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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-09-04 Daily Xml
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INDEPENDENT COMMISSIONER AGAINST CORRUPTION BILL

Committee Stage

In committee.

(Continued from 28 June 2012.)

Clause 5.

The Hon. G.E. GAGO: I seek the chamber's indulgence to address questions raised by the Hon. Mr Wade, the Hon. Ms Bressington, the Hon. Mr Parnell and the Hon. Mr Brokenshire during the second reading and clause 1 of the committee stage. I will first address the questions raised during the second reading contributions and then go on to the others.

There has been quite a lot of comment about the definition of corruption. We have made it clear that corruption is a criminal act that is capable of prosecution, meaning that it is an offence that already exists and is known to our criminal law. Conduct that falls below this threshold will be dealt with as misconduct or maladministration.

There also seems to be some confusion about how the ICAC and the OPI will operate. The purpose of the OPI is to receive, assess and refer complaints. The commissioner is the chief executive of the OPI. The OPI, under the directions of the commissioner, will advise complainants of any referral or progress of their matter, but the commissioner will not make public statements about matters under consideration, except in circumstances set out in clause 23.

On the appointment of the commissioner, the Hon. Ms Bressington has referred to an ability to appoint an acting or deputy commissioner until the first commissioner is appointed. This suggestion displays some misunderstanding of this position in its development. It is of paramount importance that the first commissioner be appointed in a timely manner, that he or she be involved in the establishment of the OPI and the commissioner's office.

Critical issues, such as the drafting of communication policies and the developing of reporting procedures must be done under the guidance of the first commissioner, not an acting or deputy commissioner. The government rejects the suggestion that an acting or deputy commissioner could be appointed to undertake this role.

The Hon. Ms Bressington in her second reading speech foreshadowed amendments to the Whistleblowers Protection Act, similar amendments to the ICAC Bill. These amendments have been filed and will be subject to debate later. I do not wish at this stage to put on the record the government's commitment to refer the legislation scheme of the whistleblowers act to the commissioner within his or her first 12 months of appointment.

This scheme is in need of review, and it is the government's position that that actual review will best be conducted by the independent commissioner against corruption. The other questions raised by the Hon. Ann Bressington will be dealt with during the remainder of the committee stage.

The final issue in terms of general comments is the assertion made by the Hon. Mr Wade that the government has not consulted with the Local Government Association, a repetition of the same assertion made in the other place by the Leader of the Opposition. I am sure the Hon. Mr Wade is now well aware that the government has always consulted. and continues to consult, extensively with the Local Government Association about this bill, and it is disappointing that the Hon. Mr Wade would put forward such an allegation without first checking the accuracy of this.

I will now address some of the specific questions on notice, one by Mr Wade as to whether the government intends the Local Governance Panel to continue to operate once the ICAC Bill has been passed. The government has no intention of interfering with the operation of the Local Governance Panel. The purpose of this bill is to add another layer of integrity mechanisms to the state and not take away any existing mechanisms. The government understands that the Local Governance Panel will continue to operate, especially in relation to the conduct that may not be captured by the code of conduct, and also perhaps have a role in alternative dispute resolution for matters arising under the code or otherwise, and that the Local Government Association supports the continuing of this role.

The Hon. Mr Wade asked about the budget for the ICAC and OPI. I am advised there is a global budget of $32 million over five years, which includes implementation costs. The precise allocation of that budget to the various functions of the ICAC and OPI will be determined by the commissioner once he or she is appointed.

He also asked about the FTE for the ICAC and OPI. I am advised that the commissioner will assess the FTE requirements at the time of his or her appointment and make any arrangements that they deem necessary to successfully implement the ICAC and OPI. The Hon. Mr Wade asked about the estimated budget for investigative and educational preventative roles of the ICAC. I am advised that the budget lines for these functions will be a matter for the commissioner's determination when they are appointed. The Hon. Mr Wade asked about the estimated number of investigators to be employed directly by ICAC. I am advised that the number of investigators is a matter to be determined by the commissioner upon their appointment.

The Hon. Mr Wade asked about the estimated additional cost of the expanded role of the Ombudsman. I am advised that it is not possible to predict how much change there will be to the role of the Ombudsman, particularly in the first 12 months of the operation of the OPI. The Ombudsman is a member, and has attended meetings, of the Public Integrity Reform Consultative Group and the Public Integrity Reform Working Group. The project director has advised the Ombudsman that it is intended to outpost a member of staff to the Ombudsman's office and to explore IT solutions to reduce any impact on the resources of that office.

Project staff have already attended at the Ombudsman's and the Police Complaints Authority's offices to examine policies, procedures and systems to identify implementation processes and solutions. The project director has every intention of working closely with the Ombudsman to ensure that the impact on his office is minimal and that cost-effective solutions are identified as early as possible. It is also useful to note that the past two annual reports from the Ombudsman noted that over 60 percent of the approaches received by his office were dealt with by the provision of advice or by referral to a more appropriate body.

The creation of the Office of Public Integrity means that for the most part these inquiries will now be made to that office rather than to the Ombudsman. The Hon. Mr Wade asked why, given the expanded role, the Ombudsman's funding for the 2012-13 year had actually been reduced. I repeat that the scope of this expanded role cannot be measured at this time, but I note that at the time of the 2012-13 state budget the reduction in the Ombudsman's budget in 2012-13 was due mainly to the allocation of savings targets to that office.

The Hon. Mr Wade asked for the actual budget funding and staffing levels of the Government Investigations Unit in 2011-12 and 2012-13. In 2011-12 the GIU had the following budgeted and ongoing staffing levels: one MAS3; two ASO-7 senior investigators; four ASO-6 investigators; one ASO-3 office administrator. The total salary, including on-costs, for the above positions was set at $786,733 for 2011-12. The GIU budget forms part of the CSO budget.

In 2011-12 the GIU had the following additional actual staffing levels: two ASO-6 investigator temporary contracts for children in state care and a 0.4 ASO-2 secretary temporary contract for children in state care. The additional salaries associated with that totalled $407,430. In 2012-13 all functions within the CSO are being examined in relation to operational efficiency. The Hon. Mr Wade followed up by asking whether variations had been made to the budget of the unit as a consequence of the bill, and I am advised no variation has been made to the anticipated workforce and budget of the GIU as a result of the Independent Commission against Corruption.

The following questions were asked by the Hon. Mark Parnell. We were asked to provide a detailed response to the LGA 7 June submission outlining why the Attorney-General did or did not take up the LGA suggestions, and I would like to read into Hansard this response provided to us and other members by the LGA on 17 July 2012:

The LGA has reached agreement with the Attorney-General on a number of amendments to the ICAC bill. You will note that there are also a couple of areas where the LGA has sought assurances from the minister for comments on Hansard that will assist in the interpretation of various clauses and in one instance a commitment to conduct a review of the operations of the code, 12 months after its coming into operation. I am therefore writing to advise you of the current position the LGA has taken in relation to its original submission on the bill. Please find attached a copy of key areas of the LGA's original submission and the outcomes that have been agreed to date.

I understand that each member received a copy of these outcomes. I make four further comments. One of the issues raised by the LGA was in relation to the amendments to the Public Finance and Audit Act. The LGA has agreed that the requested amendment is not necessary because the LGA will be provided with a copy of any report under section 32(3)(a).

The second point is to answer the following question posed by the LGA: what action will the Minister for State/Local Government Relations take if council fails to implement a recommendation from the Ombudsman to impose a penalty on a council member? An answer to this question is not possible at this stage as this is entirely dependent on the circumstances of each matter. I am advised that the various procedures provided under section 273 of the Local Government Act will be available to the minister.

Another question was asked by the LGA in relation to proposed section 263B of the Local Government Act. The LGA asked what action the minister may take if the council does not lodge a complaint against a member of the District Court as required under section 263B(2). The answer is similar to before in that it will be dependent on the circumstances of each case.

I am advised that a council's failure to take action may be deemed a failure by that council to discharge a responsibility under the act. My final point in relation to local government is to note that the government will commit to reviewing the practical operation of the amendments to the Local Government Act within 12 months of the commencement of the code of conduct.

A question was asked about the capture of a person by this regime who might have been accused of embezzling money in a private or corporate situation and who then becomes elected as a member of parliament. The act applies to corruption, misconduct or maladministration in public administration. Those last three words are the key: the conduct complained of must be 'in public administration'. Criminal conduct that has no link with public administration is not under the jurisdiction of ICAC.

The final questions were asked by the Hon. Robert Brokenshire. Why not direct to ICAC instead of via OPI? Careful consideration was given to the way the OPI and the ICAC should operate. The public presence where all complaints could confidentially be made is needed, together with the ability for ICAC and the resources of the ICAC to be directed to matters concerning corruption in public administration.

In this model, OPI staff will make an assessment of the complaint and make recommendations as to whether and by whom the complaint should be investigated. The commissioner is not bound by the recommendations of the OPI. All matters assessed as possible corruption in public administration will be dealt with by the commissioner or referred to SAPOL or some other law enforcement agency.

To what degree will the commissioner have full oversight? The commissioner will have full oversight of investigations concerning allegations of corruption in public administration that are conducted by the commissioner's office. If an investigation is referred to SAPOL or other law enforcement agencies, the agency will oversee its own investigation.

If the commissioner refers a matter of misconduct or maladministration to an inquiry agency, the commissioner may give directions or guidance and, in rare circumstances, may decide to exercise the powers of the inquiry agency. Steps may be taken by the commissioner if they are not satisfied that the inquiry agency has duly and properly taken action in relation to a referred matter.

What is the expected staffing, both seconded and permanent? I have already answered those questions in relation to the Hon. Stephen Wade. What is the annual budget into the forward estimates? I am advised the following: $8.894 million for 2012-13, $7.333 million for 2013-14, $6.830 million for 2014-15, and $6.973 million for 2015-16.

What is the indicative salary bracket for the commissioner? It is envisaged that the commissioner's salary will be similar to that of a Supreme Court judge. The bill clearly signals the government's intention to appoint someone who either is or could reasonably expect at some stage to be a sitting judicial officer. Does the government intend to advertise the position within the state and nationally and internationally? I am advised that the government intends to canvass the whole of Australia for potential candidates for the position.

Will the government announce an interim commissioner for six months or some other interim period? In my opening remarks, I referred to the Hon. Ms Bressington's suggestion about appointing a deputy or acting commissioner to oversee implementation before the first commissioner is appointed, and a response to that is already on the record.

Will there be only an annual report or will the OPI and ICAC be required on a more regular basis to publish statistics on complaints it has received and how it has dealt with those complaints? The commissioner must prepare an annual report for tabling in parliament. The required content of the report is set out in clause 43(2) of the bill. Under clause 40 the commissioner will also be able to prepare a report setting out 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.

Does the government contemplate any secondment at all of Anti-Corruption Branch police officers in the early stages or is the government going to take a wait and see approach? The government will not be involved in any decisions about secondment. The commissioner will be responsible for assessing the need for seconded police officers.

What rationale was there for the police ombudsman's name change? The name change was considered in consultation with the Police Complaints Authority. The change is to more clearly define and reflect the emphasis of the office on public integrity.

Did the government consider any other changes to the Police Complaints Authority structure in the overall context of the proposals the government has put to us within the ICAC bill? I am advised that no other changes were contemplated. The police ombudsman will continue to function as an investigative agency alongside ICAC and will refer matters that raise issues of corruption to ICAC.

What is the rationale for including the word 'incompetence' in the definition of 'maladministration' in 45(4)(b)? The definition is intended to give the ICAC at least as much scope to investigate maladministration as the ombudsman who may investigate any administrative act. Incompetence is a usual unprofessional conduct concept. Systemic incompetence is a serious matter and it leads to wider problems and lack of public confidence in public administration.

What criminal penalty will apply for someone found to have conducted maladministration in public administration? The definition of maladministration does not include criminal behaviour. Corruption is a criminal behaviour in public administration. Maladministration is subcriminal behaviour.

Can the minister confirm that, in general, this bill does not criminalise corrupt conduct, rather that it adds new criminal penalties for failure to comply with the commissioner's directions—in other words, there are no substantive anti-corruption offences created by this bill? I am advised that that is correct.

Can the minister explain to the committee what provisions the government has within the content of the ICAC bill to ensure that it does not become a 'lawyer's picnic'? I am advised that the bill provides quite properly for legal representation. In some circumstances a person may want to seek legal advice and/or representation; however, it is important to remember that this legislation is all about the investigation of complaints about corruption, not prosecutions where legal advice and representation would be in most cases necessary.

Finally, the Hon. Mr Brokenshire asked how the commonwealth privacy laws and state privacy principles interact with the bill. I have been advised that an act or practice required or authorised by or under law is an exception to a number of the Information Privacy Principles and the National Privacy Principles. The SA privacy principles also allow for a person to disclose personal information about some other person where the disclosure is required by or authorised under a law. Clause 48 of the bill provides:

...no obligation to maintain secrecy or other restriction on the disclosure of information applies for the purposes of a complaint , report or investigation under this Act, except an obligation or restriction designed to keep the identity of an informant secret.

Such an exception also exists under the Whistleblowers Protection Act 1993. The government also received the following questions from the ombudsman's office. Why does the obligation to refer a disclosure to the Anti-Corruption Branch under section 5(5) of the Whistleblowers Protection Act 1993 and section 18 of the bill need to coexist? Why was section 5(5) not repealed? I am advised that as it is the intention that the ICAC as soon as practical review the whistleblowers legislation, it was considered appropriate not to amend the reporting provisions in that act at this time.

In what circumstances will ICAC seek to exercise the ombudsman's powers as envisaged by subclause 35(5)? The short answer is that it remains to be seen. It must be emphasised that there is no intention for this power to be used regularly. The power exists for the rare circumstance when the ICAC may wish to investigate a systemic problem of misconduct or maladministration. The inclusion of this power is not a reflection on the ability of the Ombudsman or his office to carry out their functions.

The Hon. S.G. WADE: I would like to ask some questions coming out of the minister's answers given at clause 5. I note that in response to a question in relation to the budget for the ICAC for 2012-13, the minister chose to advise that the budget over five years was $32 million. I subsequently noted that, in answer to a question from Mr Brokenshire, the minister gave a precise figure of $8 million-plus in relation to 2012-13. Considering that we have a precise budget allocation for 2012-13, I take it that we do actually have a precise FTE allocation for the ICAC and the OPI, so I reiterate the questions I put on Thursday 28 June 2012 as to what is the FTE allocation for the ICAC and for the Office for Public Integrity.

