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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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INDEPENDENT COMMISSIONER AGAINST CORRUPTION BILL

Second Reading

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) (15:38): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Independent Commissioner Against Corruption Bill 2012 seeks to establish in South Australia an independent body focussed entirely on preserving and safeguarding confidence and the integrity of the functions performed by public officers, agencies and authorities in the State of South Australia.

The Independent Commissioner Against Corruption Bill 2012 proposes to achieve this by establishing the Independent Commissioner Against Corruption and the Office for Public Integrity. To facilitate this and to take the opportunity to strengthen and improve existing legislative mechanisms regarding the functions of public administration, the following Statutes are to be amended: the Australian Crime Commission (South Australia) Act 2004, the Child Sex Offenders Registration Act 2006, the Correctional Services Act 1982, the Criminal Investigation (Covert Operations) Act 2009, the Criminal Law Consolidation Act 1935, the Criminal Law (Forensic Procedures) Act 2007; the Defamation Act 2005, the Freedom of Information Act 1991, the Legal Practitioners Act 1981, the Listening and Surveillance Devices Act 1972, the Local Government Act 1999, the Ombudsman Act 1972, the Parliamentary Committees Act 1991, the Police Act 1998, the Police (Complaints and Disciplinary Proceedings) Act 1985, the Protective Security Act 2007, the Public Finance and Audit Act 1987, the Public Sector Act 2009, the Shop Theft (Alternative Enforcement) Act 2000, the State Records Act 1997, the Summary Offences Act 1953, the Terrorism (Preventative Detention) Act 2005, the Whistleblowers Protection Act 1993 and the Witness Protection Act 1996.

I note for the sake of completeness that a separate companion Bill, namely the Telecommunications (Interception) Bill 2012, will also shortly be introduced.

The primary objects of this Bill are to establish the Independent Commissioner Against Corruption ('ICAC') and the Office for Public Integrity ('OPI'). The public officers, the public authorities responsible for the officers, and the Ministers responsible for the public authorities to which the functions of the ICAC and the OPI will apply, are set out in Schedule 1 of the Bill. Further, a private individual may also be subject to an ICAC investigation into corruption, where their alleged corrupt conduct is in connection with a public officer, inquiry agency or public authority exercising a function of public administration.

The functions of the Independent Commissioner Against Corruption ('the ICAC') are designed to further:

the identification and investigation of corruption in public administration; and

the prevention or minimisation of corruption, misconduct and maladministration in public administration, including through referral of potential issues, education and evaluation of practices, policies and procedures.

The functions of the Office for Public Integrity ('the OPI') are to manage complaints about public administration with a view to:

the identification of corruption, misconduct and maladministration in public administration; and

ensuring that complaints about public administration are dealt with by the most appropriate person or body.

Whilst the ICAC may perform functions under this measure in relation to any issue of corruption, misconduct or maladministration in public administration, it is intended that the primary object of the ICAC be to investigate serious or systemic corruption. Serious or systemic misconduct or maladministration however, is to be referred to the relevant body, with the ICAC giving directions or guidance to the body or exercising the powers of the body, where appropriate.

Despite the primary object of the ICAC being to investigate corruption in public administration, having the authority to act on conduct amounting to maladministration and misconduct is necessary. This is because conduct amounting to maladministration or misconduct may be indicative of an increased risk of corruption or may be evidence of an incipient culture of corruption.

I wish to make clear that the ICAC will perform an investigative role and will not have any capacity to lay charges or prosecute a matter, this responsibility will remain with existing law enforcement and prosecuting agencies. Further the OPI will not be able to resolve complaints or reports about public administration. The OPI will instead act as a clearing house so to speak, referring complaints and reports to existing agencies and authorities for action (where appropriate).

Generally speaking, corruption in public administration has often been described as a crime of the powerful, with no specific victim identifiable other than the community or public at large. At its worst, it can undermine the rule of law and destroy public confidence in governments and public institutions and agencies. Corruption in public administration also diverts or eats away at the limited financial resources of a government utilising public funds to meet the needs of essential services such as hospitals and schools.

Unlike some States, South Australia has fortunately thus far not been in a circumstance where cases of corruption, be it systemic or otherwise, have required an anti-corruption body to be established so as to attempt to restore faith and confidence in public institutions. Given this, some may question why an integrity body such as the ICAC is required in South Australia. My answer to that is that with modern society becoming increasingly complex and the financial resources of public funds being stretched to meet the ever increasing needs for essential government services, the temptation to engage in corrupt conduct for personal gain by abuse of public office will exist. A modern and sophisticated society should pre-empt this risk and proactively act to safeguard and preserve community confidence in the integrity of public administration. Establishing an ICAC constitutes that pre-emptive strike and safeguard.

Other States already have or are in the process of establishing, State based anti-corruption or integrity commissions. In NSW, the Independent Commission Against Corruption was established in 1989 in response to a reputation being acquired around Australia, and indeed overseas, at that time that some people in high office in that State were susceptible to impropriety and corruption. History later revealed this to be true.

The Crime and Misconduct Commission was established in Queensland in 2001.The Crime and Misconduct Commission is also an Independent Commission, exercising the powers of a Standing Commission of Inquiry with a broad mission to oversee and investigate allegations of public sector misconduct and major organised crime.

The Corruption and Crime Commission was established in Western Australia in 2004, replacing the Anti-Corruption Commission. The Corruption and Crime Commission was established due to a central recommendation of the Interim Report of the Kennedy Royal Commission. The need for this change was reported as being due to identifiable flaws in the structure and powers of the Anti-Corruption Commission, bringing about such lack of public confidence in the process for the investigation of corrupt and criminal conduct that the establishment of a new permanent body was necessary.

Most recently, the Parliament of Victoria has enacted the Victorian Inspectorate Act 2011 and the Independent Broad-based Anti-Corruption Commission Act 2011, commonly referred to as 'the IBAC', to establish two new oversight bodies. The IBAC will have a broad jurisdiction responsible for investigating, exposing and suppressing corruption involving or affecting all public officials in Victoria.

In terms of the Commonwealth, currently there is no specialised body dedicated to exposing and investigating corruption. Instead, the Commonwealth relies on a multi-agency approach, vesting responsibility for corruption prevention and detection with a number of Commonwealth agencies. A major development in this area has been the launch of a discussion paper by the Commonwealth Attorney-General, Nicola Roxon MP, on 19 March 2012, seeking submissions and public feedback for use in developing Australia's first national Anti-Corruption Plan, in order to strengthen Australia's existing governance arrangements by developing a Commonwealth policy on anti-corruption.

The Australian Crime Commission Act 2002 is the most relevant national legislation. This was enacted in accordance with an agreement reached between the then Prime Minister John Howard and the Premiers of the States and the Chief Ministers of the Territories. The establishment of the Australian Crime Commission combined the functions of the National Crime Authority, the Australian Bureau Crime Intelligence and the Office of Strategic Crime Assessments, as a statutory authority to combat serious and organised crime.

The Australian Crime Commission replaced the National Crime Commission with functions in relation to both criminal intelligence and the investigation of federally relevant criminal activity. In the opinion of many, including my own, this cooperative legislative scheme between the States and Commonwealth has been successful in meeting its objectives and obtaining the evidence and information to assist law enforcement agencies across Australia. Key components of the Australian Crime Commission model that have proven to be successful in practice have been adopted for use in this Bill.

I will now summarise the evolution of this Bill and the extent of consultation undertaken by this Government. The model proposed best meets the current and future needs and expectations of the citizens of South Australia.

In August 2009, the then Premier, the Honourable Michael Rann MP, called for the introduction of a national anti-corruption commissioner. After the 2010 election, once appointed as Attorney-General, I publicly supported the former Premier in advocating for a national anti-corruption commission. Accordingly, in May 2010, I raised the establishment of a national anti-corruption agency at a meeting of the former Standing Council of Attorneys-General, where I submitted that South Australia would be interested in working with the Commonwealth, State and Territory Governments to explore the feasibility of establishing a national anti-corruption authority with sufficient powers and resources to investigate allegations of corruption at the Commonwealth, State and Local Government level. Ministers present at this meeting noted the proposal. However, no further action was taken.

Detecting an overall reluctance to implement a national corruption watchdog at that point in time, I sought to progress the matter at a State level by announcing on 6 May 2010 a review of the operation and effectiveness of South Australia's existing public integrity system. The review called for submissions from a number of key agencies to be provided by 14 June 2010. That review examined the existing framework of integrity rules and enforcement bodies in order to identify gaps, weaknesses and opportunities to strengthen the existing system. It culminated in the preparation of a discussion paper entitled, 'An Integrated Model: A review of the Public Integrity Institutions in South Australia and an integrated model for the future' (the 'Discussion Paper').

The Discussion Paper set out 31 recommendations for the enhancement of South Australia's public integrity system. Those recommendations were grouped under the following sub-headings:

The Legislature;

The Executive and public sector;

Local Government;

South Australia Police;

The Auditor-General;

The Ombudsman;

Other Statutory Authorities;

A Public Integrity Office; and

A Commissioner for Public Integrity.

The Discussion Paper was publicly circulated and submissions sought by 25 March, 2011 and a total of 26 submissions were received. The majority of the received submissions were broadly supportive of the proposed changes and those that recommended legislative reform were, for the most part, consistent with the recommendations made in the Discussion Paper. However, as a result of the consultation process, some of these recommendations were either abandoned or modified to better achieve the intended purpose.

On 24 October 2011 Cabinet approval was given to draft a Bill and during the drafting process we continued to consult with the public agencies and authorities that will be affected by the scope of this Bill. Consultation also occurred with a number of senior individuals within the legal profession. I wish to thank all of the individuals, agencies and authorities who provided their invaluable feedback through my Department on the draft Bill.

