy for the proposed ICAC to J. Edgar Hoover's FBI.

'That's highly dangerous,' said Mr Meagher, who advised the Victorian government over the establishment of its own ICAC.

'Politicians think they know it all, but they don't. They know very little about it [corruption investigations] and they make silly decisions like that.'

Mr Chris Merritt, the legal affairs editor of The Australian, wrote a piece—and I should stress that this is a comment, not a piece of news—

The Hon. A. Bressington: He is a barrister.

The Hon. S.G. WADE: He is a barrister, I am told by the Hon. Ann Bressington. His piece was headed 'South Australian MPs' protest will go nowhere'. I will quote two excerpts. The first states:

The legislation that will establish South Australia's anti-corruption watchdog is marred by what can only be described as a self-destructive obsession with secrecy.

I pause to remind honourable members that this ICAC is the only ICAC in Australia that has a ban on public hearings in relation to investigations. Extraordinary! Mr Merritt's article further states:

This legislation ignores the lessons from other jurisdictions where abuse has flourished when institutions were exempted from the normal layers of oversight that are the core of liberal democracy.

It says a great deal about the nature of the times—and the nature of the South Australian government—that such an authoritarian approach is tolerated.

I now turn to questions. Is subsection (3) in the amendment specifically targeted at the reproduction of parliamentary material by the media?

The Hon. I.K. HUNTER: My advice is that the amendment is targeted at particular defences that are available to anyone. The amendment is not targeted at particular institutions.

The Hon. S.G. WADE: I will just preface my remarks in the context of the petroleum bill, believe it or not. In the petroleum bill we were told at very short notice that a bill that we thought we were going to consider on 16 October would be considered on 19 and 20 September. Accordingly, members had to brief themselves up very quickly and perhaps were not always as briefed as they would like to be.

Likewise, I would remind the government that you have dumped this on us in the last day or two. I do not profess to have received any advice from the government as to the reasons for these amendments. I have not had any opportunities for briefing. I have had very limited opportunities to understand the full ramifications of this amendment vis-a-vis the Defamation Act, so I will be asking a series of questions and I expect them to be treated with respect, in spite of the disrespect this government has shown us in the way they have handled this amendment.

In that context, the questions may well reflect a lack of a full understanding of the Defamation Act, but that is your fault because this government fails to respect this council in the way that it handles amendments. If a person or corporate body reproduced parliamentary proceedings that related to material within the scope of clause 54, would they be committing an offence under subsection (1)? Would they lose the defence that is usually available to them under section 25 of the Defamation Act?

The Hon. I.K. HUNTER: In response to the question asked by the Hon. Mr Wade, I can advise that the answer is yes, but the honourable member ought to remember that, first, the matter must be defamatory and, second, there be no other defence available.

It is getting rather late for petulant displays, but let me say that the government has managed to brief other members of this chamber in time. If the honourable member wanted a briefing he could have availed himself of the one that was on offer. We also requested the Hon. Mr Wade to provide his questions in advance so that we could treat them with the respect that he is requiring, but he refused, so we are dealing with them as best we can now.

The Hon. S.G. WADE: I would certainly welcome the contribution of any member in the chamber who was offered a briefing from the government in relation to this clause. I might pause and give members that opportunity before I resume my other comments.

The Hon. A. BRESSINGTON: First of all, I would like to make the point that, to my knowledge, we were not offered a briefing. We were handed an amendment, and then an amendment to the amendment. That was while I was in the chamber. To the best of my knowledge, neither my staff nor I were offered a briefing or an explanation. There was no explanation attached to the amendment that we received. The honourable minister has made an assumption that, as far as I am concerned, is absolutely wrong.

The Hon. I.K. HUNTER: I did not want to get into personalities, but I would suggest that the Hon. Ms Bressington should check with her staff.

The Hon. A. Bressington: I was in a meeting with the Attorney-General. There was no briefing on this amendment.

The CHAIR: Order!

The Hon. I.K. HUNTER: I reiterate that she should check with her staff.