The Hon. G.E. GAGO: We are happy to take the Hon. Stephen Wade's question on notice and bring back the detail for what the current FTEs are. However, the Hon. Stephen Wade needs to be aware—as I have said in my answers to questions—that once the commissioner is appointed, the commissioner may then choose to appoint and change staff accordingly, and that will be a matter for the commissioner.

The Hon. S.G. WADE: I appreciate that, minister, and that is why I asked for an indicative budget for this financial year only.

The CHAIR: The Hon. Mr Brokenshire?

The Hon. R.L. BROKENSHIRE: I have a question for the minister based on the answers regarding the annual budgets and the fact that the budgets are projected to decrease over a three or four-year period. Is that due to start-up costs? What is the reason for the budget actually decreasing into the third or fourth year?

The Hon. G.E. GAGO: I have been advised that, in relation to the first couple of years, it is likely that that will reflect the one-off start-up costs. That then will not be required in outgoing years. However, in relation to any other details about the fluctuations of those figures, I would need to take that on notice.

The Hon. A. BRESSINGTON: Will the minister advise if this reduction in the budget over this time frame is based on the experience of other states or is just purely speculative?

The Hon. G.E. GAGO: I have been advised that this model is not the same as any other state. We have designed a model for our ICAC and we have anticipated funding accordingly and, as I said, some of the decreases at the outset I am advised are likely to reflect one-off start-up costs, but any other details about why there is movement in those out years I would have to take on notice.

The Hon. A. BRESSINGTON: I am just a little confused because if we are going to do costings for an ICAC for staff and we are going to do those projections over a period of three to four years, it has to be based on something factual not just something imaginary that we think might happen. There has to be a basis for it somewhere, some evidence that decreasing the budget as we go along is going to see the best possible outcomes for the people of this state. I am sorry, but I just do not understand how you can come to that particular conclusion based on what appears to be no facts.

The Hon. G.E. GAGO: I have already stated that the budgeting for this ICAC is based on the South Australian model. The costings were predicted based on the model that is before us. I have already said to you that, in terms of the details of why these figures are fluctuating and defluctuating and that it goes up again in the forward years, some of it is due to the one-off start-up costs; other detail I will have to take on notice. I think the Premier has also made a statement and has gone on record to say that if it is determined—once the commissioner has been appointed—that further funds would be required then appropriate funding would be made available. I do not think we can do better than that.

The Hon. S.G. WADE: I would just like to highlight the fact that this is the clause that deals with the definition of corruption, misconduct and maladministration. The bill as proposed sets a high threshold for corruption in that it focuses the commissioner on criminal conduct in public administration. This corruption threshold is higher than the thresholds in the international definition, the New South Wales ICAC bill, and the bill that I have tabled in this place, which is also identical to the bill the Leader of the Opposition has tabled previously. They all define corruption to cover what the government calls misconduct and maladministration.

In broad terms, the Liberal opposition's bill defines 'corrupt conduct' as relating to the honest or impartial exercise of an official function by a public officer or public authority, a breach of public trust or the misuse of information acquired in the course of his or her official functions if the conduct would constitute a criminal offence, grounds for disciplinary action under any law, a substantial breach of a parliamentary code of conduct or grounds under any law for removing a public officer from office whether or not proceedings for an offence, disciplinary action, breach of the code or removal from office can still be taken.

The government bill focuses on the first criminal level. Setting the bar so high means that there is a real risk that there might be a very small window between having a strong enough case to justify an ICAC investigation or examination and the need to refer to a prosecuting body, SAPOL or the police ombudsman. The bar being so high also severely impairs the capacity to deal with emerging risks and would leave South Australia with a reactive ICAC rather than an early detection and prevention ICAC. Thirdly, having the bar so high is not consistent with interstate ICACs and the international definitions.

The government was of course reluctant to introduce an ICAC, and we believe that the definition in this clause is yet another demonstration of its reluctance to introduce a fully fledged ICAC. Whilst we are not proposing to amend the threshold at this stage, we are disappointed that the government has missed the opportunity to commit to a fully fledged ICAC.

The opposition considers the educative and preventive functions of an ICAC are important. The government's original model included neither. We are glad that both are in this bill. At a later time, in moving to amend clause 35, I will be seeking the support of the council to allow the ICAC to deal with emerging corruption.

Clause passed.

New clause 5A.

The Hon. G.E. GAGO: I move:

Page 11, after line 37—After clause 5 insert:

5A—Parliamentary privilege

(1) Nothing in this Act affects the privileges, immunities or powers of the Legislative Council or House of Assembly or their committees or members.

(2) However, if publication of information would, apart from the privileges, immunities or powers, be in contravention of section 54, the information may only be included in a record of proceedings, or a report, of the Legislative Council, the House of Assembly or a parliamentary committee if its inclusion is authorised by resolution of both Houses of Parliament.

This amendment addresses concerns that the bill may in some way affect parliamentary privilege. The amendment inserts a clear statement that privilege is not affected by the operation of this bill. There is, however, a need to ensure that the use of parliamentary privilege does not operate against the policy of this bill, namely, to keep the investigation process confidential.

The purpose of subclause (2) is to ensure that, in the rare circumstance of a member of parliament disclosing information under privilege that would otherwise be protected by the operation of this bill, that disclosure cannot be published without resolution of both houses. This will ensure that a person's reputation is not affected by the reporting of any matter under parliamentary privilege and that parliamentary privilege cannot be used as the means by which the identity of a person the subject of an ICAC investigation can be made public.

The Hon. S.G. WADE: As the minister acknowledged, this issue was raised by the opposition in the House of Assembly. The Attorney asserted that the government had no intention to affect parliamentary privilege and the Attorney undertook to consider the issues between the houses. The opposition welcomes the fact that the government has tabled a series of amendments explicitly protecting the parliament.

I stress that in raising the issue the opposition has no intention of protecting parliament or parliamentarians from scrutiny in relation to corruption, misconduct or maladministration. On the contrary, our goal is to preserve parliament's role in fighting corruption. Having been a member of this place for a relatively short time, I know that we are doubly vigorous in relation to our own members in terms of ferreting out possible corruption, misconduct or maladministration.

Parliaments in the Westminster tradition have served as a check on corrupt government practices, and parliamentary privilege is a tool to that end. In seeking to expand the extraparliamentary integrity infrastructure, the opposition does not want to inhibit parliament's well-established role in this domain. The modern significance of parliament in fighting corruption was particularly highlighted by the Fitzgerald Royal Commission in Queensland in 1989.

Both the government and the opposition have amendments on file which include subclause (1), which preserves the privileges of the parliament; if you like, the toolkit to tackle corruption. The government seeks to qualify the privilege by saying that, if a matter contravenes section 54, it cannot be published without the consent of both houses of parliament. The opposition is of the view that that provision is undesirable. Parliament is in the best position to manage parliamentary privilege and to supervise the conduct of its members.

If a member of this parliament acts in a way that undermines the operations of the ICAC through abuse of parliamentary privilege, parliament has the power to take action against that member. Should there be an exceptional need for a matter to be removed from the record, a house may make that provision at the time. There is no need for a default suppression of matters that could possibly be considered as contravening section 54.

I also think that the provision is unworkable. Who would identify that a matter contravenes section 54? Once a contravention is identified, how would each house move to consider whether or not to authorise its disclosure? Could the publication of the notice of the resolution and the debate on the resolution up to the vote itself be published? I think that the government's proposed proviso is so broad and so unworkable that it will act as an effective ban masquerading as a check.

Clause 5A(2) in the government's proposed amendment means that the government will effectively have the right to veto whether a matter is allowed to be published. The government proposes that the oversight committee be government controlled—and by definition it controls the lower house. In contrast, our amendment protects privilege, including the established mechanisms to supervise parliamentary privilege.

I urge the committee to vote against the government's amendment and instead lend its support to my latter amendment, [Wade-1] 1, which affirms our responsibilities as legislators to govern this place. I therefore move:

Page 11, after line 37—After clause 5 insert:

5A—Parliamentary privilege unaffected

Nothing in this Act affects the privileges, immunities or powers of the Legislative Council or House of Assembly or their committees or members.

The Hon. M. PARNELL: In relation to the two options that are before us in relation to the parliamentary privilege clause, the Greens will be supporting the simpler, shorter Liberal version, which simply seeks to ensure that there is nothing in the act that affects the privileges, immunities or powers of members of parliament or their committees.

The Hon. A. BRESSINGTON: I will also be supporting the Liberal amendment over the government amendment. As to the rationale behind that, I am often told that there are only five or six people out there who ever bother to read Hansard, or whatever. However, it has been a longstanding expectation that Hansard is not altered in any way and that the houses do not interfere with the recordings of Hansard, and that has obviously been in place for a very long time for a very good reason.

I can recall uproar when we censored Hansard with the Hon. Sandra Kanck wanting to put on the record various means of how people could commit suicide when we were dealing with a euthanasia bill. I know that that left a bitter taste in many people's mouths—that we were seeing a form of censorship creeping into the parliament that had never been there before.

I do respect the fact that people expect that the Hansard is a true and accurate record, and I also support the concerns that the Hon. Stephen Wade raised about how would we know that we have contravened that particular section of the bill and who would be the adjudicator of that? I believe that we are responsible enough in here to self-monitor and for every member of parliament in here to be acutely aware when we are breaching parliamentary privilege or crossing a line.

I will be supporting the Hon. Stephen Wade's amendment over the government's amendment.

The Hon. R.L. BROKENSHIRE: Privilege is something that is important to the parliament, and the opportunity of having parliamentary privilege. On this particular clause, first, I would be surprised if MPs knew about reports to the independent commissioner against corruption in any case, particularly with some of the things that we will be debating later where the government is very much cautious about potential sledging (which I understand) and damaging situations to individuals. I would be surprised if there were very many occasions, if any, where MPs were aware of issues before an ICAC.

If that is the case, then I trust the individual MP to actually use their initiative. I think we are in a dangerous area if we start to play around with parliamentary privilege, because we set a precedent for other situations. You could have a situation where, eventually, there would be a number of instances where members were not allowed to use parliamentary privilege from the point of view of their not being reported. On this occasion we will support the Liberal amendment.

Hon. G.E. Gago's new clause negatived; Hon. S.G. Wade's new clause inserted.

Clause 6.

The Hon. S.G. WADE: I move:

Page 13, after line 2 [clause 6(4)]—After paragraph (b) insert:

and

(c) as far as is practicable, deals with any allegation against a Member of Parliament or member of a council established under the Local Government Act 1999 before the expiry of his or her current term of office.

The local government councillors and state parliamentarians will be subject to the ICAC Bill and, unlike other possible subjects, the tenure of councillors and parliamentarians is subject to their re-election. If an ICAC investigation is not resolved at the time of an election and the investigation become public knowledge, there are two potential risks to informed democratic decision making. First, candidates are at risk of having to go to an election under a cloud and electors are at risk of having to go to a vote without all relevant information before them.

This amendment proposes that the bill be amended to require the ICAC to give priority to cases involving elected officials, with a view to investigations being resolved within electoral cycles wherever possible. I stress that this amendment does not direct the commissioner. First, it sits in a clause which relates to the manner in which the commissioner undertakes their role and, secondly, it relates to prioritisation of tasks and goals as far as practicable. I commend the amendment to the committee.

The Hon. G.E. GAGO: The government declines to support this amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 13, after line 2—After subclause (4) insert:

(5) For the purposes of exercising his or her functions under subsection (1(d) or (e), or for reviewing a legislative scheme under subsection (3), the Commissioner—

(a) may conduct a public inquiry; and

(b) may regulate the conduct of the inquiry as the Commissioner thinks fit,

(and, for the avoidance of doubt, the inquiry will not be a proceeding for the purposes of section 53).

The purpose of this amendment is to provide the commissioner with discretion to inquire into the practices, policies and procedures of an inquiry, agency or public authority; facilitate the conduct of educational programs; and review a legislative scheme, such as the whistleblowers legislation, by conducting public examinations and hearings. The purpose of this amendment is to provide the commissioner with discretion, not direction, so it is a discretionary power.

The Hon. S.G. WADE: The opposition's reading of section 53 is that without this amendment the ICAC commissioner might well have problems, or at least doubt, and so we will be supporting the amendment.

Amendment carried; clause as amended passed.

Clause 7.

The Hon. S.G. WADE: I think it would facilitate the consideration of these amendments by the committee if we reported progress for a brief period. I am in discussions with the Hon. Mr Brokenshire and would like to have the opportunity to do that without the committee progressing.

The Hon. G.E. GAGO: The government does not support reporting progress at this stage. These amendments have been before us for some time and there has been ample opportunity. The parliament has not sat for the past seven weeks, and I think it is outrageous that on our first day back after such a break the Hon. Stephen Wade needs time to negotiate with Family First. It is an outrageous proposition and an abuse of this chamber.

The Hon. S.G. WADE: I will, if I continue to be taunted, expose some of the behaviour of the government in relation to this matter at a later date. In the meantime, the Hon. Mr Parnell is apparently seeking the call and I am happy to leave that motion for a later stage in the debate.

The Hon. M. PARNELL: Clause 7 relates to the commissioner and includes the most important issue in relation to the appointment of the commissioner. The bill, as drafted, simply provides that the commissioner is appointed by the Governor. The appointment is for a term not exceeding seven years. There are provisions that relate to reappointment, but with the proviso that a person cannot hold office for consecutive terms that exceed 10 years.

I think the key issue for us now is in relation to the method of appointment. In dealing with that question, issues are raised about the respective responsibilities and powers of the executive arm of government versus the legislative arm of government. On the one hand, we have people fulfilling important statutory functions who are appointed by the Governor—in other words, it is an act of the executive arm of government—but we also have important statutory officers who are perhaps still appointed by the Governor but on the recommendation of both houses of parliament.

Into that latter category fall officeholders such as the Ombudsman and the Electoral Commissioner. In the former category, those who are simply appointed by the Governor on executive recommendation, are people like the police commissioner, for example, so one of the things we have to resolve is where the role of this ICAC commissioner more accurately fits. Does it fit within that class of persons where some level of parliamentary scrutiny is required, or should it fit within the executive prerogative?