I now turn to the main features of the proposal.

Before I proceed any further, however, I wish to clarify that references in my speech to the Police Ombudsman, are to be considered as references to the Police Complaints Authority. This is because in the consequential amendments, set out in Schedule 3 of the Bill, it is proposed to change the name of the Police Complaints Authority to the Police Ombudsman.

The Independent Commissioner Against Corruption

Part 2 of the Bill sets out the proposed structure of the ICAC, commencing with his or her functions and how they are to be exercised. It is to be noted that in performing these functions, examinations relating to corruption in public administration must be conducted in private. This Bill does however allow the ICAC to make public statements, which I will address shortly.

The functions of the ICAC are summarised as follows:

once corruption is identified and investigated, to refer it for prosecution or to refer it to SAPOL or the Police Ombudsman for investigation and prosecution;

to assist inquiry agencies and public authorities to identify and deal with misconduct and maladministration in public administration;

to give directions or guidance to inquiry agencies and public authorities, and to exercise the powers of inquiry agencies in dealing with misconduct and maladministration in public administration, as the ICAC considers appropriate;

to evaluate the practices, policies and procedures of inquiry agencies and public authorities, with a view to advancing comprehensive and effective systems for preventing or minimising corruption, misconduct and maladministration in public administration;

to conduct or facilitate the conduct of educational programs designed to prevent or minimise corruption, misconduct and maladministration in public administration;

to perform other functions conferred on the ICAC by the measure or any other Act.

Further, at the request of the Attorney-General, the ICAC may undertake a review of a legislative scheme related to public administration and make recommendations arising from that review.

It should be noted that the ICAC is not subject to the direction of any person in relation to any matter, including, the manner in which functions are carried out or powers exercised under this measure or any other Act. The ICAC is also not subject to the direction of any person in relation to the priority given to a particular matter. In order to ensure efficiency, however, the Bill does require the ICAC to deal as expeditiously as is practicable with allegations of corruption.

Part 2 of the Bill also sets out the eligibility and conditions of appointment for the ICAC, Deputy ICAC and his or her employees. Of particular note is the fact that the ICAC may engage employees on terms and conditions determined by the ICAC and that these employees are not Public Service employees, but are taken to be public sector employees for certain purposes. This distinction is necessary in order for the ICAC to attract the best and most experienced candidates, ordinarily difficult to attract due to their specialised areas of expertise being in short supply, particularly when competing with the private sector.

The Office for Public Integrity

Part 3 of the Bill sets out the proposed functions and structure of the OPI. Whilst separate from the ICAC, in terms of staff and functions, it is responsible to the ICAC for the performance of these functions, which are as follows:

to receive and assess complaints about public administration from members of the public;

to receive and assess reports about corruption, misconduct and maladministration in public administration from inquiry agencies, public authorities and public officers;

to make recommendations as to whether and by whom complaints and reports should be investigated; and

to perform other function assigned by the ICAC.

As already stated, the OPI will not have any capacity to resolve complaints or reports about public administration. Rather it will complement existing mechanisms by referring a complaint or report received to the appropriate inquiry agency or public authority. This means that members of the public can and should still approach the agency or an authority such as the Ombudsman with their complaints directly. However, when a complainant is not sure which public agency or authority to approach or does not wish to do so directly for whatever reason, the OPI is the place to go for assistance. Unlike the ICAC, staff of the OPI will be comprised of Public Service employees, aside from those employees of the ICAC that are assigned to assist the OPI, where required.

Procedures and Powers

Part 4 of the Bill sets out the procedures and powers for both the OPI and the ICAC.

Firstly, in terms of managing complaints received from the public, there is a requirement that a system for receiving those complaints be established for the OPI.

Secondly, the ICAC, once appointed, must prepare directions and guidelines governing reporting to the OPI of matters that an inquiry agency, public authority or public officer reasonably suspects involves corruption, misconduct or maladministration in public administration. The directions and guidelines are to address which type of matters must be reported to the OPI and provide guidance as to how this is to be undertaken.

In any event, on receiving a complaint or report, the OPI must undertake an assessment according to the criteria in Division 2 of Part 4 and action the complaint or report accordingly, depending on whether the matter relates to a potential issue of corruption as opposed to misconduct and maladministration.

The action that can be taken by the OPI, once a matter is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution, is that the matter must be either investigated by the ICAC or referred to SAPOL or the Police Ombudsman (if the issue concerns a police officer or special constable) or other law enforcement agency. If, however, the matter is assessed as raising a potential issue of misconduct or maladministration in public administration, the matter may be referred to an inquiry agency or public authority, with directions and guidance, in respect of the matter. Where a matter is referred to an inquiry agency, the ICAC may also exercise the powers of the agency. Finally, where a matter is assessed as trivial, vexatious or frivolous, or has been previously dealt with and there is no reason to re-examine, or for good reason no further action should be taken, the OPI need not deal with the matter.

Investigations into corruption conducted by the ICAC will be conducted in private. This is because persons under investigation by the ICAC have not been charged with any criminal offence. As is currently the case with criminal investigations undertaken by SA Police, a suspect is publicly identified once an investigation is completed and a charge or charges have been laid (subject of course to any suppression order that may be in place). To make an investigation undertaken by the ICAC into corruption public, would prematurely and unnecessarily prejudice the reputation of a person or person, who may or may not end up being charged with any offence.

Under the process set out in this Bill, once a matter investigated by the ICAC has been referred to SA Police for determination as to whether, based on the evidence collected by the ICAC, a charge or charges are to be laid, the normal processes and procedures of a criminal prosecution will apply. In other words, subject to any suppression order, the charge or charges and identity of the accused will then become public and the matter will proceed as per any other criminal offence, through the criminal justice system to finalisation.

In order to protect the integrity of investigations being conducted by the ICAC, subject to an order of the court or judicial officer to the contrary, proceedings for an application for a warrant or injunction under the measure, proceedings for contempt of the ICAC and other proceedings under the measure must be heard in private.

The Bill does, however, permit the ICAC to make a public statement in certain circumstances. The ICAC may make a public statement in connection with a particular matter if, in the ICAC's opinion, it is appropriate to do so in the public interest, having regard to the following:

the benefits to an investigation or consideration of a matter under the measure that might be derived from making the statement;

the risk of prejudicing the reputation of a person by making the statement;

whether the statement is necessary in order to allay public concern or to prevent or minimise the risk of prejudice to the reputation of a person;

the risk of adversely affecting a potential prosecution.

Investigations

Subdivision 2 sets out the process, powers and procedures in relation to corruption investigations by the ICAC. Generally speaking, an investigation into corruption in public administration may be triggered in three ways, namely:

a complaint or report received by the OPI which has been assessed and forwarded to the ICAC; or

the ICAC exercising an own-motion initiative; or

the Attorney-General reporting a matter directly to ICAC for his or her consideration.

The ICAC will be assisted in investigations by 'investigators' and 'examiners'. It is envisaged the investigators will be out in the field, collecting evidence and speaking with witnesses. A police officer seconded to the ICAC will automatically be an investigator under this Bill and it is intended that the officer should carry across all of his or her SAPOL powers for use in ICAC investigations if required. All other persons employed by ICAC for this purpose must be appointed to the role by the ICAC and issued with an identity card. By contrast, an examiner (who is responsible for conducting examinations) will be a role that can be undertaken by the ICAC, Deputy ICAC, an investigator appointed to this role by the ICAC and any other external person appointed to this role by the ICAC.

Once an investigation is commenced by the ICAC, the Bill provides for various powers (some of a coercive nature) depending on whether the investigation is elevated to a formal examination or not. The exercise of powers also differs depending on whether the place to be searched in an investigation for alleged corruption is a public office or vehicle or a private place or vehicle. To search and seize items from a private place or vehicle a warrant issued by a judge of a Supreme Court is required, whereas in relation to public place or vehicle, a warrant may be issued by the ICAC.

Standard operating procedures to be developed by the ICAC will provide guidance about how the powers are to be used in an investigation. These guidelines and procedures will be made available to the public, once they are developed.

The ICAC must personally head, or oversee the Deputy ICAC or an appointed examiner nominated by the ICAC to head, an investigation. Legal practitioners may be appointed to assist as counsel to the ICAC during an investigation.

Investigators will have the power to require a person to state all or any of the person's personal details and to produce evidence of those details if the investigator reasonably suspects that the person has committed or is about to commit either corruption in public administration or an offence against the measure or may be able to assist an investigation.

Part 4 Division 2 also set out the procedures for investigators to enter and search places or vehicles. For public agencies, public authorities, public officers or public vehicles, the ICAC may either by application of an investigator, or on his or her own initiative, issue a warrant authorising power to enter or search. However, if an investigator wishes to enter and search a private place or vehicle, an application for a warrant must be made to and granted by a judge of the Supreme Court.

A warrant may only be issued in either case if the ICAC or the judge is satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration.

Once issued, a warrant authorises an investigator to:

enter and search and if necessary use reasonable force to break into or open a place or vehicle; part of, or anything in or on, a place or vehicle; and

give directions with respect to the stopping or movement of a vehicle; and

while inspecting the place or vehicle—

to take photographs, films or audio, video or other recordings; and

to examine, copy or take extracts from a document connected with the investigation or any other investigation into corruption in public administration; and

to examine or test any thing connected with the investigation or any other investigation into corruption in public administration, or cause or require it to be examined or tested; and

if the investigator reasonably suspects that a person who is or has been on or in the place or vehicle has on or about his or her body evidence of a prescribed offence, to search the person; and

to seize and retain anything that the investigator reasonably suspects has been used in, or may constitute evidence of, a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator; and

to seize and retain anything that the investigator reasonably suspects has been used in, or may constitute evidence of, an offence other than a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator, if the investigator reasonably believes that it is necessary to do so in order to prevent its concealment, loss, mutilation or destruction or its use in committing such an offence.