The Hon. S.G. WADE: Let me assure the committee that I did not receive an offer of a briefing in relation to this section. I received an invitation to submit in advance questions in relation to it, which I find incredibly arrogant. After all, this is the government that demanded that we pass the petroleum act in the week that it was tabled, such that I needed to put aside the ICAC Bill so that I could give attention to the petroleum act. Then they filed two different sets of amendments on Tuesday and Wednesday. Then we have the situation where I am working on the questions and I am asked to pass on the questions. I find that extraordinary.

I have never been told by a government in the past, 'Don't expect to ask questions without notice on the clauses; you have to put them in writing in advance.' I ask this minister to perhaps take a humble pill. It is actually displaying within a day more arrogance than Gail Gago showed in a year. I will not forgo my rights as a parliamentarian to suit the convenience of this minister.

The Hon. I.K. HUNTER: I think it is way past the Hon. Mr Wade's petulant hour; he should take a chill pill. The assistance the office was availing the Hon. Mr Wade of was to get in his questions in advance so that we could give him the respectful responses he is requesting; that is all.

The CHAIR: Let us move along.

The Hon. S.G. WADE: I have more questions on this amendment; in fact, a number of questions on this amendment. Section 27 of the Defamation Act provides a defence for revealing information in proceedings of public concern, which includes parliamentary committees. While the committee's own publications will be protected by the amendment, can the minister confirm that the usual defences against defamation for people testifying orally before a parliamentary committee would not be available to them if they referred to information that had not been authorised by the ICAC commissioner? Is this the same for submissions provided to a parliamentary committee in writing?

The Hon. I.K. HUNTER: I am just waiting for some advice.

The Hon. A. BRESSINGTON: Just while we are waiting for an answer, I would like to let the minister know that I have just rung my staff member and, no, we were not offered a sit-down briefing about this amendment at any time.

The Hon. I.K. HUNTER: I have contrary advice.

Members interjecting:

The CHAIR: We agree to disagree.

The Hon. I.K. HUNTER: My advice is that evidence can be provided and a parliamentary committee can publish that information, but it is the republication of defamatory material that is covered.

The Hon. S.G. WADE: But the point is that, if a parliamentary committee chooses to publish a submission or release its oral evidence, is that a parliamentary proceeding or is that some other document? That is what I am trying to get at.

The Hon. I.K. HUNTER: My advice is that subsection (2), which says subsection (1) does not apply, goes on to talk about the 'publication of information in a report published by a parliamentary body or in a record of the debates or proceedings of a parliamentary body published by or under the authority of the body'.

The Hon. M. PARNELL: As with other members, I am struggling to get my head around the implications of this amendment which, I note, is labelled set No. 12. I note that set 7, set 8 and set 12 arrived in the last two days. I am not sure what happened to 9, 10 and 11. If other members have them, they could perhaps share them.

I am just thinking in terms of the publication of parliamentary material. I know the minister has a fondness for social media and for Twitter. There are at least two parliamentary committees that now have Twitter sites and on those Twitter sites they advertise witnesses who will be heard, hearings that will be held and presumably would be advertising the location of websites on which written submissions are published. What implications does this provision have for the parliament engaging with the community through social media?

The Hon. I.K. HUNTER: My advice is that publications by parliamentary bodies cannot form an offence under section 54. The form of the publication is irrelevant.

The Hon. S.G. WADE: Just to confirm that my understanding is correct, is it the government's view that the actual delivery of the oral evidence and the delivery of the written submission would be protected under privilege, as it is under clause 5(a)?

The Hon. I.K. HUNTER: My advice quite roundly is yes.

The Hon. S.G. WADE: My question is: would the usual defamation defences available under section 27 of the Defamation Act to people appearing in local government proceedings be removed by this amendment where it related to a complaint or report potentially tendered to the ICAC, and could this possibly include a council or councillors disclosing that they had referred the matter on behalf of the council to the ICAC for investigation?

The Hon. I.K. HUNTER: My advice is that, if the honourable member is referring to council meetings, the same rules apply as to all other members of the public. There are no special privileges. If a council member was to commit an offence against section 54 there is no defence on the basis that he or she is a local government member.

The Hon. S.G. WADE: Given that the defences in section 25 of the Defamation Act also relate to court proceedings and clause 54 of the bill relates to matters that have been the subject of an investigation in the past, would the government's amendment mean that privileged court proceedings that result from an ICAC proceeding could no longer be published by the courts or media within the defences provided by absolute privilege? Is the government also saying that the courts themselves will lose their defences against defamation, leaving them liable if they publish judgements, sentencing remarks and other findings?