There are three models before us when dealing with this clause. One is the model that I have mentioned, which is the government's option, which is simply appointed by the Governor. The Hon. Ann Bressington has a model which requires the insertion of the words 'on a recommendation made by resolution of both houses of parliament'; in other words, that would trigger a parliamentary process. The Hon. John Darley has a third alternative which, as I understand it, still involves the parliamentary Statutory Officers Committee having a look at the nominations or candidates, if you like, but does not involve a resolution of both houses of parliament. As I understand it, they are the three models that we are looking at.

In terms of finding precedents for how this has been handled, if we look at the Hon. Ann Bressington's model because that, I think, is going to be the first amendment that we look at, as I understand it, the parliamentary appointment process has only been followed twice before. As I understand it, the most recent was in 2009, when Mr Richard Bingham was appointed to the office of ombudsman, and there was one which, I understand, might have even been some 10 years earlier, I think in relation to the electoral commissioner.

I had to go back through the Hansard to try to get a handle on how the process worked, and it seems that it is fairly straightforward. We have the Statutory Officers Committee. They produced a report, and I will use the example of the Ombudsman. In fact, the fact that it is entitled 'Second report', I think is probably evidence that it was only the second time that they had done it. So, the first one, sometime earlier, must have been the Electoral Commissioner and the second one was the Ombudsman.

This report, which was tabled in the Legislative Council on 7 April 2009, sets out the process that was followed. In a nutshell, the six members of that Statutory Officers Committee participated in the selection process but only in a fairly limited extent. They certainly had a certain oversight role in relation to what I might call the headhunting process, but they were certainly not the committee that actually interviewed all the potential applicants. So, whilst they might have supervised the process, they only really got to see the last person standing at the end of the process.

Referring to that second report of the Statutory Officers Committee, in a nutshell, they interviewed the last person nominated and then they agreed that that was a person who should be put before the parliament. We then had, on 7 April, a motion from the leader of the government at that time, the Hon. Paul Holloway, who moved the following:

That a recommendation be made to His Excellency the Governor to appoint to Mr Richard Bingham to the office of the Ombudsman and that a message be sent to the House of Assembly transmitting this resolution and requesting its concurrence thereto.

In fact, this is the document I had thought to refer to in relation to the process. I will not read out the whole process but, effectively, the minister's remarks conclude:

A short list of applicants prepared by the panel was referred to the committee for consideration. The committee interviewed the recommended candidate, and the committee unanimously resolved to recommend the appointment of Mr Richard Bingham as Ombudsman. I commend the resolution to the council.

It was a fairly brief government contribution. The only other contribution to the debate was made by the Hon. Robert Lawson, who was a member of the Statutory Officers Committee. He commended the report that was presented by the minister and he warmly commended Mr Bingham on his appointment. The only other observations that were made were, if you like, some parting shots at the process which involved, as I understand it, public servants getting the job ad wrong which resulted, I think, in some duplication and confusion around the appointment.

That is the only example of that process having been used. The reason I go through that is I understand that the government's concern around having the parliament involved in the selection of a position like this is that it can potentially dissuade people who would otherwise be very suitable candidates. At one level, I think we can all understand how that works.

If you are in a job that you like, that you enjoy, and you decide to throw your hat into the ring for a different position, the last thing you want is for the person who you are applying to for a job to contact your existing employer and they then find out that you were seeking to jump ship. We have all perhaps experienced that where you have gone for a job and said, 'Please don't ring my current employer. They don't know I am looking elsewhere. If I am not successful, I would like to stay where I am please.'

I think part of the concern of the government, as I understand it, is that the more people who are involved in the shortlisting process and the selection process, the more opportunity there is for word to get out about who was on the shortlist, who might have put their hand up for it, and that could cause problems for a person's career if they are subsequently not the person who is finally appointed. I think we can understand how that works.

Whilst I accept that as an issue, I think what we need to do is drill down a little bit about if we were to accept the Hon. Ann Bressington's amendment that involves parliamentary scrutiny, what would that mean on the ground? I have explained the process for the Statutory Officers Committee but we also have to have a look at the act that sets up that committee, the Parliamentary Committees Act. What that act says is that if the Hon. Ann Bressington's amendment is to pass inserting those words 'on a recommendation made by resolution of both houses of parliament', the insertion of those words in this act will trigger the involvement of the Statutory Officers Committee because the functions of the committee are described as follows, 'to inquire into, consider and report on a suitable person for appointment to an office under an act vacancies in which are to be filled by appointment on the recommendation of both houses.' That is the trigger.

I think the important clause in the Parliamentary Committees Act that does give me some comfort in relation to the 'leakage' potential is subsection (2) of section 15I in the Parliamentary Committees Act. What that says is:

Matters disclosed to or considered by the Committee for the purposes of determining a suitable person for appointment to a statutory office must not be made the subject of public disclosure or comment.

So, there is a provision built into the Parliamentary Committees Act which is designed to prevent those people involved in this committee process from disclosing to the world at large who was on the shortlist, who was interviewed and things like that.

I guess the issue then becomes: can we trust the people on that committee, can we trust the various staffers who might work for those members of parliament? I guess if we are going to be complete, we also have parliamentary staff. I would suggest that there is no difficulty at all in relation to parliamentary staff. They deal with confidential matters of state all the time. I am not aware of a single example of where something has leaked out as a result of parliamentary staff inappropriate disclosure.

When it comes to the actual members of this committee, the current membership—and I just remind members and for the benefit of Hansard—entails three members from the Legislative Council and three members from the House of Assembly. From this chamber we have the Hons John Darley, Gail Gago and Stephen Wade; from the other place we have the Hon. Steph Key, Mr Lee Odenwalder and Mr Tim Whetstone. It is a very small pool of people who will be privy to the shortlist.

Pulling all that together, what the Greens need to balance up is the risk for suitable people not to be candidates for this position because they are afraid of the process and they are afraid of the implications if their potential candidacy leaked out compared to the other competing priority which is that this position is one of the utmost faith for the people of South Australia. It is a very serious position and I think the status of this position will be advanced if it clearly has the support of the representatives of the people as reflected through the membership of the parliament.

Having pulled all those things together and having appreciated the discussions I have had with the Attorney and the Attorney's staff, the Greens are inclined to support the Hon. Ann Bressington's amendment and we are inclined to support that in preference to the Hon. John Darley's amendment which, whilst it does involve that committee of six (the Statutory Officers Committee), does not involve the final sign-off by both houses of parliament, therefore it misses that final step of having the people's representatives agreeing in parliament that the person who has been put forward is in fact the person we want to manage our system of integrity and anti-corruption in this state. With those words, the Greens are inclined to support the Hon. Ann Bressington's amendment.

The Hon. A. BRESSINGTON: I move:

Page 13, line 4 [clause7(1)]—After 'Governor' insert:

, on a recommendation made by resolution of both houses of parliament,

In moving this amendment, I will also speak to amendment [Bressington-4] 1, which replaces [Bressington-2] 6, as it is consequential. As I detailed in my second reading speech, I am not comfortable with the government alone appointing the independent commissioner against corruption. I simply do not have enough faith in this government to not appoint a loyalist in the role. It goes without saying that a partisan appointment, be it for the first time or subsequent commissioners, would significantly undermine the effectiveness and public confidence in the independent commissioner against corruption.

Currently, the bill provides that the commissioner is to be appointed by the Governor on instruction from the executive. The bill offers little guidance as to the qualifications and qualities of the successful candidate, except to require seven years of legal practice or that he or she be a former judge of a state, territory or commonwealth court. Additionally, serving judicial officers or members of parliament are rightfully excluded. Beyond this, however, the executive government is free to appoint whom they please. While criticism will surely result from a partisan appointee, we cannot dismiss the possibility if this process remains.

Given the status and powers of the commissioner, it is my position that the person appointed to be the commissioner should have the support of the entire parliament and not just the party with the majority in the House of Assembly. To achieve that, this amendment seeks to utilise the existing mechanism for the appointment of the Ombudsman and the Electoral Commissioner for the appointment of the independent commissioner against corruption. Essentially, the Joint Parliamentary Committee or the Statutory Officers Committee, rather than the executive, becomes responsible for overseeing the candidate selection process.

The committee authorises the advertisement for the position, appoints a suitably qualified selection panel and then receives the panel's shortlist of candidates. From there, the committee further interviews the nominated candidates and scrutinises their credentials and, if suitably impressed, reports to both houses of parliament its recommendation. The parliament can then debate the merits of the recommended candidate and, presumably, if they have got past the bipartisan committee, such debate will most likely reflect members' hopes for them before resolving to recommend the candidate's appointment to the Governor.

Only through the scrutiny of a multiparty parliament can people be assured that the commissioner is truly independent and has no loyalty to this government or any other government. This would create symmetry with the process for the removal of a commissioner, which requires resolution by both houses of parliament.

This parliament has long recognised the need for such bodies as the Ombudsman and the Electoral Commissioner to enjoy the support of the parliament and not just the government. Given its proposed scope and powers, this is clearly also needed for the independent commissioner against corruption, something that every other state has recognised to a varying degree and hence legislated for.

Whilst I have previously sent members details of interstate appointment procedures for their respective commissioners, for the benefit of the record I shall briefly overview each state's legislated parliamentary involvement in the appointment process. In Queensland, with its unicameral legislature, before nominating a person for appointment as one of the five commissioners to the Governor, the Attorney-General is required by section 228 of the Crime and Misconduct Act 2001 to first consult with the bipartisan Parliamentary Crime and Misconduct Committee or, and I quote:

...if there is no parliamentary committee at the relevant time, the Leader of the Opposition and the Leader in the Legislative Assembly of any other political party represented in the Assembly by at least 5 members.

If the minister consults the parliamentary committee about the proposed appointment, again, I quote:

...the minister may nominate a person for appointment as a commissioner only if the nomination is made with the bipartisan support of the parliamentary committee.

That is effectively a right of veto to the parliament and the opposition. In New South Wales, section 5A of the Independent Commission Against Corruption Act 1998 prevents the appointment of a commissioner until the multiparty parliamentary joint committee, the Committee on the Independent Commission Against Corruption, has considered their candidacy and resolved not to veto their appointment.

While the Independent Broad-based Anti-corruption Commission is yet to be established in Victoria, the enabling act (the Independent Broad-based Anti-corruption Commission Act 2011) has been passed and, similar to New South Wales, section 14 prevents the appointment of the commissioner until the parliamentary joint house committee (to be known as the IBAC Committee) has considered their candidacy and resolved not to veto their appointment.

As this committee is yet to be established, my office contacted the office of the shadow minister for the anti-corruption commissioner who confirmed this committee will be bipartisan so, again, it is a right of veto for the parliament. These arrangements will not apply to the first IBAC commissioner; however, the Victorian Premier will consult with the Leader of the Opposition before the appointment of that commissioner.

Western Australia has opted for a similar model to Queensland, with section 9 of the Corruption and Crime Commission Act 2003 preventing the Premier from recommending to the Governor that a person be appointed commissioner until consulting with the parliamentary standing committee on the anti-corruption commission or, if there is no is standing committee, the Leader of the Opposition and the leader of any other political party with at least five parliamentary members in the house, and may only recommended a candidate to the Governor who, and I quote:

...if there is a standing committee, has the support of the majority of the standing committee and bipartisan support.

Tasmania stands alone in not providing its parliament with the right of veto. Nonetheless, the Integrity Commission Act 2009 compels the relevant minister to consult with the bipartisan parliamentary joint standing committee on integrity prior to a candidate being appointed as either a board member or the chief commissioner of the Integrity Commission.

However, even Tasmania will stand tall in comparison to us if this amendment does not go through, for this parliament will not even be consulted and we will presumably learn of the successful candidate after the media reports it, similar I suppose to the recent appointment of the Chief Justice and several magistrates—not that I am suggesting that there were partisan appointments amongst those.

Instead of this, South Australia, through my amendment, can have the most transparent and accountable appointment process of all the states. Not only will our parliament be consulted and have the right to veto a candidate, but the parliament, through the bipartisan Statutory Officers Committee, will scrutinise every stage of the candidate's selection from the advertisement through to the selection panel and then, ultimately, the candidates themselves.

This is how it should be. We have waited a long time for an ICAC, and the people of this state are cynical enough about how this government does business. I believe that, in order to create a level of confidence in this body that is going to be created, we should take every step possible to reassure the South Australian public that this parliament has had an oversight to this process at every available opportunity.

I am aware that the Hon. John Darley MLC has filed an alternative amendment which proposes that the government's preferred candidate is considered by the Statutory Officers Committee alone and can only be appointed with the support of that committee. Whilst it is obviously an improvement on the bill as it currently stands, I do not believe that this amendment will provide or promote public confidence in this ICAC.

First, under my amendment, the entire selection process will be transparent and accountable to this parliament through the Statutory Officers Committee. The advertisement will be authorised by the committee, the candidate assessment panel will be appointed by the committee and they will be accountable to the committee for their scrutiny. In the previous two appointments through this process, the assessment panel has comprised comparable interstate officeholders to the position being considered, with the electoral commissioner for Tasmania on the panel to assess candidates for the South Australian Electoral Commissioner and the commonwealth Deputy Ombudsman on the panel for the South Australian Ombudsman. Such credentialled panel members cannot be guaranteed if we leave this appointment to the government.

The most significant difference between the two amendments is that mine requires resolution by both houses of parliament whereas, as I stated, the Hon. John Darley's amendment only requires support from the committee. While the honourable member himself is on the committee, no other member from a minor party or Independent from either house has representation on that committee. As such, Family First, the Greens, Dignity for Disability and the Independents will have no opportunity to express any concerns they may have about the preferred candidate. I commend my amendment to the committee, and I urge members to support an open and transparent process for the appointment of a commissioner for ICAC.

The Hon. S.G. WADE: I thank honourable members for their contributions—and very relevant they have been. I suggest to the committee that my contribution is particularly relevant because I am a member of a parliamentary group which aspires to government. I should stress to this committee that my parliamentary group, the Liberal opposition, is extremely concerned.

This is perhaps the clause that is most concerning for us in the whole bill because not only do we appreciate that all our members will be subject to an ICAC in the discharge of their duties as a member of parliament but we also hope that the people of South Australia will entrust in us the duty of government in the not too distant future. In that context, we are acutely aware of the influence that this body could have not only on the governance of the state of South Australia but on each of us personally. I would ask members to consider that as they consider the opposition position.