For the sake of completeness, it should also be noted that investigators will also have the power to seize and retain items found during an investigation, and to utilise listening and surveillance devices under consequential amendments to the Listening and Surveillance Devices Act 1972. The power to utilise telephone intercepts will also be made available to investigators under the Telecommunications (Interception) Bill 2012.

As already stated, there is a mechanism in the Bill for an examination into alleged corruption to be undertaken. The formal examination procedure is set out in Schedule 2 of the Bill. The provisions in Schedule 2 mirror Part 3 (Examinations) of the current Australian Crime Commission (South Australia) Act 2004 (the 'ACC Act') with two discrete changes.

Schedule 2 of the Bill provides for the examiner to order a witness who is considered to be in contempt to apply to the Supreme Court for the person to be dealt with in relation to the contempt. Conduct which amounts to contempt for the purposes of the measure is defined at clause 12 of Schedule 2. Where an examiner proposes to have a person dealt with for contempt by the Supreme Court, he or she may, during the hearing concerned, direct a police officer to detain the person for the purpose of bringing the person before the Supreme Court.

Once before the Supreme Court, the Court may do one of two things. The Supreme Court may direct that the person be released from detention on condition that he or she will appear before the Court in relation to the application or order that the person continue to be detained until the application is determined. This approach reflects the amendments to the ACC Act recently passed in the Statutes Amendment (Serious and Organised Crime) exercise.

A second change to the current ACC Act is in relation to exemptions from making a disclosure. For the purposes of an examination, a further exemption has been added to enable a person to make a disclosure to another person or body for the purposes of determining whether the person is entitled to obtain an indemnity for legal costs.

The ICAC has also been given the power to require a South Australian law enforcement agency, inquiry agency or public authority to refrain from taking action in respect to a matter under investigation by the ICAC or to conduct a joint investigation with the ICAC. This is a necessary requirement should an investigation reveal corrupt conduct in addition to other criminal offences or vice versa. In such cases, it may be necessary for one investigation to take precedence over the other, or for joint investigations to be conducted simultaneously.

In addition, the ICAC may apply to Supreme Court for an injunction restraining a person from engaging in conduct that is the subject of, or affects the subject matter of, an investigation or proposed investigation to be undertaken by the ICAC.

In any event, on completing an investigation or at any time during the investigation, the ICAC may refer a matter to a relevant law enforcement agency for further investigation and potential prosecution and/or refer it to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.

There are also extensive accountability provisions under Part 5 of the Bill including reporting to Parliament annually and an independent review of the exercise of the ICAC's powers. Telephone intercepts and use of surveillance devices are, of course, required to be audited by an independent review agency, as is already the case for SA Police. Further, the ICAC must keep the Attorney-General informed of the general conduct of the functions of the ICAC and the OPI on a general basis and provide information at the request of the Attorney-General. The Attorney-General is, however, prohibited from seeking information identifying or about a particular matter subject to assessment, investigation or referral under the measure.

Finally, it is proposed to establish by amendment to the Parliamentary Committees Act 1991, a Crime and Corruption Policy Review Committee. This Committee will be tasked with the function of examining each annual and other report laid before both Houses of Parliament that are prepared by the ICAC, the Commissioner of Police or the Police Ombudsman. I will return to the functions of this Committee in more detail when I discuss the consequential amendments under Schedule 3 of this Bill.

Referral of misconduct or maladministration

Subdivision 3 governs the referral by ICAC of a matter to an inquiry agency or public authority and establishes the criteria for doing so.

Prior to referring a matter to an inquiry agency, which the Bill defines as the Ombudsman, Police Ombudsman or Commissioner for Public Sector Employment, the ICAC is required to consult with the agency and take its views into consideration. Once consultation has occurred, the ICAC can give directions and guidance, including a requirement to submit a report or ongoing reports or recommendations as to the action to be taken and the period within which this is to occur. The ICAC may also exercise the powers of an inquiry agency in respect of a matter referred to the inquiry agency.

Where the ICAC is dissatisfied with the action taken after a matter has been referred, the Bill then sets out an escalating process for raising issues with the agency in question, then its Minister and then Parliament, if the ICAC is not satisfied that the agency has duly and properly taken action in relation to a referred matter.

A separate process is set out in the Bill for referrals to public authorities (as defined in Schedule 1) and imposes the same obligation upon the ICAC to consult with the authority and take into account the views of the authority on the matter prior to referral. For public authorities, however, there is no capacity for the ICAC to exercise the powers of the authority. A further point of distinction is that the Bill does not permit the ICAC to give directions to the Governor, a judicial officer or the Attorney-General in relation to a matter concerning the Governor or a judicial officer. This is necessary to maintain and protect the integrity of the separation of powers.

Request for Auditor-General to examine accounts

Subdivision 4 authorises the ICAC, where appropriate to do so, in respect of any matter subject to an assessment, investigation or referral under the Bill, to request the Auditor-General to conduct an examination of accounts.

Evaluation of practices, recommendations and reports

Division 3 sets out the function of the ICAC to evaluate the practices, policies and procedures of an inquiry agency or public authority. The ICAC must prepare a report of an evaluation and make a copy of the report available to the President of the Legislative Council and the Speaker of the House of Assembly. Division 4 confirms what action can be taken once an evaluation has been conducted, which includes the making of recommendations to the inquiry agency or public authority and the preparation of a report.

Division 4 also empowers the ICAC to make a report to the Attorney-General and to the Speaker of the House of Assembly and the President of the Legislative Council setting out recommendations for the amendment or repeal of a law or on other matters considered to be in the public interest to disclose that do not relate to a particular matter that is subject to assessment, investigation or referral.

Other matters

Part 6 of the Bill addresses a range of miscellaneous matters that are necessary to facilitate the operational aspects of the ICAC and the agencies and authorities with which it will interact. Clause 48 confirms that a person may disclose information to the ICAC or an investigator despite the provision of any other Act or common law relating to confidentiality, except where that law is designed to keep the identity of an informant secret. Part 6 of the Bill also includes a standard provision relating to victimisation of anyone who makes or intends to make a complaint or report under the measure.

A process is also set out for service of documents and notices. Subject to the discretion of the ICAC, it is envisaged that notices issued in relation to a formal examination will be limited to personal service. Finally, there is to be a review of the operation of the Act within 5 years after its commencement.

Consequential Amendments to other Statutes

A range of consequential amendments of a minor nature are necessary to establish the ICAC and the OPI to give effect to their objectives and functions. I therefore intend only to summarise the amendments to existing Acts that are of significance or form part of the key components of the Government's public integrity reforms.

Proposal to amend the Local Government Act 1999

Section 63 is to be amended to require uniform codes of conduct to be prescribed in regulations that will apply to all elected members and employees of local councils. The codes of conduct for elected members and employees will be developed in consultation with the Local Government Association and are likely to be in force within 12 months of the ICAC Act commencing operation.

A new section 78A will be inserted into the Local Government Act1999 to enable elected members (in certain circumstances) to obtain legal advice at the expense of the council in question. Section 78A provides that regulations may establish a scheme under which a member of council may directly obtain legal advice at the expense of the council to assist the member in performing or discharging official functions and duties. This amendment recognises that elected members may from time to time require legal advice independent to that obtained by council staff, to properly discharge their functions. This new provision contemplates mechanisms to guide elected members as to the practical limits in accessing legal advice, in order to make clear that the right is not unfettered and is subject to considerations including cost and relevance.

It is also proposed that section 263 be amended by deleting reference to section 74 as forming the basis for making a complaint against an elected member in the District Court. It is proposed that any conduct that is outlined in Chapter 5 Part 4 of the Local Government Act 1999 (as amended) will instead trigger a complaint being made to the Ombudsman.

Section 263A is a new provision that enables complaints to be made, or matters referred to the Ombudsman for investigation and report about an elected member, where the matter constitutes a ground of complaint under the Local Government Act 1999. Under section 263A this can occur in one of three ways, by referral by the Minister for Local Government or any member of the public, or as a result of the Ombudsman exercising his or her own initiative. The Ombudsman's power to investigate and report under section 263A is that contained in the Ombudsman Act 1972.

Section 263B sets out the recommendations that the Ombudsman can make as a result of completing an investigation under the authority of the Ombudsman Act 1972. The recommendations as set out at 263B(1) are complementary to those set out in the Ombudsman Act 1972. Under section 263B, it will be the responsibility of the respective council to ensure compliance with the recommendations of the Ombudsman. Where there is non-compliance by the elected member with the recommendations of the Ombudsman made under section 263B(1), the member will be taken to have failed to comply with Chapter 5 Part 4 and the council is to ensure that a complaint is lodged with the District Court pursuant to section 264 of the Local Government Act 1999.

Section 264, which currently addresses complaints against elected members in the District Court, is to be amended to remove ambiguities by requiring public officials to refer their complaint to the Ombudsman for investigation before taking action in the District Court. A person other than a public official, however, must have the written approval of a legally qualified person appointed by the Minister after consultation with the Local Government Association before taking action in the District Court.

Section 267 of the Act, which addresses the outcomes of proceedings in the District Court, will be expanded to include reprimanding a person, including by means of a public statement, issuing an apology in a particular form and requiring the person to reimburse the council a specified amount of money.