The Hon. I.K. HUNTER: I am advised that, if a court authorises a publication, an offence under section 54 would not have been committed.

The Hon. S.G. WADE: I gather that provides no assistance to the media that would currently be able to access fair reporting. Let us move onto the next one; we need to keep the questions moving. Would the amendment remove the defamation defences available to the Ombudsman under section 27 of the Defamation Act 1972 if they received a complaint or report from the ICAC commissioner and published a report about the subsequent investigation, as required, under the Ombudsman Act 1972?

The Hon. I.K. HUNTER: I am advised that the commissioner can authorise publication, first of all. Secondly, if the Ombudsman is required to publish such material by virtue of the Ombudsman Act, that publication would be an exception to the offence.

The Hon. S.G. WADE: On a number of the answers, the government seems to be focusing on the offences, whereas I am trying to focus on the defences. The Defamation Act, under section 27, provides:

(2) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was, or was contained in, [a fair report of any] proceedings of public concern;

In terms of proceedings of public concern, the definition includes:

(e) any proceedings in public of a court or arbitral tribunal of any country; or

(g) any proceedings in public of a local government body of any Australian jurisdiction—

and there are numerous others, let me assure you—from (a) to (o). However, this amendment states, 'if a person publishes', etc., 'these defences do not apply'. We are very concerned about a last minute, slapped-together amendment being brought into this parliament by a government that does not believe in an open and transparent ICAC in the first place.

I have already quoted very senior people around Australia who have expressed concern about this amazing proposal. I would encourage the government to not think so much about the offences and what other provisions might help a person. This amendment attacks the defences, and we think that is very concerning. We are disappointed that the government is not able to more fully answer the questions. Will this amendment affect civil defamation proceedings in any way?

The Hon. I.K. HUNTER: I will attempt an answer. I am advised that an offence must be committed. That is the first point and is a trigger for everything else that follows. If an offence is not committed by the publication, all defences and a defamatory action are available. It is only when an offence is committed, so when the commissioner has not authorised, or a court has not authorised, or the parliament has not authorised publication, the offender will not be able to point to the Hansard and say only that 'the defamatory material was published there and I'm only repeating it'. With regard to a civil defamation process, the amendment will only have an effect when a person who has committed an offence against section 54 is the defendant.

The Hon. S.G. WADE: I note that, in the amendment immediately after the reference to sections 25, 26 and 27 of the Defamation Act 2005, there are words in parentheses, which say:

(and any other defences to the publication of the defamatory matter that would correspond to any of those defences).

Can the government identify some examples of a defence outside the Defamation Act 2005 that would be affected by this amendment?

The Hon. I.K. HUNTER: I am advised that the Defamation Act does not override common law. It is common law defences that correspond with sections 25, 26 and 27 that are also excluded.

The Hon. S.G. WADE: That is the sort of information I would have liked to have received in a briefing. Would the amendment remove the defences available to a person under section 27 of the Defamation Act in an instance where a person publishes material that had previously been widely published in a newspaper but becomes subject to an ICAC investigation? This amendment is written so broadly. In other words, the same issue could be reported in the same way at two different points in time, but the defences available to that person would be no longer available to them once the ICAC commissioner decides to investigate a matter, is the apparent reading of the amendment.

The Hon. I.K. HUNTER: My advice is that the offence is inextricably linked with an ICAC investigation. If someone was to republish an article that had no reference to ICAC then there is no offence. If the article being published was printed some time before the ICAC then, of course, it probably would not mention the ICAC.

The Hon. S.G. WADE: I would like to turn my attention now to the substantive provision, clause 54. Can the ICAC commissioner give authorisations under clause 54 which might be to a class of people or to unspecified persons involved in specified activities?

The Hon. I.K. HUNTER: My advice is yes.

The Hon. S.G. WADE: I do not have any further questions on this clause.

Amendment negatived; clause passed.

Clause 58.

The Hon. I.K. HUNTER: Mr Chair, I think we are on clause 58 now and I understand the opposition wishes to put a question about this clause.