It is extremely important that the ICAC has the confidence of the people of South Australia. It is doubly important that those people who participate in the political process have confidence that they are not being subjected to a body which is in some way influenced by partisan considerations. We think it is important enough to make sure that our electoral system is so secure by having the Electoral Commissioner endorsed by this parliament. We think it is so important that our complaints processes are protected by being endorsed by this parliament and yet the government wants us to have an ICAC commissioner appointed personally by the government. It is absolutely extraordinary.

I am passionately supporting Ann Bressington's amendment not only as a member of parliament but as a person who aspires to be a member of the government. The independence of the commissioners is vital to the integrity of the ICAC. Let me remind you of words out of the mouths of Labor members which doubly underscore that point. In August 2007, in opposing an ICAC, then attorney-general Michael Atkinson asserted that a majority government could stack the composition of any ICAC.

The then attorney-general said that an ICAC could be stacked by a government, and what we have here is a government that says, 'No, no, trust us. Our former attorney-general might have warned you and the people of South Australia about the risk of being stacked by a future government, but not us. It was just a vain flight of fancy by our former attorney-general.' I actually believe Atkinson on that point. The member for Croydon was rightly highlighting a serious threat to the integrity of this ICAC, and it is a shameful reflection on the Attorney-General and this government that they should propose to put up an ICAC without that sort of protection.

I appreciate that other ICACs have other mechanisms to ensure the bipartisan nature of the commissioner, but I am not aware of a model which does not even doff the hat at the need for bipartisanship. This is the arrogance of a government that has been in far too long. This is the arrogance of a government that has fought against an ICAC tooth and nail, year after year after year; now they want to sabotage it before it is even established. Likewise, in 2009 then premier Rann claimed that a national ICAC, like a national crime authority, would guarantee independence from any administration.

Now, they are nice words but what is he saying—'guarantee independence from any administration'? Surely what he is suggesting is that a state-based government would appoint a person that it was comfortable with. What former premier Rann is telling us from the political grave is that you cannot guarantee the independence of an ICAC from an administration without specific measures. He suggested a national ICAC. That was not accepted by the other AGs. The risk is still there. This parliament needs to act to protect the integrity of an ICAC, the integrity of the governance system of this state.

The experience of this opposition is that this government does not respect the need for bipartisan support for key appointments. It is well known for 'jobs for the boys', and it is only my respect for the institutions involved that prevent me from going into details. Suffice to say that, without this amendment, the opposition would be very concerned about the ongoing independence of the ICAC.

The government made much of its backdown in accepting the independent nature of the proposed commission, but without this amendment it might as well delete 'Independent' from the long title. Let us be clear, there is nothing dramatic about the Hon. Ann Bressington's amendment; it merely requires the parliamentary confirmation process for the commissioner's appointment that we apply to other key appointments, like the Ombudsman and the Electoral Commissioner.

My strong concern is that the government's aggressive behaviour today in pressuring parliamentarians at the death knell reflects its desperation to make sure that it maintains the privilege of a partisan appointment. The government will no doubt say that this process will unnecessarily slow the process. I beg to differ. All it will force the government to do is two things: first, it will force the government to make an unimpeachable appointment; and, secondly, it will force the government to consult prior to announcing an appointment to ensure that it will receive parliamentary support.

On this point the government and I do not differ. I agree that a potential appointee would not be comfortable with their name going forward to a parliamentary resolution without the confidence that it will be supported, but that candidate only needs to have the assurance of the Attorney-General that he has consulted the parliamentary groups and that the parliamentary resolution will be supported, the name can then go public.

So if it does two things it can rapidly have assurance that an appointment will be made in parliament in due course. I urge the members of the Legislative Council to support the Hon. Ann Bressington's amendment. I believe that without it you are not getting an ICAC, you are getting a CAC!

The Hon. R.L. BROKENSHIRE: I have listened to this debate, I have also had new information put to me in recent times and I have discussed this matter with my colleague. I can understand why the Hon. Ann Bressington is moving this amendment, and I respect her immensely for her intent with this amendment. There are two sides to this debate with respect to this particular clause, and I suggest that this clause is probably one of the standout clauses when it comes to the issue of the whole thrust of ICAC.

On the one side having multipartisan support for the independent commissioner against corruption is very important and on the other side, and equally as important, is ensuring that we actually get the best possible person for the job and that there is nothing put in the way of that person applying, namely, that they may actually have their name bandied around and then end up damaging their career because they did not get the appointment. You therefore have a situation where they decide not to apply because of the nature of the requirements around them applying—then we do not get the best commissioner.

Given that there are a lot of other clauses to be debated in this bill, I would foreshadow and/or move, based on your guidance, that this clause be recommitted to give us a little more time to deliberate on the positives and the negatives of this clause, because it certainly has some strong justifiable debate from what the Hon. Ann Bressington and the Hon. Stephen Wade have put up. There is the other side that, particularly in light of new information given to us that I do not want to put on the public record, it needs a little more deliberation. I would move to recommit this clause and proceed with the rest, with the concurrence of the committee.

The Hon. G.E. GAGO: Given the comments of the Hon. Robert Brokenshire (and he has indicated that he wants this clause recommitted), the government supports that. We are keen to make sure that all matters and issues are explored as thoroughly as possible. Given that, at this point the government will put forward its debate and considerations around this clause at the time of recommittal.

The Hon. R.I. LUCAS: I rise to speak to this particular issue because I believe it is, as my colleague the Hon. Mr Wade has indicated, absolutely fundamental to the importance of the bill before us. I have not entered the debate thus far because it has been more than capably handled by my colleague, but I do feel strongly about this. There has been a suggestion that the government may well be changing the minds of some members in this chamber in relation to the issue, and that would be a tragedy for those who genuinely support an independent commission against corruption in South Australia.

As the Hon Ms Bressington and the Hon. Mr Wade have outlined, we have had a well-established procedure in this parliament for positions which are deemed to be important in terms of being supported by, originally, both sides of politics—the government and the opposition (and of course we now have a number of other parties represented as well). As the Hon. Mr Wade has indicated, we have deemed it absolutely critical that the position of Electoral Commissioner, and others like that, be seen to be independent so that they can be effective. Those positions need to have the support of the government, the parliament and, in particular, the opposition as well.

I cannot see how anybody could distinguish the importance of the independence of this particular position—not just the importance of independence but the perception of independence as well—in relation to the effectiveness of the proposed ICAC. We in the Liberal Party have been long-term supporters of the ICAC. The government in latter days has come to support it, and we welcome that changed position, but as long-term supporters of the ICAC it has always been on the basis that this was going to be genuinely independent.

It was always on the basis that it would be with the support from the government and the alternative government. Governments, believe it or not, come and go (perhaps for those of us in the opposition not as frequently in recent years as we might have wished), and it is critical that both the government and the alternative government in particular have confidence in the independence of the ICAC.

As we go through the details of the committee stages of the bill, members—other than those who are actively engaged in the debate on the bill—probably will not realise potentially the impact the ICAC will have on them. Those who are currently ministers, in particular, even though they are not actively engaged in this bill, potentially if re-elected after the next election, will be in a position where, with the operations of the ICAC and with anyone who makes a complaint about actions that have been taken by a minister, they will want to be very confident in the independence of the ICAC.

Similarly, if there is a change of government, an alternative government, and members on this side of the chamber are elected ministers, the operations of the ICAC could potentially have a very significant impact on future careers, future decisions; future actions that might be taken by that ICAC might have an impact on ministers and governments. That is why it is so essential for an ICAC to be not only independent but perceived to be independent by everyone—that is, that there is support from both sides.

I am not sure what this other information is that the Hon. Mr Brokenshire has become aware of only today that is causing him to further reflect on the position, but I welcome the fact that he is not rushing to a decision today and that there will be the opportunity for further discussions with him and with any other members in relation to this issue.

There are many examples, and the reality is that it is probably not productive to put some of them into the public arena. I know that the Hon. Mr Wade has indicated that, and I certainly have not so far—and my current intention is not to put them in the public arena either—but the reality is that there are issues which all members ought to be aware of in relation to this. They just support the argument that there should be bipartisan support for the ICAC and the appointments in relation to that.

If, on reflection, the current model can be improved then let us listen to the debate in terms of how it might be improved. If the concern is in relation to the timing, then what are those concerns and are there proposals which might still meet the fundamental principle of independence and perceived independence, yet still allow the ICAC to be up and operational as soon as humanly possible?

Just on that, I support the position put by the Hon. Ms Bressington and supported by the Hon. Mr Wade. I would hope, given the position that the Hon. Mr Brokenshire has indicated, that he is prepared to further reflect on this and that a number of us are in a position to be able to speak to the Hon. Mr Brokenshire and the Hon. Mr Hood—and, indeed, anyone else who is still considering their position on this—to again emphasise the critical importance of this position being independent.

I guess my last point is that the Hon. Mr Brokenshire, having been a minister in a former government, is aware of the critical nature of some of these powerful positions, in particular, in the former government, of the role that was adopted by the then auditor-general in relation to various inquiries. This is obviously going to be much more significant in terms of staffing, resources and potential power in relation to corruption inquiries—as we have seen in other states and jurisdictions—than even the very powerful Auditor-General's role.

As I said, from his time in government the Hon. Mr Brokenshire would be aware of the concerns about various processes in relation to Auditor-General's inquiries. I am sure there will be the same concerns from a number of people about the processes adopted by the ICAC; that will be inevitable in terms of its operation. That is why it is critical that everyone, as we start the ICAC process, should be comfortable and confident that there has been bipartisan support in the first place for the appointment of the person who will be responsible for the operation of the ICAC.

The Hon. K.L. VINCENT: Very briefly, when the debate first began I was inclined to reject the Hon. Ms Bressington's amendment; however, having listened to the debate I am becoming more inclined to support it. I have not yet reached a firm position on this, but I guess for me it comes down to issues of objectivity. While, of course, there are benefits from having both houses of parliament scrutinise this position to ensure that it does have objectivity in terms of who is appointed to it, I also believe that objectivity necessitates a certain distance from parliament if the ICAC is going to be truly independent of parliament. I have not yet reached a firm position, but at this point I am willing to support the amendment so that we go into deadlock and have more discussion on this very important issue.

The Hon. S.G. WADE: I think the Hon. Kelly Vincent speaks for a number in reflecting the fact that for a number of members it is a balancing act between the need for independence and the need for discretion, and I think it would be fair to say that members are not comfortable with either position: they are not assured that the Bressington amendment will provide enough checks for discretion; on the other hand, they are not comfortable that the government acting alone in appointing a person ensures independence.

I would encourage members in that context to, if you like, do what we often do—that is, put our foot in the door to say to the government that we are serious about discussing this matter. Whether it is in the form of a recommittal, whether it is in the form of a deadlock conference, we have very successfully recrafted bills in recent months and years through both the recommittal and the deadlock conference process. I would urge the committee to support the Hon. Ann Bressington's amendment at this stage, fully anticipating recommittal or a deadlock conference.

We need to ask: is the government's carte blanche appointment of an ICAC commissioner acceptable? I urge the committee to say it is not. The Hon. Ann Bressington's position, in my view, is a better starting point than the government's.

The Hon. G.E. GAGO: Given that the amendment is now going to be put, I just need to make sure that the government's comments are on the record. The appointment of an independent commissioner against corruption by the Governor is consistent with the process for all other state commissioners who are appointed for a limited term. The appointment process suggested by this amendment applies only to the Ombudsman and the Electoral Commissioner, both of whom are appointed until the age of 65. This is an important distinction.

The commissioner is appointed for a term of seven years and cannot serve for longer than 10. The positions are not analogous. The analogous positions are the police commissioner and the DPP, both of whom are appointed under the same process as included in this bill.

The bill makes no secret of the type of person the government hopes to appoint to the role of commissioner. Indeed, one of the government amendments yet to be moved (government amendment No. 5) clearly signals this government's hope to attract a judicial officer to the role. Members will also be aware that clause 9 allows the Governor to apply the Judges' Pensions Act to the commission.

As the Hon. Mark Parnell pointed out, one of our concerns is that this provision could restrict applicants to the role, given that it is likely that they could be in employment while indicating their desire for another position, and that could be quite prejudicial to their current position. In these circumstances, as I said, this appointment process is consistent with all other state commissioners appointed for a limited term and it is for these reasons that the government opposes this amendment.

The committee divided on the amendment:

AYES (12)
Bressington, A. (teller) Brokenshire, R.L. Dawkins, J.S.L.
Franks, T.A. Hood, D.G.E. Lensink, J.M.A.
Lucas, R.I. Parnell, M. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G.
NOES (7)
Darley, J.A. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Hunter, I.K. Kandelaars, G.A.
Wortley, R.P.
PAIRS (2)
Lee, J.S. Zollo, C.

Majority of 5 for the ayes.

Amendment thus carried.

The Hon. S.G. WADE: I move:

Page 13, lines 7 and 8 [clause 7(2)]—Delete 'consecutive terms (including any term as Deputy Commissioner)' and substitute:

terms (including any term as Deputy Commissioner or Acting Commissioner)

The government proposes that the maximum term of appointment, including the position of deputy, be 10 years. This is what the opposition regards as a clarifying amendment, one of a series which tightens the legislation to achieve that goal.

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 13, after line 15—After subclause (3) insert:

(3a) If a person is a judicial officer immediately before being appointed to be the Commissioner—

(a) the conditions of the appointment should not be less favourable to the person than the conditions of his or her judicial office (when viewed from an overall perspective); and

(b) for the purposes of determining the person's entitlement to recreation leave, sick leave, long service leave or any other kind of leave under this or another act, the appointment may, at the option of the person, be taken to be a continuation of his or her service as a judicial officer.

The purpose of this amendment is to send a very clear signal to judicial officers that, if they are minded to consider an appointment as the independent commissioner against corruption, their current entitlements will not be forgone as a consequence of such an appointment. The calibre of the commissioner is of paramount importance to the successful implementation of this public integrity reform, and we need the best possible person to accept the appointment of commissioner.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clause 8.

The Hon. S.G. WADE: I move:

Page 14, lines 24 and 25 [clause 8(3)]—Delete 'consecutive terms (including any term as Commissioner)' and substitute:

terms (including any term as Commissioner or Acting Commissioner)

The opposition regards this amendment as consequential on amendment No. 3 [Wade-1].