The proposed amendments to sections 272 and 274 involve removing the role of the Minister and substituting the Ombudsman to conduct investigations into councils or their subsidiaries. It is proposed to delete section 272 in its entirety and replace it with a new provision that sets out when the Ombudsman is to conduct an investigation into council and that a referral to the Ombudsman may be made on the basis of a report received from an auditor or on any other basis.

Section 274 is proposed to be further amended by requiring the Minister, before referring a matter to the Ombudsman, to give the subsidiary a reasonable opportunity to explain its actions and make submissions, unless providing such an opportunity would undermine the investigation.

Proposal to amend the Ombudsman Act 1972

Section 3(d) is amended to further facilitate the Ombudsman's ability to investigate local government, namely, to bring the Local Government Association Mutual Liability Scheme (LGAMLS) within the Ombudsman's jurisdiction to ensure the Ombudsman's ability to investigate an individual's complaint is not restricted.

The amendment, whilst not expressly referring to the LGAMLS, achieves this objective in a general sense in order to capture any future scheme, analogous to the LGAMLS within its scope. The clause also specifically excludes application of the Act to the ICAC and the OPI.

Section 13 is amended by ensuring that the ability to lay a complaint for disciplinary action against a person does not prevent a person being able to lodge a complaint with the Ombudsman about the conduct forming the basis of the disciplinary complaint.

Section 19A relating to the circumstances in which the Ombudsman may direct an agency to refrain from performing an administrative act is restructured. It is recognised that a notice must not be issued if compliance with the notice by the agency would result in the agency breaching a contract or other legal obligation or cause any third parties undue hardship. Further, section 19A(7), which prohibits functions under section 19A from being delegated, is to be repealed. At present, this is the only power under the Ombudsman Act 1972 which cannot be delegated. Deletion of section 19A(7) will enable the Ombudsman to delegate the power to issue a notice under the section.

Section 20 of the Act is amended to clarify that any body or organisation to which the Ombudsman Act 1972 applies cannot rely on privilege to decline to hand documents or things over as requested by the Ombudsman in exercising functions and powers under the Act.

The provisions about confidentiality, disclosure of information and publication of reports are brought together and, as a consequence, sections 22 and 26 are repealed.

Proposal to amend the Parliamentary Committees Act 1991

The proposed amendments to this Act seek to establish two new committees, the Parliamentary Conduct Committee and the Crime and Corruption Policy Review Committee.

The insertion of Part 5E into the Act establishes the Parliamentary Conduct Committee. This Committee will consist of 5 members; 3 members of the House of Assembly and 2 members of the other place. The Presiding Member is to be a member from the House of Assembly. The members of the Committee are not entitled to remuneration for their work as members of the Committee.

The functions of the Parliamentary Conduct Committee are:

to promote compliance with standards of conduct required of members of Parliament by their respective Houses and investigate, on its own initiative or on receipt of a complaint, alleged contraventions of those standards; and

if it is satisfied that there has been a contravention of the standards by a Member, to report to the Member's House the nature of the contravention; and

to keep the standard of parliamentary conduct generally under review and make such recommendations as it sees fit for modifications of the standards of conduct required of members of Parliament to both Houses; and

to perform other functions assigned to the Committee under this or any other Act or by resolution of both Houses.

The Government will be moving for the adoption of a Parliamentary Code of Conduct in each House in due course. It is proposed that the code be based on the 2004 Report of the Joint Committee on a Code of Conduct for Members of Parliament. It is the Government's intention that the code be adopted by a resolution of each House of Parliament. The legislative scheme of the Bill explicitly establishes the Parliamentary Conduct Committee to oversee and monitor the standards of conduct required of members of Parliament by their respective Houses, as proposed to be set out in the Code of Conduct.

As stated, it is also proposed to establish a Crime and Corruption Policy Review Committee, under Part 5F of the Act. The Committee will consist of 7 members of whom 4 must be from the House of Assembly and 3 must be from the other place. The Presiding Member of the Committee is to be a member of the House of Assembly and committee members are not entitled to remuneration for their work as members of the Committee.

One of the functions of the Crime and Corruption Policy Review Committee is to examine:

each annual and other report laid before both Houses prepared by ICAC, the Commissioner of Police or the Police Ombudsman; and

each report laid before both Houses under the Police Act 1998, the Serious Organised Crime (Control) Act 2008 or the Serious and Organised Crime (Unexplained Wealth) Act 2009.

Further functions of the Crime and Corruption Policy Review Committee are to report to both Houses on any matter of policy affecting public administration arising out of a report as the Committee considers appropriate; and to perform any other functions as assigned.

It is important to note that proposed section 15R clearly sets out that nothing authorises the Crime and Corruption Policy Review Committee to investigate a matter relating to particular conduct or to reconsider a decision of the ICAC or any other person or body in relation to a particular matter or to report on the performance of the functions of the ICAC, SA Police or the Police Ombudsman.

Further, Part 5F to be inserted into the Parliamentary Committees Act 1991 expressly prohibits the ICAC from disclosing any information to the Crime & Corruption Policy Review Committee that relates to a particular matter that is or has been the subject of a complaint, report, assessment, investigation or referral by the ICAC. This is necessary to ensure that any matter at whatever stage which is in the possession of the ICAC remains private and that ICAC is not prejudiced by the Crime and Corruption Policy Review Committee in performing its functions. This prohibition is however to be read in conjunction with the ability of ICAC to make public statements so that ICAC may make the same kind of statements to the Committee

Proposal to amend the Police Act 1998

Section 38 is amended by requiring the Commissioner of Police to provide the Police Ombudsman with details of each report into breaches of the Police Code of Conduct as soon as practicable after it is made. Section 67(3) is amended to make it clear that special constables will be able to be seconded to the ICAC when required. It is intended that SAPOL officers, including special constables, will retain their SAPOL powers when seconded to the ICAC. As currently worded, section 67(3) would not permit the Commissioner of Police to authorise special constables to retain their police powers when seconded to the ICAC.

Proposal to amend the Police (Complaints and Disciplinary Proceedings) Act 1985

It is proposed to change the name of the Police Complaints Authority to the Police Ombudsman.

Section 12 is amended to ensure that the protection extends to action taken by the Police Ombudsman under another Act. Section 21 of the Act is amended to remove the requirement that reasons be given when the Ombudsman determines not to investigate or further investigate a matter. This is intended to minimise the administrative workload where it is unnecessary to provide reasons.

A new comprehensive offence of obstruction is inserted which will apply to investigations by the Police Ombudsman and Internal Investigation Brach investigations. The maximum penalty will be a fine of $10,000 or imprisonment for 2 years.

Proposal to amend the Public Finance and Audit Act 1987

Section 4 is amended by applying a new definition of a local government indemnity scheme to ensure its inclusion for the purposes of section 32 of the Act.

Section 32 is amended to enable the Auditor-General to audit or examine, in whole or in part, the accounts of publicly funded bodies and projects, either by the Auditor-General's own motion or at the request of the Treasurer or ICAC. Under an amendment to section 36 of this Act, the Auditor-General will be required to include information about examinations undertaken under the authority of section 32 in the Annual Report.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Primary objects of Act

The primary objects are—

to establish the Independent Commissioner Against Corruption with functions designed to further—

the identification and investigation of corruption in public administration; and

the prevention or minimisation of corruption, misconduct and maladministration in public administration, including through referral of potential issues, education and evaluation of practices, policies and procedures; and

to establish the Office for Public Integrity to manage complaints about public administration with a view to—

the identification of corruption, misconduct and maladministration in public administration; and

ensuring that complaints about public administration are dealt with by the most appropriate person or body; and

to achieve an appropriate balance between the public interest in exposing corruption, misconduct and maladministration in public administration and the public interest in avoiding undue prejudice to a person's reputation. It is recognised that the balance may be weighted differently in relation to corruption in public administration as compared to misconduct or maladministration in public administration.

It is intended that the primary object of the Commissioner be—

to investigate serious or systemic corruption in public administration; and

to refer serious or systemic misconduct or maladministration in public administration to the relevant body, giving directions or guidance to the body or exercising the powers of the body as the Commissioner considers appropriate.

4—Interpretation

For the purposes of this measure, complaints about public administration include complaints alleging corruption, misconduct or maladministration in public administration and any complaints about public authorities or public officers.

Public officer, the public authority to which a public officer belongs and the Minister responsible for the public authority are concepts that are explored in Schedule 1. The measure covers a very broad range of public sector officers, local government officers, persons to whom functions or powers are delegated by such officers, persons assisting such officers and persons who perform work for a public authority as a contractor or as an employee of a contractor or otherwise directly or indirectly on behalf of a contractor. The last 3 categories reflect a similar extension for responsibility for honesty and accountability that currently applies in the public sector under the Public Sector (Honesty and Accountability) Act 1995. The scheme also covers Members of Parliament, judicial officers and the Governor.

5—Corruption, misconduct and maladministration

This clause sets the scope of the matters to be investigated or referred under the measure. Complaints on other matters may still be referred to an appropriate body or person but the Commissioner would not be involved in dealing with or overseeing the complaint.

For clarity, for the concept of corruption the main offences on the State's Statute Book that relate to the conduct of a public officer are referred to (including bribery by a third party) and then a catch all is included for other offences committed as a public officer or former public officer. Incidental offences are included as is the case under section 3(3) of the Australian Crime Commission (South Australia) Act 2004.

The concept of misconduct in public administration aligns with the concept of misconduct in the Public Sector Act 2009. Codes of conduct applying to public officers set the scene. There are or will be specific codes for Members of Parliament, public sector employees, local council members and local council employees.

Maladministration brings in the idea that practices, policies and procedures of public authorities may be the source of problems as well as the conduct of public officers.