The Hon. S.G. WADE: Thank you, minister. The clause was explained in our last meeting, but I was wondering whether it is the government's intention to declare a scheme for payment to public office of legal costs otherwise not covered on a similar basis for members of the South Australian Public Service?

The Hon. I.K. HUNTER: My advice is that the answer is yes.

Clause passed.

Schedule 3.

The Hon. I.K. HUNTER: I move:

Inserted Division 2 section 15R [inserted section 15R(3)(b)]—Delete paragraph (b) and substitute:

(b) to obtain—

(i) information classified as criminal intelligence under an act; or

(ii) information the release of which—

(A) may, in the opinion of the Commissioner of Police, prejudice a South Australia Police investigation; or

(B) may, in the opinion of a person in charge of an investigation being carried out by another body established for law enforcement purposes, prejudice the investigation; or

The intent of this amendment to clause 50 of the schedule is to ensure that information that is classified as criminal intelligence or information which may prejudice a South Australia Police investigation cannot be provided to the crime and public integrity policy committee.

The Hon. S.G. WADE: Honourable members would have recalled the discussion about this clause on previous occasions. I would like to thank the officers of the Attorney-General and remind the government of the benefit of consultation with the opposition.

The Hon. I.K. HUNTER: We are always mindful of consultation, sir.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

Delete my previous clause 68A relating to victimisation.

The Hon. I.K. HUNTER: I am advised that this clause was treated as consequential to [Bressington-2] 4 but it was not, in fact, consequential, so the government seeks a recommittal of this clause of the schedule. The government is opposed to the inclusion of an offence of victimisation of the Whistleblowers Protection Act because the government has already committed to asking the commissioner to conduct a review of that legislative scheme. The inclusion of a new offence within that scheme before a wholesale review of the act is not good practice.

The Hon. A. BRESSINGTON: Following negotiations with the government, I indicate that I would be seeking to have this section deleted, which would have made it a criminal offence to victimise a whistleblower under the Whistleblowers Protection Act. As members may recall, an identical offence inserted in the body of the bill which decriminalised the victimisation of someone assisting the commissioner will remain.

Whilst this will not capture everyone who may have relied upon the additional protection in the Whistleblowers Protection Act, it will nonetheless protect many whistleblowers who disclose corruption and maladministration to the commissioner or the Office of Public Integrity.

This compromise is reliant upon the commitment by the Attorney-General to have the independent commissioner against corruption undertake a review of the Whistleblowers Protection Act, a commitment that I have successfully sought to be codified in this bill. Given that every other state has an offence comparable to what I have proposed, I am confident that this review will recommend making it an offence to victimise a whistleblower, so I am moving to have that section deleted.

The Hon. S.G. WADE: I indicate that the opposition supports the government's suggestion that this be removed. We think it is appropriate to consider the whistleblowers act in a broader context. I should say that our support for the withdrawal is conditional on the maintenance of the review. We are very mindful of the fact that the Hon. Ann Bressington had commitments from this government to review the whistleblowers act as long as four years ago, I think.

We do believe that to hold this government to account you actually need something in legislation. We appreciate the argument of the government in terms of a rational reform of the whistleblowers act, including in terms of victimisation offences, so we support the Hon. Ann Bressington's amendment.

Motion carried.

The Hon. I.K. HUNTER: I move:

Inserted clause 68A (insertion of section 13) [clause 68A, inserted section 13(1)]—Delete 'after the commencement of this section' and substitute:

after the first appointment of an Independent Commissioner Against Corruption under the Independent Commissioner Against Corruption Act 2012

This amendment sensibly starts the time for the review of the whistleblowers act to after the appointment of the commissioner. I understand there is broad agreement for this.

Amendment carried.

The Hon. I.K. HUNTER: I will not be proceeding with amendment No. 2 [AgriFoodFish-8] and instead will be supporting the amendment which will be moved by the Hon. Ms Bressington.

The Hon. A. BRESSINGTON: I move:

Inserted clause 68A (insertion of section 13) [clause 68A, inserted section 13(3)]—Delete:

', within 12 months of the commencement of this section,' and substitute:

, within 12 months of the first appointment of an Independent Commissioner Against Corruption,

Amendment carried; schedule as amended passed.

Bill reported with amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (17:58): I move:

That this bill now be read a third time.

Bill read a third time and passed.

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