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried; clause as amended passed.

Clause 9.

The Hon. S.G. WADE: In relation to clause 9, I ask the government: are we talking about a person-specific instrument, that is, one that will be issued for each incumbent?

The Hon. G.E. GAGO: Yes; I have been advised that that is so. It is specific for each appointment.

The Hon. S.G. WADE: Is it possible under clause 9(1) for the Governor's instrument to be used as an inducement to incumbents in terms of the application of the act during their term of service rather than at appointment?

The Hon. G.E. GAGO: The advice I have received is that that is not what this provision tried to do. However, the advice I have received is that it does not necessarily preclude that from occurring but we would need additional advice to check it out, so we are happy to take it on notice.

The Hon. S.G. WADE: I thank the government for indicating that. Considering that the committee has already indicated an interest in the recommittal of an earlier clause, there is time for that. In thanking the minister could I also ask her to consider 92A in the same context? It does raise the risk of a condition being used as leverage on an incumbent, so if the minister could seek advice on both clauses.

The Hon. G.E. GAGO: We will take it on notice.

Clause passed.

New Clause 9A.

The Hon. S.G. WADE: I move:

Page 16, after line 10—After clause 9 insert:

9A—Acting Commissioner

(1) The Governor may appoint a person (who may be a Public Service employee) to act as the Commissioner during any period for which—

(a) no person is for the time being appointed as the Commissioner or the Commissioner is absent from, or unable to discharge, official duties; and

(b) no person is for the time being appointed as the Deputy or the Deputy is absent from, or unable to discharge, official duties.

(2) The terms and conditions of appointment are to be determined by the Governor, except that the person may not act as the Commissioner for more than six months in aggregate in any period of 12 months.

(3) The person appointed to act as the Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

Could I preface my remarks by indicating to the government that I appreciate that the government is not attracted to using the acting commissioner arrangements as a prelude to an ongoing appointment to the ICAC commissioner, and I assure the committee that that is not the only purpose. It is not hard to think of circumstances in which an acting commissioner might be appropriate: for example, the incumbent might need to deal with a health issue and take a break from service and an acting commissioner might be appropriate. By the same token, there might already be a deputy commissioner in place and the government might be very comfortable in appointing a deputy commissioner as acting commissioner for a period.

I should stress that the opposition does not see this amendment as linked to the process of appointment of a commissioner. The opposition is keen to both facilitate the operation of the ICAC by providing for acting appointments and to ensure that acting appointments are not used to circumvent other aspects of the bill. We have already passed, with government support, a change to clause 7 which made sure that the terms of service, including a deputy commissioner and acting commissioner, are counted in terms of the maximum term. I commend this to the committee and to the government as a management tool that will assist the effective discharge of the roles of the ICAC.

The Hon. G.E. GAGO: The government rises to support this amendment.

New clause inserted.

Clauses 10 to 15 passed.

Clause 16.

The Hon. A. BRESSINGTON: I move:

Page 18, after line 4—After subclause (3) insert:

(4) While a Public Service employee is assigned to the Office, directions given to the employee by the Commissioner prevail over directions given to the employee by the chief executive of the administrative unit of the Public Service in which the employee is employed to the extent of any inconsistency.

In doing that, I also speak to [Bressington-2] 6 as it proposes an identical amendment to the Ombudsman Act 1972. The Office for Public Integrity is to be comprised of public sector employees assigned from an administrative unit likely to be the Attorney-General's Department. This is not an unusual arrangement, with the Ombudsman's office (amongst others) staffed in this way. My office contacted the Ombudsman (Mr Bingham) to ensure that reliance on secondment of staff had been an effective management tool for his office.

The Ombudsman reported that it has worked well and offers several advantages to his staff, namely, career advancement opportunities. However, he did identify that it had on occasion created a perceived conflict of interest for these employees for, while seconded employees are of course answerable to the Ombudsman, they also remain answerable under the Public Sector Act 2009 to the chief executive of the administrative unit from which they hail.

In the context of the office of public integrity, a conflict of interest could be perceived if the office of public integrity hears an allegation of corruption, misconduct or maladministration relating to the Attorney-General's department. This perceived conflict could, of course, potentially undermine the perceived independence and integrity of the office of public integrity.

To address this, I propose to amend clause 16(3) of the bill to state that directions given by the commissioner to public servants assigned to the office of public integrity prevail over directions given to the employee by the chief executive of the administrative unit of the Public Service in which the employee is employed, to the extent of any inconsistency.

When I conveyed my intention to amend the bill, the Ombudsman saw value in doing so, but stated however that, if it was to be amended for the office of public integrity, the Ombudsman Act 1972 should also rightly be amended, given their similar nature. As such, I have also had an amendment drafted to amend section 12 of the act, which is [Bressington-2] 5, and I urge other members of the council to consider this.

As I have said before, I believe this ICAC bill to be probably one of the most important bills that we will debate in this place. It has been long awaited, and if there are any potential glitches that can be seen now, then I believe those glitches should be dealt with before this ICAC is established and a review process is undertaken some years down the track.

The Hon. G.E. GAGO: The government rises to support this amendment.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clause 17 passed.

Clause 18.

The Hon. S.G. WADE: In a letter that the Ombudsman sent to me on 26 June 2012, in which he indicated he would also provide a copy to the Attorney-General, he raised a query with respect to clause 18. The letter states:

The third issue is the requirement under subsection 5 of the Whistleblowers Protection Act 1993 for public officers to whom a whistleblower disclosure is made to refer a disclosure which relates to fraud or corruption to the ACB. It appears to me that this provision effectively duplicates the requirement under clause 18 of the bill for matters involving corruption, misconduct or maladministration to be reported to the Office of Public Integrity. It would be helpful to have some explanation on the public record as to why both obligations need to coexist. Alternatively, it may be that section 5, subsection 5 of the Whistleblowers Protection Act 1993 should be repealed as from the date when the ICAC act commences operation.

I ask the minister: does the government agree that there is a duplication of reporting responsibilities and does the government think that both reporting obligations should coexist?

The Hon. G.E. GAGO: The government has already answered this question, but I am happy to repeat it. I did that at the beginning of the committee stage today. I am advised that it is the intention of ICAC as soon as practicable to review the whistleblower legislation and it was considered appropriate not to amend the reporting provisions in that act at this time.

The Hon. S.G. WADE: Considering the whistleblowers act is scheduled for amendment later, if we, on consideration, differ, we can do that in the schedule stage.

Clause passed.

Clauses 19 to 22 passed.

Clause 23.

The Hon. A. BRESSINGTON: I move:

Page 20, after line 37—After paragraph (c) insert:

(ca) if an allegation against a person has been made public and, in the opinion of the Commissioner following an investigation or consideration of a matter under this Act, the person is not implicated in corruption, misconduct or maladministration in public administration—whether the statement would redress prejudice caused to the reputation of the person as a result of the allegation having been made public;

As I stated in my second reading speech, one of my concerns in establishing an ICAC is the potential for an innocent person's reputation to be irrevocably damaged by being the subject of an ICAC investigation, or even by being associated with an ICAC investigation. While there will be a prohibition on publishing details of an allegation being considered or investigated by the ICAC, the reality is (and some members would be acutely aware of this) that the rumour mill and the interstate press are not suppressed.

To provide a mechanism to restore the reputation of an innocent person, this amendment inserts a new subclause (ca) in clause 23—Public statements, to encourage the commissioner to make a public statement if an allegation against a person has been made public and, in the commissioner's opinion, an investigation has cleared the person of wrongdoing and making the statement would redress the prejudice caused to the reputation of the person caused by the allegation being made public.

Whilst clause 23 already enables the commissioner to make such a statement, the existing subclauses are seemingly encouraging a statement during the course of the investigation which, by necessity, will be circumspect due to no findings having been reached and the potential to adversely affect a potential prosecution. Instead, my amendment focuses the commissioner's attention post investigation on determining whether a public statement should be made to clear a person's reputation if the allegation against them has been made public.

Recognising that this will not always be appropriate, the amendment retains the commissioner's discretion as to whether or not such a statement be made. However, where a person's reputation should be restored, the commissioner should be in no doubt that he or she has the power and the support of this parliament to do so.

The CHAIR: The Hon. Mr Wade.

The Hon. S.G. WADE: Does the government want to go first?

The CHAIR: I have given you the call. I am the boss here, okay. The Hon. Mr Wade.

The Hon. S.G. WADE: Sir, that will be the last time I try to defer to the minister. In fact, I almost have to check myself because I was actually going to stand up and say something nice. What I was going to say was that this amendment is typical of numerous amendments—in the sense that the Hon. Ann Bressington and I have put forward—which have benefited from a sustained discussion with the Attorney-General and his office.

Considering that I was driven to make some criticisms of the government's behaviour earlier in the debate, I thought it was relevant that I might pay tribute to the government in the fact that there was a bit of surprise expressed by some members earlier that there seemed to be a remarkable amount of unanimity on a number of his amendments. Significantly, that is because the government has constructively engaged with members about potential amendments to try to find the commonality.

We found this with the weapons bill, that once we got to deadlock conference we realised that there was actually a fair amount of commonality on the policy. If we sat down and talked about the form of the amendments, with the assistance of parliamentary counsel, the time of this committee could be saved.

So, I thank the officers of the government and the Attorney-General for the hours they have put in dialoguing with both the opposition and other members on the amendments because I can assure you that it has saved many hours of consideration of this committee and, to be frank, the possibility of interminable disagreements between the houses and deadlock conference. We will still have disagreements, I am sure, that may well find themselves in a deadlock conference, but I think that the process of giving South Australia better legislation has been significantly improved by the process that has been adopted in this case.

Referring directly to the Hon. Ann Bressington's amendment, this is one of the amendments that were redrafted through discussion. The opposition supports the amendment because, in our view, consistent with our approach to other crime and corruption bills, we are keen to maximise the protection of the innocent. This amendment ensures that the commissioner can act to make a statement to indicate that a person is not implicated in corruption, misconduct or maladministration. It is a 'can': it is a discretion; it is in the hands of the commissioner and we consider that the bill is strengthened by this change.

The Hon. R.L. BROKENSHIRE: Family First supports the Hon. Ann Bressington's amendment. We think that it is a sensible amendment. First, allegations should not become public if this bill works properly. I put on the public record that I would hope and trust that they will not become public from the point of view, as I said earlier, of sledging people. I acknowledge that the government has increased the penalties that are prescribed—which I understand the government's amendment is trying to lift and which we support the government on as well—for publishing that an investigation is underway.

You might argue that reasons are hard to foresee as to how this would ever become public, but it is certainly humanly possible. A matter may become public via the rumour mill, Twitter and so on. So, given that it will be important that there is a positive obligation on the commissioner to consider issuing a public statement if a person has been cleared, then we support this.

I note that the wording in it actually says 'should make a statement', so my understanding is that it will not be absolutely mandatory that the commissioner must make it. However, for the purposes of this clause and supporting it (and I understand that the government supports it, too; and for the commissioner to read this at some stage), I would hope that the commissioner would look after and clear those individuals.

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried; clause as amended passed.

Clauses 24 to 26 passed.

Clause 27.

The Hon. R.L. BROKENSHIRE: We do have some amendments regarding public hearings. I put on the public record that I have discussed this clause with the Attorney, and, based on those discussions and some other matters that we will be debating further into the bill and some commitments the Attorney has indicated the government would look at, we will not move those amendments.

Clause 27 passed.

Clauses 28 to 32 passed.

Clause 33.

The Hon. S.G. WADE: I move:

Page 26, lines 41 and 42 [clause 33(3)]—Delete subclause (3)

This amendment was suggested by the Law Society. The Law Society proposes that section 33(2) should be amended to allow the Supreme Court to require the commissioner to give an undertaking as to damages as a consideration of granting an injunction. Injunctions can be financially harmful, and the Supreme Court should have the power in appropriate cases to require an undertaking. I commend the amendment to the council to allow the Supreme Court that discretion.

The Hon. G.E. GAGO: The government supports the amendment.

Amendment carried; clause as amended passed.

Clause 34 passed.

Clause 35.

The Hon. S.G. WADE: I move:

Page 27, lines 11 to 13 [clause 35(1)]—Delete subclause (1) and substitute:

(1) The Commissioner must, before referring a matter to an inquiry agency, take reasonable steps to obtain the views of the agency as to the referral.

The act requires that the ICAC cannot refer a matter to an inquiry agency or a public authority without consulting the agency or authority. In our view this requirement is vague, and whether or not it has been fulfilled may well lead to disputation and unnecessary delay. This amendment proposes that the bill should require the ICAC to merely take reasonable steps (I do not mean 'merely' in terms of dismissing them as light), and if they take reasonable steps they should be assured that they can proceed.

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried.

The Hon. S.G. WADE: I will interpose with another question from the Ombudsman (and I ask the forgiveness of the minister in advance if, like my previous query, it has been answered in her earlier statement). In a letter the Ombudsman sent to me on 26 June 2012, with a copy to the Attorney-General, he raised a query with respect to clause 35(5). I will give two separate excerpts, as follows:

The second issue is clause 35(5) of the bill, which in effect entitles the commissioner to take over a matter which is under investigation by my office and to exercise the powers of the Ombudsman in relation to that matter. The Attorney-General has stated at a recent forum that I attended that he expects that this power will be very rarely, if ever, used.

Later in the letter, the Ombudsman states:

Against this background it would be helpful to have a clearer understanding of the circumstances in which the commissioner might seek to exercise the Ombudsman's powers as envisaged by subclause 35(5).

The Hon. G.E. GAGO: The government has answered this question already today. I will answer it again. The short answer is that it remains to be seen. It must be emphasised that there is no intention for this power to be used regularly. The power exists for the rare circumstance when the ICAC may wish to investigate a systemic problem of misconduct or maladministration. The inclusion of this power is not a reflection on the ability of the Ombudsman or his office to carry out their functions.

The Hon. S.G. WADE: I move:

Page 27, after line 34 [clause 35(5)]—After paragraph (e) insert:

(ea) the Commissioner may, if of the opinion that the conduct the subject of the matter may develop into corruption in public administration, conduct an examination or require a person to produce a document or thing as if the Commissioner were conducting an investigation into corruption in public administration; and

The opposition considers that this bill delivers an ICAC-lite, but rather than seek to recast it into our preferred model we have decided to support the establishment of the ICAC and to promote its evolution over time. The bill has a series of amendments which highlight the different approach of the opposition and the government. There is a series of amendments that highlight that this government is trying to set up an ICAC-lite.