Misconduct and maladministration are dealt with together in the measure through mechanisms for referral. Corruption, that is, criminal conduct in public administration, is dealt with as a matter requiring significant investigation and extraordinary powers are made available to ensure that it can be identified, investigated and prosecuted.

The clause ensures that past conduct is relevant, as is conduct that occurs outside the State.

Part 2—Independent Commissioner Against Corruption

6—Functions

This Part starts off with a high level view of the functions of the new Commissioner. The highest priority is identifying corruption in public administration and investigating and referring the corruption for prosecution or referring it to SA Police or the Police Ombudsman for investigation and prosecution. The second priority is assisting inquiry agencies (the Ombudsman, the Police Ombudsman and the Commissioner for Public Sector Employment) and public authorities to identify and deal with misconduct and maladministration. This includes giving directions or guidance to inquiry agencies and public authorities and to exercising the powers of inquiry agencies as the Commissioner considers appropriate. The third priority is a role in evaluating the practices, policies and procedures of inquiry agencies and public authorities. Here the emphasis is on a comprehensive and effective system for preventing or minimising corruption, misconduct and maladministration. The fourth priority is an educative role. Each of these roles is explored more fully later in the measure.

The clause makes it clear that the Commissioner is independent.

However, the Attorney-General may request the Commissioner to review a legislative scheme related to public administration and to make recommendations to the Attorney-General for the amendment or repeal of the scheme.

The Commissioner is required to perform his or her functions in a manner that is as open and accountable as is practicable while recognising that examinations relating to corruption in public administration are to be conducted in private and that other Acts govern processes connected with how misconduct and maladministration in public administration is dealt with and in a manner that deals as expeditiously as is practicable with allegations of corruption in public administration.

7—Commissioner

The Governor is to appoint a former judge or legal practitioner of at least 7 years standing as the Commissioner for a term not exceeding 7 years. The maximum term of appointment (including in the position of deputy) is 10 years. Removal of the Commissioner is on the address of both Houses of Parliament although there is a process for suspension pending removal. The office automatically becomes vacant in certain circumstances including insolvency or conviction for certain offences. These provisions are similar to those applying to the Ombudsman. The Public Sector (Honesty and Accountability) Act 1995 is applied to the Commissioner as a senior official.

8—Deputy Commissioner

A Deputy Commissioner may be appointed on a similar basis to the Commissioner. However, the Governor is given power to remove the deputy for contravention of a condition of appointment, misconduct or failure or incapacity to carry out official duties satisfactorily. The Public Sector (Honesty and Accountability) Act 1995 is also applied to the Deputy Commissioner as a senior official.

9—Pension rights

The Judges' Pensions Act 1971 may be applied by the Governor to or in relation to the Commissioner or Deputy Commissioner as if the Commissioner or Deputy Commissioner were a Judge and service as the Commissioner or Deputy Commissioner were judicial service. It is contemplated that the instrument would specify the relevant level of judicial office for the purposes of the pension. The written instrument by which the Judges' Pensions Act 1971 is applied by the Governor may impose conditions on the application of the Act. Application of the Act may also be subject to specified modifications.

10—Employees

The Commissioner is empowered to engage staff on terms and conditions determined by the Commissioner. The employees will be bound by the Public Sector (Honesty and Accountability) Act 1995 although they are not Public Service employees.

11—Use of services or staff of other government entities

The Commissioner may make use of Public Service employees, police officers, special constables or staff of the Office of the Director of Public Prosecutions under arrangements with the appropriate authorities.

12—Examiners and investigators

This clause allows the Commissioner to appoint examiners and investigators. Police officers and special constables seconded to assist the Commissioner are automatically investigators for the purposes of the measure.

An investigator who is not a police officer or special constable is to be issued with an identity card that must be produced by the investigator at the request of a person in relation to whom the investigator intends to exercise powers under the Act.

13—Cooperation with law enforcement agencies

The need for cooperation with law enforcement agencies is recognised. The definition of law enforcement agency in the interpretation section encompasses federal, State and Territory police forces, police ombudsmen, integrity commissions and supervisory bodies. International or other bodies may be added by regulation.

14—Delegation

A standard delegation provision applies to the Commissioner. The Commissioner may not delegate a function or power under section 29, which gives the Commissioner a power to issue a warrant in certain circumstances. If there are other functions or powers that should not be delegated, regulations may be made to that effect.

Part 3—Office for Public Integrity

15—Functions and objectives

This clause establishes the Office for Public Integrity. The functions of the Office are to receive and assess complaints about public administration, receive and assess reports about corruption, misconduct or maladministration in public administration from inquiry agencies, public authorities (including the Commissioner of Police, the Police Ombudsman and the Auditor-General) and public officers and make recommendations as to whether and by whom complaints and reports should be investigated.

The Commissioner may assign other functions to the Office.

16—Organisational structure

The Office is responsible to the Commissioner and the Commissioner is not bound by the recommendations of the Office.

The staff are to be Public Service employees assigned to the Office to assist the Commissioner. The Commissioner may also assign the Commissioner's employees to the Office if that is found to be desirable.

Part 4—Procedures and powers

Division 1—Complaints and reports

17—Complaints system

A system for receipt of complaints by the Office is to be established. The system will need to handle anonymous complaints as well as complaints from informants who will require high levels of protection.

18—Reporting system

An obligation is placed on the Commissioner to establish directions and guidelines for the reporting of suspected corruption, misconduct and maladministration in public administration to the Office by inquiry agencies, public authorities and public officers.

19—Obstruction of complaint or report

It is an offence to obstruct the making of a complaint or report.

20—False or misleading statements in complaint or report etc

It is an offence to knowingly include a false or misleading statement in a complaint or report or to make a complaint or report knowing that there are no grounds for the making of the complaint or report.

Division 2—Assessments, investigations and referrals

Subdivision 1—Assessment and action that may be taken

21—Assessments

The Office is to assess a complaint or report as to whether—

it raises a potential issue of corruption in public administration that could be the subject of a prosecution; or

it raises a potential issue of misconduct or maladministration in public administration; or

it raises some other issue that should be referred to an inquiry agency, public authority or public officer; or

it is trivial, vexatious or frivolous, it has previously been dealt with by an inquiry agency or public authority and there is no reason to re-examine it or there is other good reason why no action should be taken in respect of it.

Subsection (2) contemplates the Commissioner assessing, or requiring the Office to assess, according to the criteria set out in subsection (1), other matters on his or her own initiative or that are uncovered in the course of the performance of the functions of the Commissioner or Office.

22—Action that may be taken

This clause provides an overview of the functions of the Commissioner involving investigation or referral. The next sections deal with the powers and procedures that apply in relation to these functions.

In the case of corruption the matter is to be investigated by the Commissioner or referred to SA Police, the Police Ombudsman or other law enforcement agency.

In the case of misconduct or maladministration, the Commissioner may choose to refer it to an inquiry agency (the Ombudsman, the Police Ombudsman or the Commissioner for Public Sector Employment) or the public authority concerned. In either case the Commissioner may issue directions or guidance in respect of the matter, and in the case of a referral to an inquiry agency, the Commissioner may choose to exercise the powers of that agency.

If the matter does not involve a problem with public administration, it may be referred to an inquiry agency, public authority or public officer as considered appropriate or a complainant or reporting agency may be advised to refer the matter to such a body or person.

No action need be taken in respect of a matter that is assessed as trivial, vexatious or frivolous a matter that has previously been dealt with by an inquiry agency or public authority if there is no reason to re-examine it or a matter in respect of which no action should be taken for some other good reason.

The clause recognises that it may be necessary to deal with a matter as raising multiple issues of corruption and misconduct or maladministration and recognises that a matter may need to be reassessed and dealt with differently as it is progressed.

There is a requirement under the clause for reasonable steps to be taken to ensure that a complainant or reporting agency receives an acknowledgement of the complaint or report and is informed as to the action, if any, taken in respect of the matter.

23—Public statements

The Commissioner may make a public statement in connection with a particular matter if, in the Commissioner's opinion, it is appropriate to do so in the public interest, having regard to the following:

the benefits to an investigation or consideration of a matter under this Act that might be derived from making the statement;

the risk of prejudicing the reputation of a person by making the statement;

whether the statement is necessary in order to allay public concern or to prevent or minimise the risk of prejudice to the reputation of a person;

the risk of adversely affecting a potential prosecution.

Subdivision 2—Investigation of corruption

24—Standard operating procedures

In order to regulate the practices of investigators in investigating corruption, this clause requires the Commissioner to establish standard operating procedures. These are to be made publicly available.

Contravention of the operating procedures constitutes a ground for suspending, dismissing or taking other disciplinary action against an investigator. However, the validity of the exercise of a power cannot be questioned on the ground of contravention of the operating procedures.

25—Management of investigation

This clause requires the Commissioner to oversee each investigation conducted under the measure. The Commissioner may determine to head an investigation himself or herself or appoint the Deputy Commissioner or an examiner to head an investigation and report to the Commissioner. The clause also contemplates the Commissioner appointing legal practitioners to assist as counsel for an investigation.

26—Production of statement of information

The person heading an investigation into corruption in public administration may, by written notice, require a public authority or public officer to produce a written statement of information about a specified matter within a specified period and in a specified form. The person may also require that the statement be verified by statutory declaration.

27—Examination and production of documents and other things

This clause provides for the conduct of an examination for the purposes of an investigation into corruption in public administration as set out in Schedule 2. The clause also provides that a person may be required to produce a document or thing for the purposes of an investigation into corruption in public administration as set out in Schedule 2. The provisions in Schedule 2 mirror Part 3 (Examinations) of the Australian Crime Commission (South Australia) Act 2004.