The first such amendment was the Hon. Ann Bressington's amendment to require parliamentary concurrence with the appointment of the commissioner. In my view, this amendment is another key amendment. As I said in my comments on clause 5, this bill proposes a high threshold for corruption in that it focuses the commissioner on criminal conduct in public administration. As I said in my comments on clause 5, that is an exceptionally high threshold and not consistent with the thresholds applied in other ICACs around Australia. It is not consistent with the international definition, and it is not consistent with the Hon. Mr Brokenshire's bill or my leader's bill in relation to an ICAC.

Setting the bar so high means that the scope of the ICAC operation is too narrow and the ICAC is likely to be more reactive rather than having an early detection and prevention focus. Let us remember that the government was reluctant to introduce an ICAC, and this is yet another demonstration of its ongoing reluctance to have a full-blooded ICAC. Whilst the opposition is not proposing to amend the threshold at this stage or to recast the commission, this amendment simply seeks to amend the bill to ensure that the commissioner can use their powers to deal with emerging risks before they become criminal and harder to detect. The government is not oblivious to this risk. In his second reading speech in the other place, the Attorney-General said:

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.

The government's response is to allow the commissioner to stand in the shoes of an integrity agency and take over any matter using the powers of that agency, but one has to ask, 'Why bother?' The integrity agency from which it has taken over the inquiry already has those powers.

We suggest that not only should that 'stand in the shoes' power be available but we also believe that the commissioner should have the capacity, if they are of the view that conduct is at risk of becoming corruption (in other words, to try to prevent misconduct and maladministration becoming corruption) and that the use of their powers is appropriate and necessary to investigate the matter, then they should be able to use their ICAC powers. So, I commend the amendment to the house.

The Hon. G.E. GAGO: I do not have a long contribution. The government rises to oppose this amendment. This amendment is in relation to the ability of the commissioner to step into the shoes of an inquiry agency in the rare circumstance that this action may be necessary. The ability of the commissioner to take this action is constrained by the fact that the commissioner may only use the powers provided to the inquiry agency concerned.

The commissioner is not entitled to use their powers in this capacity because those powers should not be used unless the commissioner is investigating corruption. The opposition's amendment allows the commissioner to use those coercive powers when investigating maladministration or misconduct. The government cannot support that ability. If the commissioner becomes aware of a potential issue of corruption, the commissioner should take an investigation in their capacity as the independent commissioner against corruption.

The line between an investigation about corruption, with all of the coercive powers that this type of investigation permits, and an investigation by the commissioner in the capacity of another inquiry agency should be clearly and distinctly drawn.

The Hon. S.G. WADE: Just by way of clarification; the minister is incorrect to say that this would empower the commissioner to take over any example of misconduct or maladministration. It is only the case if they are of the view that it may develop into corruption.

Amendment negatived; clause as amended passed.


[Sitting suspended from 18:04 to 19:45]


Clause 36.

The Hon. S.G. WADE: I move:

Page 28, lines 21 to 23 [clause 36(1)]—Delete subclause (1) and substitute:

(1) The Commissioner must, before referring a matter to a public authority, take reasonable steps to obtain the views of the authority as to the referral.

I regard this amendment as related to [Wade-1] 7.

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 28, after line 33—After subclause (3) insert:

(3a) The Commissioner may not give directions to a House of Parliament or the Joint Parliamentary Service Committee in relation to a matter concerning a public officer.

This is ancillary to amendment No. 1, which deals with the issue of parliamentary privilege not being affected by the operation of this legislation.

The Hon. S.G. WADE: As I indicated before, the Liberals support the parliamentary amendments, if you like, and appreciate the government's cooperation in fixing this issue between the houses. I would ask this question of the minister: why is the bar on direction limited to matters related to a matter concerning a public officer? To underscore the point, the concluding words say 'in relation to a matter concerning a public officer'. Is it possible for the commissioner to direct parliament in relation to a public authority or a private citizen involved in a corruption matter?

The Hon. G.E. GAGO: I have been advised that it is the intention of this amendment to preserve the independence of members of parliament so that the commissioner cannot direct members of parliament to do particular things. The commissioner is not concerned with recommendations concerning public authorities and private individuals or citizens, other than in the context of their educative role and review functions.

The Hon. S.G. WADE: Could I indicate to the government that I would like to have further discussions with the government about this and it might be added to the list of further clauses to be considered because I think it is quite conceivable that a commissioner might be tempted to give directions in relation to a public authority even if they are investigating a particular person. For example, a commissioner—

The Hon. G.E. Gago: We are happy to recommit.

The Hon. S.G. WADE: Yes, let me just make the point so you do not have to guess what I am thinking.

The Hon. G.E. Gago: I might change my mind.

The Hon. S.G. WADE: Yes, I will be brief, but it is for the benefit of your officers rather than yourself, minister. It is conceivable, for example, that a commissioner might be looking into the behaviour of a councillor at Burnside council and take the view that a select committee of the Legislative Council looking at Burnside council would be inconvenient, and they may give a direction to the parliament in that respect. I would urge the government to look at a broader set of words. I certainly respect the spirit and the cooperation of the government, but I think this might be an opportunity to enhance the amendment.

Amendment carried; clause as amended passed.

Clause 37 passed.

Clause 38.

The Hon. G.E. GAGO: I move:

Page 29, after line 31—After subclause (4) insert:

(5) The Commissioner may not evaluate the practices, policies and procedures of a House of Parliament or a judicial body.

Again, this is ancillary to amendment No. 1.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clauses 39 to 42 passed.

Clause 43.

The Hon. R.L. BROKENSHIRE: I did touch on this a little earlier. Having had discussions with the government, whilst I believe that there is merit in as much transparency as possible, including with respect to public hearings, I understand that the opposition and the government had some concerns over this.

I therefore will not be proceeding with the amendment, but I want to put on the public record that I am advised that the government will intend to ensure that, when it comes to the commissioner for ICAC actually looking at policy matters and possibly reviewing acts, which we will talk about a little bit later with another amendment, those hearings will be public. Based on that, I am prepared to accept the government's word and not proceed further.

The Hon. S.G. WADE: Almost by way of clarification, the member alluded to opposition concerns in relation to a previous amendment the member foreshadowed in relation to clause 27 and did not move. I just would not want the committee or the public to be left with the impression that the opposition in any way supports the compromise that the member is foreshadowing, which is that public hearings are only necessary for public inquiry matters.

We have made it very clear that we do not believe that a blanket ban on public hearings is consistent with a transparent, effective ICAC. No other ICAC in Australia has it. We have indicated that, in government, we will review that aspect and enhance the ICAC to try to give South Australians not the ICAC-lite that this government has offered them but the full-blooded ICAC that they expect and deserve.

Clause passed.

Clause 44.

The Hon. G.E. GAGO: I move:

Page 32, lines 32 and 33 [clause 44(1)]—Delete 'to determine whether powers under this Act were exercised in an appropriate manner' and substitute:

of the operations of the Commissioner and the Office

Page 32, after line 34—After subclause (1) insert:

(1a) Without limiting the matters that may be the subject of a review, the person conducting a review—

(a) must consider—

(i) whether the powers under this Act were exercised in an appropriate manner and, in particular, whether undue prejudice to the reputation of any person was caused; and

(ii) whether the practices and procedures of the Commissioner and the Office were effective and efficient; and

(iii) whether the operations made an appreciable difference to the prevention or minimisation of corruption, misconduct and maladministration in public administration; and

(b) may make recommendations as to changes that should be made to the Act or to the practices and procedures of the Commissioner or the Office.

Page 32, after line 39—After subclause (3) insert:

(3a) The report must not include information if publication of the information would constitute an offence against section 54.

The amendment clarifies the review function of the annual reviewer of the operations of the commission and the OPI. The reviewer is an independent person whose function is to consider whether the powers of the commissioner were exercised appropriately and whether OPI and the legislative scheme are operating effectively.

This amendment raises particular matters that the reviewer ought to consider, including whether the commissioner's powers were exercised in an appropriate manner and whether the operations of the ICAC made an appreciable difference to the prevention or minimisation of corruption in public administration. These functions are appropriately placed with the independent reviewer.

The final amendment clarifies that the reviewer may not publish in his or her report any information that would constitute an offence against clause 54 of the bill. This is consistent with the clear policy underpinning this bill, namely, that the commissioner is an investigator and such investigations should be kept confidential until they are part of a prosecution.

The Hon. S.G. WADE: I rise to indicate that the opposition will be supporting this series of amendments. In offering our support we would indicate that we see the expansion of the annual review and the expanded role of the committee as complementary. The government and the opposition, and I am sure all members, share a desire to make sure that appropriate confidentiality is maintained in commissioners' proceedings.

We think that the reviewer with an expanded role complements the work of the committee because having a reviewer with the capacity to access confidential information will allow the committee to consider information that it would not otherwise be able to properly consider. If you like, the reviewer is a filter or a preparatory stage to parliamentary consideration. I would expect that the committee and the reviewer would cooperatively develop their work programs to ensure their activities complement rather than duplicate.

The Hon. R.L. BROKENSHIRE: I have a question for the minister. I understand that this actually confines a review to the commissioner and the Office of Public Integrity. There are amendments about lobbyists and whistleblowing. Whilst I acknowledge that we can debate them down the track, I want clarification as to the degree that matters with respect to the review would be looked at, because I understand that the commission will be reviewing things like the code of practice for lobbyists.

The Hon. G.E. GAGO: I have been advised that what this involves is an annual review of the commissioner by an independent reviewer. The review of the whistleblowers legislation and the lobbyists code of conduct will be conducted by the commissioner under their functions as outlined in section 6, once they are appointed.

Amendment carried; clause as amended passed.

Clause 45.

The Hon. S.G. WADE: I move:

Page 33, line 4—Delete 'Crime and Corruption Policy Review Committee' and substitute:

Crime and Public Integrity Policy Committee

This is the first amendment related to the parliamentary oversight committee. We will have discussion about more details about that committee later but I think it would be fair to say that both the government and the opposition are of the view that the committee should be broadened to include crime and corruption, that it should have a policy focus rather than the reviewing function as we have just considered in relation to the annual review. This is the first of a series of amendments and changes that are made to reflect that expanded role of the committee.

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried; clause as amended passed.

Clauses 46 to 52 passed.

Clause 53.

The Hon. R.L. BROKENSHIRE: I have already highlighted this on a couple of occasions, so I do not think I need to repeat myself and hold up the proceedings. As I said, I put on the public record that we expect with all the reviews—policy reviews, legislation reviews and departmental reviews—that they will be held in public.

Clause passed.

Clause 54.

The Hon. G.E. GAGO: I move:

Page 36, line 7 [Clause 54, penalty provision]—Delete the penalty provision and substitute:

Maximum penalty:

(a) in the case of a body corporate—$150,000;

(b) in the case of a natural person—$30,000.

The purpose of this amendment is to insert a penalty for corporations for a breach of the public offence.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clause 55.

The Hon. A. BRESSINGTON: I move:

Page 36, after line 29—After subclause (4) insert:

(4a) In proceedings against a person seeking a remedy in tort for an act of victimisation committed by an employee or agent of the person, it is a defence to prove that the person exercised all reasonable diligence to ensure that the employee or agent would not commit an act of victimisation.

(4b) A person who personally commits an act of victimisation under this Act is guilty of an offence.

Maximum penalty: $10,000.

(4c) Proceedings for an offence against subsection (4b) may only be commenced by a police officer or a person approved by either the Commissioner of Police or the Director of Public Prosecutions.

I move this amendment and in doing so speak to [Bressington-2] 7, which proposes an identical amendment to the Whistleblowers Protection Act 1993. As members may be aware, the inadequacy of the whistleblower protection in this state has long been a concern of mine. On too many occasions I have seen the lives of those who have come forward to the benefit of the wider community to expose corruption or wrongdoing destroyed by the insidious recriminations of others.

Whilst I cannot address all of my concerns in amendments to this particular bill, I believe the amendment I propose both significantly advances whistleblower protection and the role of the ICAC commissioner. As I detailed in my second reading contribution, the amendments I have moved seek to criminalise the victimisation of a whistleblower under section 9 of the Whistleblowers Protection Act 1993 and of those who make a report to or assist the commissioner under clause 55 of the Independent Commissioner Against Corruption Bill 2012.

South Australia is the only state or territory not to hold those who victimise whistleblowers criminally liable. Every other state and territory has recognised that those who victimise whistleblowers who have come forward to the benefit of the wider community harm the interests of the community and not just those on whom they seek their revenge. For example, section 20(1) of the New South Wales Public Interest Disclosures Act 1994 provides:

A person who takes detrimental action against another person that is substantially in reprisal for the other person making a public interest disclosure is guilty of an offence.

Section 14(1) of the Western Australian Public Interest Disclosure Act 2003 states:

A person must not take or threaten to take detrimental action against another because anyone has made, or intends to make, a disclosure of public interest information under this act.

Utilising the existing definition of victimisation in section 9(1) of the Whistleblowers Protection Act 1993 and clause 55(1) of the bill in which the necessary elements of what constitutes victimisation are detailed, the offence I propose simply reads:

A person who personally commits an act of victimisation under this act is guilty of an offence.

Despite suggestions to the contrary, all the necessary elements of an offence are present. By making the victimisation of a whistleblower a criminal offence, the state, either through the commissioner if committed by a public servant or otherwise the police, will assume some responsibility for investigating and proving that a whistleblower has been victimised. Instead, this task currently falls to the whistleblowers themselves.

Additionally, by making victimisation a criminal offence, the commissioner will be able to play an active role in protecting those who speak out. Despite the Independent Commissioner Against Corruption Bill 2012 purporting to protect those who make a complaint or to assist the commissioner, currently the commissioner will be unable to pursue those who seek their revenge and will be forced to simply direct victimised whistleblowers to the courts or the Equal Opportunity Commission for redress. This stands in stark contrast to the extensive protections, powers and offences available to its interstate counterparts.

The amendment also seeks to introduce a part defence to the existing civil action a victimised whistleblower may commence. Essentially, where a whistleblower is seeking to hold an employer vicariously liable for their victimisation, a defence will be available to the employer if they can prove that they exercised all reasonable diligence to ensure that their employees or agents would not commit an act of victimisation.

This is in part recognition that the evidentiary burden borne by a whistleblower would be reduced if they can rely on evidence from a criminal investigation, but mainly it is to encourage employers, particularly state administrative units, to do all they can to protect those who disclose corruption and wrongdoing in their midst and not simply rely on the existence of policies that may or may not be adhered to.

A similar defence in the Equal Opportunity Act, which to my understanding already applies to victimisation proceedings pursued under that act, has been interpreted to require direct action by the employer, and not simply having policies in place—in other words, that world of paper policy that we have all come to know so well. Similarly, an equivalent defence available to the state in Queensland has reportedly been effective in promoting the culture change that I seek and have sought since I came into this place.

Members may be aware that the Attorney-General wrote to me regarding my amendments and expressed his opposition to using this bill to address the deficiencies of whistleblower protection—and I might add he accepts that there are serious deficiencies with that bill—and instead proposed that the independent commissioner against corruption be tasked with reviewing the Whistleblower Protection Act 1993. As members would have seen in my response to the Attorney-General, I do not believe a promise to review the act is adequate justification to delay the progress to the whistleblower protection my amendments represent.

Again, I am hardly proposing that South Australia take the lead here, but rather that it should catch up to every other state and territory and soon the commonwealth. However, I nonetheless hope the Attorney-General will follow through on his commitment to review the act regardless of whether these amendments pass or not. As I stated, I am unable to address all of the inadequacies of whistleblower protection in this bill, and such a review would hopefully provide the impetus to do so.

I advise members and the government that during the dinner break I had an amendment drafted to have in legislation this promise of a review of the Whistleblower Protection Act. I hope members can see fit to support these amendments. It is plain to me that those who victimise whistleblowers should be held criminally liable by the state for doing so. It is also plain that those who attempt to victimise someone who has made a complaint to, or assisted, the commissioner should also be criminally punished for doing so. I commend the amendment to the committee.

The Hon. S.G. WADE: I rise to indicate that the Liberal opposition will be supporting this amendment in relation to victimisation. I thought it might assist the committee if I highlight some information that came on to the public record in the last couple of months. First, I would like to quote from the Adelaide Advertiser on 19 July 2012. Sean Fewster reported:

South Australians trust the state government less than anyone else in the country—but are the least likely to report corruption, a survey has found.

The Newspoll survey found that just 21 per cent of respondents feel the government keeps 'the right amount' of secrets from the public. Only 42 per cent believe that, were they to become whistleblowers, their claims would be acted on and they would be protected from retribution.

The Newspoll to which Mr Fewster refers provides data which is even more compelling. In relation to the question, 'If I reported some wrongdoing by someone in my organisation, I am confident something appropriate would be done about it'—very much to do with whistleblowers and victimisation—South Australia's agree rate is only 42 per cent. That is 10 per cent below the nearest other state and almost half that of the lead state, Tasmania.

The fact is that these are not just, if you like, theoretical concerns of citizens, rather they are experiences on the ground. I would also draw the committee's attention to the report in The Australian on Friday, 13 July 2012. Sarah Martin wrote an article entitled, 'Terrorised whistleblower wants answers', and I quote:

An eight-month campaign of fear and violence against a South Australian Department of Health manager, including death threats against her children, has forced her to move house 11 times. Her lawyer and doctor have condemned the state government and police response to her case, saying they failed to adequately protect her after she allegedly uncovered fraud in the department.

The story goes on. These are not theoretical concerns: these are real impacts on real people trying to do the right thing. I think this parliament should be very concerned that our citizens do not trust those in authority to the extent that they feel they can report wrongdoing. I commend the Hon. Ann Bressington for putting this clause before the parliament, and the Liberal opposition will be supporting it.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The government does not support this particular proposed change. The government has consulted with the Director of Public Prosecutions and the Commissioner of Police. Both do not support this amendment. Clause 55 of the bill defines 'detriment' as including injury, intimidation or harassment, and threats of reprisals. Acts causing such detriment are already captured by the criminal law.

I refer members particularly to section 248 of the Criminal Law Consolidation Act 1935. This provision provides inter alia an offence for a person to stalk another person on account of anything said or done by that person in the course of assisting a criminal investigation. Stalking includes a wide variety of conduct, including loitering outside a place frequented by the person, sending offensive material to the person or communicating with others about the person in a manner that could reasonably expect to arouse the other person's apprehension or fear.

In addition to the criminal offences, it is an offence in this bill and in the whistleblowers legislation to disclose the identity of a complainant or informant. Clause 11 of schedule 2 provides for an examiner to make arrangements to avoid prejudice to the safety of a person or to protect a person from intimidation or harassment. Acts that do not fall within conduct that is criminalised by the current criminal law are not in the government's, the DPP's and the police's view appropriately dealt with by the Hon. Ms Bressington's amendment. It is for these reasons the government opposes this amendment.

The Hon. M. PARNELL: Looking at the government's bill and the honourable member's amendment, if we stick with what the government has, then we do have a fairly broad definition of detriment which would trigger the victimisation section. However, the main shortcoming that I can see with the government's section as drafted is that there are only two real avenues for a person who could be appallingly treated in their workplace for having disclosed corruption and blown the whistle.

Those two courses of action are either an action in tort—and we know that the civil courts are primarily for the well-to-do or the reckless; bringing an action in tort against an alleged wrongdoer is not something that a person is likely to engage in lightly—or secondly there are the Equal Opportunity Act provisions that can be dealt with as well. The question before us really is: how seriously do we treat the victimisation of people who are discriminated against and who are detrimentally treated as a result of their having, in the public interest, disclosed corruption and wrongdoing?

The Greens' position is that that sort of conduct is serious and is deserving of criminal sanctions, so whilst incorporating it into this bill at this time might be seen as a backdoor method of rewriting the whistleblower protection laws, we do think that it is an appropriate response because the consequences of not taking victimisation seriously is that we end up with the situation that the Hon. Stephen Wade referred to where large numbers of people are not prepared to come forward and disclose wrongdoing that they come across. There are the civil options available; I think they are inadequate and a criminal option, I think, sends the right message about how seriously this parliament takes victimisation.

The Hon. R.L. BROKENSHIRE: Whilst I have indicated that I will speak further to the issue of the whistleblower amendment based on the fact that I understand the government will commit to a full review of the whistleblower act, I just want confirmation from the minister that, from what I think I heard her say, the government's argument is that it is inappropriate as these are often employment matters and maybe the government thinks SafeWork SA would be appropriate. However, based on what I have seen under section 56 regarding bullying and harassment in the public sector act, I think it is wise to actually strengthen the issues around people being victimised in the workplace—or anywhere, for that matter—when they come forward.

A lot of the time this will be from situations in the workplace where they see possible corrupt activities occurring, so I cannot really see that there is actually a problem in just having some strength, given that the government has already identified the victimisation issue. If they did not think there was an issue at all with victimisation, why would they bother to have that part in the act?

They clearly consider there is an issue, but then they are opposing tougher penalties around that as a way of encouraging people not to victimise those who go before the commissioner with a concern. I would not mind some further clarification on that. Particularly, the minister may have said and I could not hear: what is the reason specifically for the police being opposed to having some fairly tough penalties around victimisation?

The Hon. G.E. GAGO: This was the police commissioner's advice to the government. His advice was that he does not support this provision. You would need to discuss those reasons with the police, but they certainly provided us with advice that they do not support this particular amendment.

The Hon. S.G. WADE: Just by way of footnote, could I remind members of the committee that the Hon. Ann Bressington's amendment refers to victimisation generally, not just victimisation of whistleblowers. It may well be that some South Australians who might be victimised in relation to their relationship with ICAC might otherwise be able to rely on the Whistleblowers Protection Act. However, it is quite conceivable that South Australians would engage with ICAC, not be a whistleblower and not be able to access that act. But they still should be entitled to protection. I support the Hon. Ann Bressington's amendment.

The Hon. R.L. BROKENSHIRE: For the record, can I ask whether it was the former commissioner or the current commissioner who gave this advice to government?

The Hon. G.E. GAGO: It was the former commissioner, but the current commissioner has reconfirmed his support for the former commissioner's position in relation to this.

The committee divided on the amendment:

AYES (12)
Bressington, A. (teller) Brokenshire, R.L. Dawkins, J.S.L.
Franks, T.A. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Vincent, K.L. Wade, S.G.
NOES (7)
Darley, J.A. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Hunter, I.K. Kandelaars, G.A.
Wortley, R.P.
PAIRS (2)
Stephens, T.J. Zollo, C.

Majority of 5 for the ayes.

Amendment thus carried; clause as amended passed.

Clauses 56 and 57 passed.

Clause 58.

The Hon. G.E. GAGO: I move:

Page 37, line 31 [Clause 58(2)(a)]—Delete '(other than public officers)'

The purpose of this amendment is to allow for the Governor to make provision for the payment of expenses, including legal costs, that any person may incur by complying with attendance at or producing documents or things to the commissioner, the deputy commissioner, an examiner or investigator. This provides capacity to declare a scheme for payment to public officers of legal costs otherwise not covered, on a similar basis to arrangements for members of the South Australian Public Service.

The Hon. S.G. WADE: I indicate that the opposition will be supporting the amendment but may seek to recommit the clause.

Amendment carried; clause as amended passed.

Clause 59 passed.

Schedule 1.

The Hon. G.E. GAGO: I move:

Page 38, lines 17 to 40 [Schedule 1, table, rows 3 to 6 (ignoring header row) relating to the Legislative Council and the House of Assembly]—Delete all words on these lines and substitute:

a Member of the Legislative Councilan officer of the Legislative Councila person under the separate control of the President of the Legislative Council Legislative Council
a Member of the House of Assemblyan officer of the House of Assemblya person under the separate control of the Speaker of the House of Assembly House of Assembly
a member of the joint parliamentary service Joint Parliamentary Service Committee


This amendment is necessary to preserve the independence of members.

The Hon. S.G. WADE: Members might have guessed that there is no disagreement between the government and the opposition on this, because we have identical amendments filed. I indicate that it reflects what I regard as poor drafting in the original bill. The fact that the government could think it was appropriate that the Premier would be the designated responsible minister in respect of the Governor, members and officers of the parliament shows a clear misunderstanding of the nature of our constitutional relationships. The issue was raised by the opposition in the House of Assembly. We appreciate the steps taken to put forward a more appropriate set of amendments and we support the amendment that the minister has moved.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 39, after line 34—After the entry relating to the Local Government Association of South Australia insert:

a person who is a member of the governing body of the Local Government Association of South Australiaan officer or employee of the Local Government Association of South Australia the Local Government Association of South Australia the Minister responsible for the administration of the Local Government Act 1999


This amendment is in response to a request from the Local Government Association. It sets out who the officer, public authority and relevant minister is for the inclusion of the Local Government Association to come under the proposed legislation. The amendment moved in the other place to include the LGA did not identify the officer, public authority and relevant minister in this particular way.

The Hon. S.G. WADE: The amendment that the minister referred to in the other place was done precipitously by the Attorney-General when his lack of consultation with the LGA was brought to the attention of that house. We are glad that the government is putting that behind it and suggesting a credible set of relationships for schedule 1 in relation to the ICAC.

Amendment carried; schedule as amended passed.

Schedule 2 passed.

Schedule 3.

The Hon. G.E. GAGO: I move:

Page 53, after line 11—After Schedule 3 Part 3 insert:

Part 3A—Amendment of City of Adelaide Act 1998

3A—Repeal of Part 3 Division 3

Part 3 Division 3—Delete the Division

3B—Repeal of Part 3 Division 7

Part 3 Division 7—Delete the Division

3C—Repeal of Schedule 2

Schedule 2—Delete the Schedule

3D—Transitional provision

Following the repeal of Part 3 Division 7 of the City of Adelaide Act 1998 by clause 3B—

(a) the Register of Interests maintained by the chief executive officer of Adelaide City Council under that Division will be taken to be the Register of Interests the chief executive officer is required to maintain under section 68 of the Local Government Act 1999; and

(b) the information entered into that Register before the repeal will be taken to have been furnished in a return submitted pursuant to Chapter 5 Part 4 Division 2 and Schedule 3 of the Local Government Act 1999.

The purpose of this amendment is to ensure consistency between councils. The City of Adelaide Act includes provisions for a code of conduct for members and a separate register of interest process. It is important that the obligations of the council members are the same throughout South Australia regardless of the particular council that they represent.

The Hon. S.G. WADE: The opposition has been advised by the City of Adelaide that they support that, and we also support the general policy point the minister just raised. We support the amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 55, after line 13—After clause 8 insert:

8A—Amendment of section 248—Threats or reprisals relating to persons involved in criminal investigation or judicial proceedings

Section 248(4)(a)—Delete 'police with their' and substitute: 'a law enforcement body with its'

Section 248 of the Criminal Consolidation Act is titled 'Threats or reprisals relating to persons involved in criminal investigations or judicial proceedings'. This amendment ensures that persons assisting ICAC with their inquiries will be taken to be involved in a criminal investigation for the purpose of this particular section.

The Hon. S.G. WADE: The opposition supports this amendment.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 56, lines 14 to 16 [Schedule 3, clause 14(1), inserted paragraph (fa)]—Delete paragraph (fa)

It removes reference to the local government indemnity scheme, the purpose of which is to put the LGA scheme on the same basis as comparable government schemes.

The Hon. G.E. GAGO: The government rises to support this amendment. The purpose of this amendment is to make it clear that the LGA is exempt from the Freedom of Information Act together with all units of the LGA including the Mutual Liability Scheme.

Amendment carried.

The Hon. S.G. WADE: I have a question on clause 37. Again it relates to a local government matter. The question that I understand the LGA wants put is in relation to clause 37, in other words, proposed insertion of section 263B Outcome of Ombudsman's Investigations. What action will the Minister for State/Local Government Relations take if a council fails to implement the recommendation of the Ombudsman to impose a penalty on a council member? Further, what action will the minister take if the council imposes a penalty on a member who fails to accept the penalty and then the council fails to prosecute the matter in the District Court?

The Hon. G.E. GAGO: We have actually answered all of those.

The Hon. S.G. WADE: If that is the case—

The Hon. G.E. GAGO: I am pretty sure that these are all on the record.