28—Power to require person to disclose identity

This clause authorises an investigator to require a person to state all or any of the person's personal details and to produce evidence of those details if the investigator reasonably suspects that the person has committed, is committing, or is about to commit, a prescribed offence, or may be able to assist an investigation of a prescribed offence.

A prescribed offence is corruption in public administration or an offence against the Act.

29—Enter and search powers under warrant

This clause provides for the issuing of warrants authorising investigators to enter and search places or vehicles.

The Commissioner may, on application by an investigator or on his or her own initiative, issue a warrant authorising an investigator to enter and search a place occupied or used by an inquiry agency, public authority or public officer or a vehicle owned or used by an inquiry agency, public authority or public officer. It is considered appropriate to give this power to the Commissioner (rather than a judge) because the focus is on matters of public administration and attendance at offices or vehicles of public agencies.

For a warrant to enter and search a private place or vehicle, application must be made to a judge of the Supreme Court. The judge may issue a warrant on application by an investigator authorising an investigator to enter and search—

a private place or private vehicle that is reasonably suspected of being, or having been, used for or in connection with a prescribed offence; or

a private place or private vehicle in which it is reasonably suspected there may be records relating to a prescribed offence or anything that has been used in, or may constitute evidence of, a prescribed offence.

A warrant may only be issued if the Commissioner or the judge is satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration.

An application for a warrant would ordinarily be made personally, However, if, in the opinion of the applicant, a warrant is urgently required and there is not enough time to lodge a written application and attend in person, the application may be made by fax, email or telephone in accordance with practices and procedures prescribed by regulation for applications to the Commissioner, or by rules of court for applications to a judge.

A warrant authorises an investigator—

to enter and search and, if necessary, use reasonable force to break into or open—

the place or vehicle to which the warrant relates; or

part of, or anything in or on, a place or vehicle to which the warrant relates; and

to give directions with respect to the stopping or movement of a vehicle to which the warrant relates; and

in the course of executing the warrant—

to take photographs, films or audio, video or other recordings; and

to examine, copy or take extracts from a document connected with the investigation or any other investigation into corruption in public administration; and

to examine or test any thing connected with the investigation or any other investigation into corruption in public administration, or cause or require it to be examined or tested; and

if the investigator reasonably suspects that a person who is or has been on or in the place or vehicle has on or about his or her body evidence of a prescribed offence, to search the person; and

to seize and retain anything that the investigator reasonably suspects has been used in, or may constitute evidence of, a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator; and

to seize and retain anything that the investigator reasonably suspects has been used in, or may constitute evidence of, an offence other than a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator, if the investigator reasonably believes that it is necessary to do so in order to prevent its concealment, loss, mutilation or destruction or its use in committing such an offence.

A prescribed offence is corruption in public administration or an offence against the Act.

The clause prescribes requirements in relation to applications, the matters to be specified in warrants and searches by investigators of persons.

A warrant expires 1 month after the date on which it was issued if not executed before that date.

30—Seizure and retention order procedures

This is a standard provision dealing with retention orders and what happens to seized items.

31—Obstruction

It is an offence under this clause for a person to—

refuse or fail to provide a statement of information as required by the person heading an investigation; or

include information in a statement of information knowing that it is false or misleading in a material particular; or

without lawful excuse, refuse or fail to comply with a requirement or direction of an investigator; or

alter, destroy, conceal or fabricate a document or other thing knowing that it is or is likely to be required by an investigator performing functions under the Act; or

otherwise hinder or obstruct an investigator, or a person assisting an investigator, in the performance of his or her functions.

The clause authorises an investigator to arrest a person without warrant if the investigator reasonably suspects that the person has committed, is committing, or is about to commit, an offence under the clause and—

when required to do so by an investigator the person failed to state truthfully his or her personal details or to produce true evidence of those details; or

the investigator has reasonable grounds for believing that the person would, if not arrested—

fail to attend court in answer to a summons issued in respect of the offence; or

continue the offence or repeat the offence; or

alter, destroy, conceal or fabricate evidence relating to the offence; or

intimidate, harass, threaten or interfere with a person who may provide or produce evidence of the offence.

The clause requires an investigator who has arrested a person under the clause to immediately deliver the person, or cause the person to be delivered, into the custody of a police officer. The person will then, for the purposes of any other law, be taken to have been apprehended by the police officer without warrant.

32—Limiting action by other agencies and authorities

Under this clause, the Commissioner may require a South Australian law enforcement agency, inquiry agency or public authority to refrain from taking action in respect of a particular matter being investigated by the Commissioner or to conduct a joint investigation with the Commissioner in respect of a particular matter. The agency or authority must comply with the requirement even if the agency or authority is otherwise required or authorised to take action under another Act. The requirement is to be made by written notice, must specify the period for which it is to apply and set out details of the action that is not to be taken or the requirements governing any joint investigation.

33—Injunction to refrain from conduct pending investigation

The Commissioner may apply to the Supreme Court for an injunction restraining a person from engaging in conduct that is the subject of, or affects the subject matter of, an investigation or proposed investigation by the Commissioner. This is on the basis that the conduct is likely to impede the investigation or it is in the public interest to grant the injunction.

34—Prosecutions and disciplinary action

This provision recognises that the outcome of an investigation may be a referral for prosecution or disciplinary action.

Subdivision 3—Referral of misconduct or maladministration

35—Referral to inquiry agency

Before a matter is referred to an inquiry agency (the Ombudsman, Police Ombudsman or Commissioner for Public Sector Employment), the Commissioner is required to consult with the agency and take its views into consideration. This is designed to ensure that matters are dealt with by the appropriate body.

If a matter raising potential issues of misconduct or maladministration in public administration is referred to an inquiry agency, the directions or guidance that may be given to the agency by the Commissioner include (without limitation)—

a requirement that the agency submit a report or reports on action taken in respect of the matter as set out in the directions; and

a recommendation as to the action that should be taken by the agency and the period within which it should be taken.

The clause sets out certain requirements that apply if the Commissioner decides to exercise the powers of an inquiry agency in respect of a matter referred to the inquiry agency:

the Commissioner must notify the agency in writing;

the agency must refrain from taking action in respect of the matter;

the Commissioner has all the functions and powers of the agency as if the Commissioner constituted the agency;

the Commissioner is bound by any Act governing the performance of the functions or the exercise of the powers by the agency;

a reference to the agency in any Act will be taken to include a reference to the Commissioner;

the Commissioner must inform the agency of the outcome of the matter.

The Commissioner may, as he or she sees fit, do any of the following:

revoke a referral to an inquiry agency;

revoke or vary directions or guidance given to an inquiry agency or give further directions or guidance;

withdraw from exercising the powers of an inquiry agency;

decide to exercise the powers of an inquiry agency.

There is a process for raising issues with the agency, then its Minister and then Parliament if the Commissioner is not satisfied that the agency has duly and properly taken action in relation to a referred matter.

36—Referral to public authority

Before a matter is referred to a public authority, the Commissioner is required to consult with the authority and take its views into consideration. Again this is designed to ensure that matters are dealt with by the appropriate body.

The provision is similar to that in respect of referral to an inquiry agency except that there is no process for exercising any powers of the authority. The provision ensures that directions cannot be given to the Governor or a judicial officer or to the Attorney-General in relation to a matter concerning the Governor or a judicial officer.

Subdivision 4—Request for Auditor-General to examine accounts

37—Request for Auditor-General to examine accounts

This clause recognises the provisions of the Public Finance and Audit Act 1987 under which the Auditor-General may conduct an examination of accounts at the request of the Commissioner.

Division 3—Evaluations of agency or authority practices

38—Evaluations of practices, policies and procedures

This clause supports the Commissioner's function of evaluating practices, policies and procedures of inquiry agencies and public authorities with a view to advancing comprehensive and effective systems for preventing or minimising corruption, misconduct or maladministration. Reports of evaluations are to be public.

Division 4—Recommendations and reports of Commissioner

39—Recommendations

If, on conducting an evaluation or in the course of conducting an investigation or overseeing the referral of a matter, the Commissioner forms the view that an inquiry agency or public authority should alter practices, policies or procedures or conduct or participate in educational programs, the Commissioner may make a recommendation to the agency or authority accordingly. If the Commissioner is not satisfied of compliance with the recommendation, the matter may be raised with the agency's or authority's Minister and if the Minister does not provide a satisfactory response, the Commissioner may provide a report to the Parliament. This follow up procedure is similar to that available to the Ombudsman in respect of recommendations.

Reports of recommendations are to be public.

40—Reports

The Commissioner is entitled to prepare a report setting out—

recommendations for the amendment or repeal of a law formulated in the course of the performance of the Commissioner's functions; or

other matters arising in the course of the performance of the Commissioner's functions that the Commissioner considers to be in the public interest to disclose.

This does not extend to a report relating to a particular matter subject to assessment, investigation or referral under the measure.

A copy of the report is to be provided to the Attorney-General, the President of the Legislative Council and the Speaker of the House of Assembly. The President and the Speaker are required to lay the report before their respective Houses.

Division 5—Miscellaneous

41—Proceedings before judicial body do not inhibit performance of Commissioner's functions

This clause is designed to prevent delay and allows the Commissioner to perform functions despite judicial proceedings. To achieve an appropriate balance, the Commissioner must endeavour to avoid, as far as practicable, prejudice to any person affected by the proceedings.

42—Public authority to assist with compliance by public officers

This clause requires the public authority responsible for a public officer to regard compliance with the Act by the officer as part of the officer's official duties and to reimburse expenses incurred in respect of travel, accommodation and meals.

Part 5—Accountability

43—Commissioner's annual report

This clause sets out matters to be included in the Commissioner's annual reports.

44—Annual review of exercise of powers

A person eligible to be appointed as the Commissioner is to conduct an annual review to determine whether powers under the measure have been exercised in an appropriate manner. A report of the review is to be tabled in Parliament. This provision is similar to that in section 34 of the Serious and Organised Crime (Unexplained Wealth) Act 2009.

45—ICAC Committee

The Commissioner is required to provide the relevant Parliamentary Committee (established by related amendments) with a copy of each annual report and other public report.

46—Commissioner's website

In the interests of the Commissioner conducting functions in an open and accountable way, as far as is practicable, the Commissioner is required to maintain a website. The clause establishes certain material that is to be included on the website.

47—Provision of information to Attorney-General

The Commissioner is required to keep the Attorney-General informed of the general conduct of the functions of the Commissioner and the Office and the Attorney-General may request information relevant to the performance of the functions of the Commissioner or the Office (but not information identifying or about a particular matter subject to assessment, investigation or referral under the measure)

If the Commissioner is of the opinion that to provide the information would compromise the proper performance of the Commissioner's functions, the Commissioner may instead provide the Governor with a detailed written explanation of the reasons for the opinion.

Part 6—Miscellaneous

48—No obligation on persons to maintain secrecy

This clause is designed to enable a person to disclose information to the Commissioner or an investigator despite the provisions of any other Act or common law relating to confidentiality. This would extend to confessional disclosures and medical disclosures.

49—Arrangements for provision of information by Commissioner of Police and Police Ombudsman

The Commissioner of Police and the Police Ombudsman are obliged to make arrangements to grant the Commissioner and investigators access to confidential information and databases for the purposes of an investigation.

50—Commissioner and staff to be regarded as law enforcement body

This clause ensures that the Commissioner and members of the staff of the Commissioner will be regarded as a body established for law enforcement purposes (however described) for the purposes of any other Act.

51—Impersonation of Commissioner, Deputy Commissioner, examiner or investigator

It is an offence to impersonate the Commissioner, Deputy Commissioner, examiner or an investigator.

52—Confidentiality

It is an offence for a person to disclose information obtained in the course of the administration of the measure in connection with a matter that is the subject of a complaint, report, investigation, referral or evaluation except in the circumstances set out in subclause (1). Subclause (2) contemplates various circumstances in which the Commissioner may authorise disclosure. If information is passed on, the person to whom it is passed on is bound by the same rules of confidentiality.

53—Proceedings to be heard in private

Proceedings under the Act (other than for an offence) are to be heard in private to prevent disclosures of the fact of a complaint etc, subject to an order of the court or judicial officer concerned to the contrary. Proceedings for an offence are to be heard in private if a public hearing may prejudice an investigation under this Act or unduly prejudice the reputation of a person other than the defendant.

54—Publication of information and evidence

It is an offence to publish (without the authorisation of the Commissioner)—

information tending to suggest that a particular person is, has been, may be, or may have been, the subject of a complaint, report or investigation under the measure; or

information that might enable a person who has made a complaint or report under the measure to be identified or located; or

the fact that a person has made or may be about to make a complaint or report under the measure; or

information that might enable a person who has given or may be about to give information or other evidence under the measure to be identified or located, or

the fact that a person has given or may be about to give information or other evidence under the measure; or

any other information or evidence publication of which is prohibited by the Commissioner.

55—Victimisation

This is a standard provision relating to victimisation, in this case based on a person making or intending to make a complaint or report under the measure.

56—Service

This clause is a standard provision setting out how notices and documents may be served. It is subject to the regulations, which may set out how a summons or a notice under Schedule 2 is to be served

57—Evidence

Evidentiary aids are provided in respect of appointments of examiners, investigators, delegations, notices, orders and receipt or non-receipt of documents, statements of information or other things.

58—Regulations

This clause provides general regulation making power.

59—Review of operation of Act

A report on the operation of the measure is to be tabled in Parliament within 5 years after its commencement.

Schedule 1—Public officers, public authorities and responsible Ministers

The table in the Schedule takes the approach of explicitly listing many classes of public officers and the public authorities responsible for them. This is designed to make it easier for many groups to understand that they are within the scope of the measure. If the Premier is the public authority, the Attorney-General is designated as the responsible Minister. If another Minister is the public authority, the Premier is designated as the responsible Minister. The Premier is designated as the responsible Minister in respect of the Governor, Members and officers of Parliament.

Schedule 2—Examination and production of documents and other things

The provisions in this Schedule replicate Part 3 of the Australian Crime Commission (South Australia) Act 2004, with necessary modifications. It contains practices and procedures for an examination or a requirement to produce documents and other things, deals with contempt and creates various offences.

Schedule 3—Related amendments

Part 1—Preliminary

1—Amendment provisions

This provision is formal.

Part 2—Amendment of Australian Crime Commission (South Australia) Act 2004

2—Amendment of section 18—Conduct of examination

The amendment ensures that if it becomes apparent in an examination that a person knows information relevant to another investigation, the appropriate questions may be asked.

Part 3—Amendment of Child Sex Offenders Registration Act 2006

3—Amendment of Act

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

Part 4—Amendment of Correctional Services Act 1982

4—Amendment of section 28—Removal of prisoner for criminal investigation, attendance in court etc

The Independent Commissioner Against Corruption, the Deputy Commissioner or an examiner is authorised to direct the attendance of a prisoner for the purposes of an investigation.

5—Amendment of section 33—Prisoner's mail

This amendment adds the Independent Commissioner Against Corruption and the Office and the Police Ombudsman to the list of persons and bodies to whom a letter may be sent by, or from whom a letter may be received by, a prisoner without it being opened.

6—Insertion of section 35A

The new section requires assistance to be provided to a prisoner who wants to make a complaint to the Office or about corruption, misconduct or maladministration in public administration.

Part 5—Amendment of Criminal Investigation (Covert Operations) Act 2009

7—Amendment of section 3—Interpretation

This Act authorise the use of undercover operations and assumed identities for the purposes of criminal investigation and the gathering of criminal intelligence within and outside the State. The definitions of chief officer, law enforcement agency and law enforcement officer are varied so as to add the Independent Commissioner Against Corruption and investigators for the purposes of extending the Act to investigations by the Commissioner.

Part 6—Amendment of Criminal Law Consolidation Act 1935

8—Amendment of section 246—Confidentiality of jury deliberations and identities

Section 246 prohibits disclosure or publication of protected information—information identifying a juror or particulars of statements etc made by a jury in the course of deliberations. There are various exceptions including disclosure to a Royal Commission. The exception is expanded to encompass disclosure to the Independent Commissioner Against Corruption, the Deputy Commissioner, an examiner or an investigator or in the course of making a complaint or report to the Office.

Part 7—Amendment of Criminal Law (Forensic Procedures) Act 2007

9—Amendment of section 45—Access to and use of DNA database system

10—Amendment of section 50—Confidentiality

11—Amendment of section 57—Compliance audits

These amendments are consequential on the change of name from Police Complaints Authority to Police Ombudsman.

Part 8—Amendment of Defamation Act 2005

12—Amendment of section 4—Interpretation

For the purposes of the Act matter that is published in the course of the proceedings of an Australian court or Australian tribunal is published on an occasion of absolute privilege and as such is not subject to action under the Act. This protection is extended to the Independent Commissioner Against Corruption, the Deputy Commissioner or an examiner conducting an examination.

Part 9—Amendment of Freedom of Information Act 1991

13—Amendment of Act

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

14—Amendment of section 4—Interpretation

The definition of agency is altered to ensure that the bodies that are agencies for the purposes of the Ombudsman Act 1972 are agencies for the purposes of this Act.

15—Amendment of Schedule 2—Exempt agencies

The Independent Commissioner Against Corruption and the Office are added to the list of exempt agencies.

Part 10—Amendment of Legal Practitioners Act 1981

16—Amendment of section 21—Entitlement to practise

Section 21 sets out the scope of practice for which a person needs to be a legal practitioner. This includes representing a party to proceedings in a tribunal, unless the Act constituting the tribunal or some other Act allows an unqualified person to act. Tribunal is currently defined to include a royal commissioner and an arbitrator who is a judge, special magistrate or legal practitioner. The Independent Commissioner Against Corruption, the Deputy Commissioner or an examiner conducting an examination is added as a tribunal for this purpose.

Part 11—Amendment of Listening and Surveillance Devices Act 1972

17—Amendment of section 3—Interpretation

18—Amendment of section 6—Warrants—General provisions

19—Amendment of section 6AB—Use of information or material derived from use of listening or surveillance devices under warrants

20—Amendment of section 6AC—Register of warrants

21—Amendment of section 6B—Reports and records relating to warrants etc

22—Amendment of section 6C—Control by police etc of certain records, information and material

23—Amendment of section 6D—Inspection of records by review agency

24—Amendment of section 6E—Powers of review agency

25—Amendment of section 7—Lawful use of listening device by party to private conversation

26—Amendment of section 8—Possession etc of declared listening device

27—Amendment of section 9—Power to seize listening devices etc

28—Amendment of section 10—Evidence

29—Amendment of section 11—Forfeiture of listening devices

30—Amendment of section 12—Regulations

These amendments allow the Independent Commissioner Against Corruption to obtain warrants to use listening and surveillance devices for the purposes of an investigation.

Section 6 currently requires the DPP to certify the requirement for an application for a warrant but then leaves it to the Commissioner of Police to cancel a warrant if the need for it no longer exists, and no certification is required in respect of ACC applications. The amendment leaves both issues to the chief officer of the investigating agency in all cases.

The Police Ombudsman inspects police records to ensure compliance. In the case of the Independent Commissioner Against Corruption, this role is to be performed by an independent person appointed by the Governor.

Part 12—Amendment of Local Government Act 1999

31—Substitution of section 63

New section 63 contemplates a code of conduct for members of councils being set out in the regulations.

32—Amendment of section 74—Members to disclose interests

These subclauses are removed as a consequence of the more comprehensive approach to discipline in section 263.

33—Insertion of section 78A

Under new section 78A, a scheme under which a member of a council may directly obtain legal advice at the expense of the council to assist the member in performing or discharging official functions and duties may be established by the regulations. The scheme may require the preparation and adoption of a policy by a council and may also include provisions for the variation of the policy and its availability to the public.

34—Substitution of section 110

New section 110 contemplates a code of conduct for council employees being set out in the regulations.

35—Amendment of section 129—Conduct of audit

The material that is deleted is moved to section 272(2).

36—Amendment of section 263—Grounds of complaint

This is expanded so that disciplinary action may be taken in respect of any contravention of Part 4.

37—Insertion of section 263A

New section 263A allows the Minister to refer to the Ombudsman for investigation and report any matter alleged to constitute grounds for complaint under the measure against a member of a council, in addition to contemplating that a person may make a complaint direct to the Ombudsman or the Ombudsman may act on his or her own initiative in investigating such grounds for complaint.

New section 263B sets out the recommendations that may be made by the Ombudsman on the conclusion of an investigation, namely—

reprimand the member (including by means of a public statement); or

require the member to attend a specified course of training or instruction, to issue an apology in a particular form or to take other steps; or

require the member to reimburse the council a specified amount; or

ensure that a complaint is lodged against the member in the District Court.

Councils are empowered to impose those sanctions. If there is non-compliance by a member with a requirement, the council is to elevate the matter to a complaint lodged in the District Court.

38—Amendment of section 264—Complaint lodged in District Court

This amendment requires an investigation by the Ombudsman before a public official may lodge a complaint in the District Court.

39—Amendment of section 267—Outcome of proceedings

These amendments ensure that the full range of sanctions is available to the District Court.

40—Substitution of section 272

Instead of the Minister instigating investigations of a council as well as the Ombudsman, the Minister may refer to the Ombudsman for investigation and report any contravention or failure to comply by a council with this or another Act or any irregularity that has occurred in the conduct of the affairs of a council. This avoids duplication.

41—Amendment of section 273—Action on report

These amendments are consequential.

42—Amendment of section 274—Investigation of subsidiary

This clause similarly provides for the Minister to refer a matter to the Ombudsman for investigation rather than duplicating the work of the Ombudsman by appointing his or her own investigators.

Part 13—Amendment of Ombudsman Act 1972

43—Amendment of section 3—Interpretation

This amendment clarifies the application of the Act to the Local Government Association, a body that was continued in existence for a public purpose by an Act. If the LGA contracts out the management of a local government indemnity scheme, paragraph (b) of the definition of administrative act ensures that the Act will apply.

The amendment also excludes the Commissioner and the Office from the application of the Act.

44—Amendment of section 13—Matters subject to investigation

This amendment ensures that the ability to lay a complaint for disciplinary action against a person does not prevent a person being able to lodge a complaint with the Ombudsman about the conduct forming the basis of the disciplinary complaint.

45—Amendment of section 19A—Ombudsman may issue direction in relation to administrative act

This provision is restructured and altered to make it workable. It sets out the circumstances in which the Ombudsman may direct an agency to refrain from performing an administrative act, namely, if the Ombudsman is of the opinion that the administrative act is likely to prejudice an investigation or proposed investigation or the effect or implementation of a recommendation that the Ombudsman might make as a result of an investigation or proposed investigation or likely to cause serious hardship to a person. It is recognised that a notice must not be issued if compliance with the notice by the agency would result in the agency breaching a contract or other legal obligation or cause any third parties undue hardship. The period for which the agency must refrain is limited to 45 days.

46—Amendment of section 20—No obligation on persons to maintain secrecy

This amendment is designed to clarify that a local government body (or any other agency to which the Act applies) is not entitled to rely on privilege to refuse to hand things over.

47—Repeal of section 22

48—Substitution of section 26

These amendments bring together the provisions about confidentiality, disclosure of information and publication of reports. It is an offence for a person engaged in the administration of the measure to disclose information obtained in the course of the administration of the Act except in the circumstances set out in subsection (1). Subsection (2) requires the Ombudsman to be of the opinion that it will be in the public interest to authorise or require information to be disclosed.

Subsection (3) enables the Ombudsman to make a public statement or report if of the opinion that to do so would be in the public interest.

Part 14—Amendment of Parliamentary Committees Act 1991

49—Amendment of section 3—Interpretation

This clause substitutes a new definition of 'Committee' so that the term includes all Committees established under the Act.

50—Insertion of Parts 5E and 5F

A parliamentary committee is established to promote compliance with standards of conduct required of members of Parliament by their respective Houses. The title of the committee is simply the Parliamentary Conduct Committee. The Committee is to be comprised of 3 HA members and 2 LC members. The functions relate to promoting compliance with the parliamentary standards of conduct and reporting potential contraventions to the relevant House. The committee may also formulate recommendations for modifications of the standards to the Houses.

The Crime and Corruption Policy Review Committee is also established. The Committee is to be comprised of 4 HA members and 3 LC members and has the following functions:

to examine annual and other reports laid before both Houses of Parliament prepared by the Independent Commissioner Against Corruption, the Commissioner of Police or the Police Ombudsman as well as reports laid before both Houses under the Police Act 1998, the Serious and Organised Crime (Control) Act 2008 or the Serious and Organised Crime (Unexplained Wealth) Act 2009;

to report to both Houses of Parliament on any matter of policy affecting public administration arising out of a report as the Committee considers appropriate;

to perform other functions assigned to the Committee under the Act or any other Act or by resolution of both Houses.

The Committee may not report on the performance of the functions of the Independent Commissioner Against Corruption, South Australia Police or the Police Ombudsman. The Independent Commissioner Against Corruption must not disclose to the Crime and Corruption Policy Review Committee information in relation to a particular matter that is, or has been, the subject of a complaint, report, assessment, investigation or referral under the measure, except such information as could have been the subject of a public statement under section 23.

Part 15—Amendment of Police Act 1998

51—Amendment of Act

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

52—Amendment of section 38—Report and investigation of breach of Code

The amendment requires that, when a police officer makes a report about a breach of the code, details must be provided to the Police Ombudsman.

53—Amendment of section 67—Divestment or suspension of powers

This amendment corrects a minor drafting error in the provision.

Part 16—Amendment of Police (Complaints and Disciplinary Proceedings) Act 1985

54—Amendment of Act

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

55—Amendment of section 12—Protection for Ombudsman and person acting under direction

This ensures that the protection extends to actions taken by the Police Ombudsman under another Act.

56—Amendment of section 21—Determination by Ombudsman that investigation not warranted

The requirement to give reasons when the Ombudsman determines not to investigate or further investigate a matter is removed.

57—Amendment of section 28—Investigation of matters by Ombudsman

The provisions dealing with obstruction are replaced by new section 28A.

58—Insertion of section 28A

A new comprehensive offence is created relating to obstruction of the Police Ombudsman or Internal Investigation Branch.

Part 17—Amendment of Protective Security Act 2007

59—Amendment of Act

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

Part 18—Amendment of Public Finance and Audit Act 1987

60—Amendment of section 4—Interpretation

A new definition of a local government indemnity scheme is included for the purposes of section 32. The references in the definition of public funded body and publicly funded projects to councils and controlling authorities under the 1934 Act are updated so as to refer to councils and subsidiaries under the 1999 Act.

61—Amendment of section 32—Examination of publicly funded bodies and projects and local government indemnity schemes

The provision currently authorises the Auditor-General to examine accounts of publicly funded bodies and projects if requested by the Treasurer. The power of the Auditor-General to examine accounts is extended to a body managing a local government indemnity scheme. The Auditor-General is given a discretion to examine the accounts on his or her own initiative but can be required to do so not only by the Treasurer but also by the Independent Commissioner Against Corruption.

62—Amendment of section 36—Auditor-General's annual report

The Auditor-General is required to include in his or her annual report information about examinations conducted under section 32.

Part 19—Amendment of Public Sector Act 2009

63—Amendment of section 25—Public Service employees

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

Part 20—Amendment of Shop Theft (Alternative Enforcement) Act 2000

64—Amendment of section 17—Confidentiality

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

Part 21—Amendment of State Records Act 1997

65—Amendment of section 3—Interpretation

This amendment excludes the Commissioner, Deputy Commissioner, examiners, investigators and employees from the definition of agency and so from the obligations under the Act relating to records.

Part 22—Amendment of Summary Offences Act 1953

66—Amendment of section 74C—Interpretation

Part 17 of this Act imposes an obligation to record interviews related to indictable offences. The amendment extends the application of the Part to interviews conducted by investigators, but excludes examinations conducted by examiners under the Independent Commissioner Against Corruption Act 2012.

Part 23—Amendment of Terrorism (Preventative Detention) Act 2005

67—Amendment of Act

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

Part 24—Amendment of Whistleblowers Protection Act 1993

68—Amendment of Act

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

Part 25—Amendment of Witness Protection Act 1996

69—Amendment of Act

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

70—Amendment of section 12—Access to register

This amendment is consequential on the change of name from Police Complaints Authority to Police Ombudsman.

71—Amendment of section 21—Offences

The protection given to investigations by the Police Ombudsman to ensure that relevant information may be obtained for the investigation is extended to the Independent Commissioner Against Corruption.

Debate adjourned on motion of Hon. D.W. Ridgway.


At 15:40 the council adjourned until Tuesday 12 June 2012 at 14:15.


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