The Hon. S.G. WADE: Let's not reread them. Did you say they were on the record?

The Hon. G.E. GAGO: They are. If you are still not satisfied with those answers, you can look them up. We have answered them all and it seems to be a waste to repeat them.

The Hon. S.G. WADE: That's fine. I move:

Clause 40, page 65, after line 9 [Schedule 3, clause 40, inserted section 272]—After subsection (3) insert:

(4) The Ombudsman must, at the request of the Minister, provide to the Minister an interim report relating to the investigation, or to any aspect of the investigation specified by the Minister.

(5) The Minister must supply the council with a copy of an interim report and give the council a reasonable opportunity to make submissions to the Minister in relation to the matter unless the Minister considers that providing the report or such an opportunity would be likely to undermine the investigation.

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 the council and a referral to the Ombudsman may be made on the basis of a report.

Section 274 is proposed to be further amended by requiring the minister before referring the 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 its investigations. 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 council with this or another act.

The opposition's main concern here is that we believe there should be an opportunity for the Ombudsman to make an interim report regarding an investigation under this section. We have consulted with the Ombudsman on this matter and he said that he does not have a problem with this amendment. He has a general obligation to keep complainants informed of the progress of their complaints and this amendment would be consistent with that general obligation.

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Clause 43, page 65, after line 28—Before subclause (1) insert:

(a1) Section 3(1), definition of administrative act, (d)—after 'Crown' insert:

or an agency to which this Act applies

The purpose of this amendment is to ensure that all agencies under the Ombudsman's jurisdiction are in the same position with regard to acts by legal advisers. One such agency is the Local Government Association's Mutual Liability Scheme. The government recognises the important role of the Mutual Liability Scheme in enabling councillors to meet the obligations to have insurance cover for civil liability claims. The government has no intention for the inclusion of the scheme within the ambit of the Ombudsman's jurisdiction to affect the commerciality of that scheme.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

Page 66, after line 8—After Schedule 3 clause 43 insert:

43A—Amendment of section 12—Officers of Ombudsman

Section 12—after subsection (2) insert:

(2a) While a Public Service employee is assigned to work in the office of the Ombudsman, directions given to the employee by the Ombudsman prevail over directions given to the employee by the chief executive of the administrative unit of the Public Service in which the employee is employed to the extent of any inconsistency.

I consider this to be consequential to [Bressington-2] 2.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 67, after line 35—After Schedule 3 clause 48 insert:

48A—Repeal of section 31

Section 31—delete the section

This amendment seeks to repeal section 31, which deals with reports to the statutory officers, because this role is proposed to be taken by the Parliamentary Oversight Committee.

The Hon. G.E. GAGO: The government supports the amendment.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

Page 67, after line 39—After Schedule 3 clause 49 insert:

49A—Amendment of section 15I—Functions of Committee

Section15I(1)(a)(ii)—after 'that office' insert:

(unless another Committee has the function of inquiring into, considering and reporting on the performance of those functions)

I also consider this amendment to be consequential to [Bressington-2] 1.

The Hon. G.E. GAGO: The government does not accept that the amendment is consequential, but we support it anyway.

The Hon. S.G. WADE: I do have [Wade-1]16, but I do not intend to move it. I prefer the Hon. Ann Bressington's amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 69, after line 24 [Schedule 3, clause 50, inserted section 15Q]—After subsection (1) insert:

(1a) A Minister of the Crown is not eligible for appointment to the Committee.

This amendment is consistent with the membership of other committees.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 68, line 3 to page 69 line 6 [Schedule 3, clause 50, inserted Part 5E]—Delete Part 5E

This amendment proposes to remove the reference to the conduct committee. We consider that the current mechanisms of the parliament to oversee conduct are to be preferred. But, of course, the provisions in the act for the parliament to lay down codes of conduct are retained.

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 69—

Lines 7 and 8 [Schedule 3, clause 50, inserted Part 5F heading]—Delete 'Crime and Corruption Policy Review Committee' and substitute 'Crime and Public Integrity Policy Committee'

Line 11 [Schedule 3, clause 50, inserted section15P]—Delete 'Crime and Corruption Policy Review Committee' and substitute Crime and Public Integrity Policy Committee

I regard these amendments as consequential to [Wade-1] 10.

Amendments carried

The Hon. S.G. WADE: I move:

Page 69, line 14 [Schedule 3, clause 50, inserted section 15Q(1)]—Delete '7' and substitute '6'

I might try to seek an indication from the government whether it is likely to support this and whether it would like the full comments. Presumably, we are entering this series of amendments with the discussion as to whether it be a House of Assembly committee or a Legislative Council committee.

This amendment seeks to reduce the overall number of members appointed to committees so that, as my consequential amendment proposes, each house of parliament has equal representation. The committees as proposed by the government are proposed to be entirely government dominated. We do not believe that is appropriate in terms of accountability. We certainly do not believe that it is appropriate in the context of a commission which should be independent.

We must be reminded that, under the joint standing orders, the presiding officer has both a deliberative and a casting vote, so government dominance would be unequivocal. This committee will inquire into the reports of government departments and government appointments. As it stands, the government is proposing that Caesar investigate Caesar.

I should stress that the Liberal Party does aspire to be in government sooner rather than later. We are proposing standards that we are prepared to stand by. So often the Premier claims to want better standards to be upheld in this place, yet the government's proposal in this bill falls short. Therefore, the Liberal opposition is proposing that the composition of the committee be changed to comprise three members from each house, and this balance will promote better oversight.

The Hon. G.E. GAGO: The government opposes this amendment. The amendment seeks to reduce the number of members of the committee to six rather than seven. [Wade-1] 17 states that the member removed by this amendment is a member of the House of Assembly. The government was inclined to support this amendment so long as the presiding member of the committee remained a member of the House of Assembly. This membership structure is consistent with the Environment, Resources and Development Committee. Given that the opposition has indicated its intention to persist with an amendment for the presiding member to be a member of the Legislative Council, the government therefore opposes the amendment.

The Hon. M. PARNELL: Whenever the prestigious Environment, Resources and Development Committee is invoked I struggle with the analogy, given that that committee has been in existence for some 17 years, from memory, and it has never once fulfilled its statutory ability to reject a decision made by the executive arm of government. So, it is almost enough said.

The Greens do support the reduction of members from seven to six; and, whilst it has not been moved yet, we also support the Legislative Council providing the chairperson. If we are looking for analogies, a committee that we have already talked about today, the Statutory Officers Committee, is exactly this structure. It is six people. It is three from each house and the Legislative Council chairs it. I think that it is good enough for that committee, and I think it is good enough for this important policy committee as well.

The Hon. A. BRESSINGTON: I indicate that I will also be supporting this amendment.

The Hon. R.L. BROKENSHIRE: We had an amendment regarding membership as well, which I will not move, because we will be supporting this amendment with a Legislative Council chair.

The Hon. J.A. DARLEY: I will be supporting this amendment.

Amendment carried.

The Hon. S.G. WADE: I move:

Clause 50, page 69, line 15 [Schedule 3, clause 50, inserted section 15Q(1)(a)]—Delete '4' and substitute: '3'

I suggest that this amendment is consequential on [Wade-1] 20, which was just passed.

Amendment carried.

The Hon. S.G. WADE: I move:

Clause 50, page 69, lines 27 and 28 [Schedule 3, clause 50, inserted section 15Q(3)]—Delete 'House of Assembly' and substitute: Legislative Council

This amendment would require the presiding officer of the committee to be elected from the appointed members of the Legislative Council. Again, this is about ensuring that the committee is one step removed from the government of the day and can provide effective oversight of the matters within its scope. It is not strictly consequential, but I believe that it is consistent with the decisions already taken by the council to ensure the independence of the committee from the executive.

The Hon. G.E. GAGO: The government opposes this amendment. We have already put our reasons on the record.

The Hon. A. BRESSINGTON: I am supporting the amendment.

The Hon. M. PARNELL: The Greens are supporting.

The Hon. R.L. BROKENSHIRE: I am supporting, sir.

The Hon. J.A. DARLEY: I am supporting this amendment.

Amendment carried.

The Hon. S.G. WADE: I move:

Clause 50, page 69, lines 32 and 33 [Schedule 3, clause 50, inserted section 15Q(3)]—Delete:

'House of Assembly' and substitute 'Legislative Council'

I understand the government regards this as consequential; so do we.

Amendment carried.

The Hon. S.G. WADE: I will not move [Wade-1] 25, but I will move [Wade-2] 1. Therefore, I move:

Clause 50, page 69, line 34 to page 70 line 29 [Schedule 3, clause 50, inserted Part 5F Division 2]—Delete Division 2 and substitute:

Division 2—Functions of Crime and Public Integrity Policy Committee

15R—Functions of Committee

(1) The functions of the Crime and Public Integrity Policy Committee are—

(a) to examine—

(i) each annual and other report laid before both Houses prepared by the Independent Commissioner Against Corruption, the Commissioner of Police, the Ombudsman or the Police Ombudsman; and

(ii) each report on a review under section 44 of the Independent Commissioner Against Corruption Act 2012; and

(iii) each report 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; and

(b) to inquire into and consider the operation of—

(i) the Serious and Organised Crime (Control) Act 2008; and

(ii) the Serious and Organised Crime (Unexplained Wealth) Act 2009; and

(iii) insofar as they are concerned with serious crime, criminal organisations or proceedings under an Act referred to in a preceding subparagraph, the Bail Act 1985, the Controlled Substances Act 1984, the Criminal Law (Sentencing) Act 1988, the Criminal Law Consolidation Act 1935, the Evidence Act 1929, the Juries Act 1927, the Summary Offences Act 1953 and the Summary Procedure Act 1921,

and, in particular—

(iv) how effective those Acts have been in disrupting and restricting the activities of organisations involved in serious crime and protecting members of the public from violence associated with such organisations; and

(v) whether the operation of those Acts has adversely affected persons not involved in serious crime to an unreasonable extent; and

(vi) whether the operation of those Acts has made an appreciable difference to the prevention or minimisation of the activities of organisations involved in serious crime; and

(vii) the effect of the amendments made by the Statutes Amendment (Serious and Organised Crime) Act 2012; and

(c) to inquire into and consider the operation of the Independent Commissioner Against Corruption Act 2012 and, in particular—

(i) the performance of functions and exercise of powers by the Independent Commissioner Against Corruption and the Office for Public Integrity; and

(ii) whether the operation of the Act has made an appreciable difference to the prevention or minimisation of corruption, misconduct or maladministration in public administration; and

(iii) whether the operation of the Act has adversely affected persons not involved in corruption, misconduct or maladministration in public administration to an unreasonable extent; and

(d) to inquire into and consider the performance of functions and exercise of powers by the Ombudsman under the Ombudsman Act 1972 or any other Act; and

(e) to report to both Houses on any matter of public policy arising out of an examination of a report or an inquiry (including any recommendation for change) as the Committee considers appropriate; and

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

(2) The Independent Commissioner Against Corruption must not disclose to the Crime and Public Integrity Policy Committee information that identifies, or could tend to identify, a person or body (whether incorporated or unincorporated) who is, or has been, the subject of a complaint, report, assessment, investigation or referral under the Independent Commissioner Against Corruption Act 2012 or has provided information or other evidence under that Act, unless the information disclosed to the Committee is already a matter of public knowledge.

(3) Nothing in this section authorises the Crime and Public Integrity Policy Committee—

(a) to investigate a matter relating to particular conduct; or

(b) to obtain information classified as criminal intelligence under an Act or information held by a body established for law enforcement purposes the release of which may, in the opinion of a person in charge of a current investigation, prejudice the investigation; or

(c) to reconsider a decision of the Independent Commissioner Against Corruption or any other person or body in relation to a particular matter.

I would appreciate the advice of government as to whether its understanding is the same as mine: I understand that the two sets of amendments are identical except for subsection (3)(b). If that is the shared understanding, I will speak to my amendment. By way of contrast, members may wish to have those two sections handy. The Liberal amendment would ensure that certain policy areas are not off limits to the committee's consideration simply because they have some relation to a matter currently subject to an investigation. The government amendment, in contrast, would prohibit the parliamentary committee from considering any matters that relate to a current investigation.

The key consideration should not be whether a matter is being investigated, but whether considering a particular matter could prejudice an investigation. The Liberal amendment makes this distinction. It would not take long for members of the Legislative Council to think of examples where this might be relevant—perhaps Burnside. The Liberal amendment leaves the decision about the release of information entirely in the hands of the investigator. It is not for some expansionist parliamentary committee chairperson. The investigator is the best-placed person to make such a decision. If it is their decision that provision of the information would prejudice an investigation, then they are under no obligation to provide it.

For example, the government amendment would stop any consideration of local government practices or codes of conduct if they are currently the subject of an investigation. A parallel inquiry by the committee might be entirely justified for other reasons, and indeed even the investigator may see the value in the committee's consideration, but his or her opinion would be irrelevant. The government's provision as drafted would actually forbid them from providing the relevant information to the committee.

I hope the committee sees the extent to which the opposition has worked constructively with the government to protect the legitimate interests of law enforcement agencies. We believe we have done that more than adequately in our amendment. After all, it is completely in the hands of the relevant investigator.

The Hon. G.E. GAGO: The government opposes this amendment. It would allow the investigating officer powers of discretion to release information. The government's position is that it should be the Commissioner of Police who provides that particular authority, and the opposition's amendment obviously does not include what we see as a safeguard.

The Hon. S.G. WADE: The government is opposing it as it stands, but if the commissioner was put in lieu of the investigating officer it would be acceptable to the government, in which case perhaps we could look to a recommittal to achieve that purpose. I certainly do not mind the commissioner having to sign off a local investigator's decision.

The Hon. G.E. GAGO: That has been helpful, and we would be happy to have it recommitted and have further discussions on proposed changes.

The Hon. M. PARNELL: I do not know whether the minister is in a position to answer this, but the question that the Hon. Stephen Wade first posed was whether the government agreed that the only difference between these two sets of amendments was that—

The Hon. G.E. GAGO: Yes.

The Hon. M. PARNELL: Yes; thank you. The Greens' position, notwithstanding that we might have a recommittal, is to prefer the Liberal amendment to the government amendment. The way the government amendment is worded is that any matter that is the subject of a current investigation can effectively be off-limits.

My concern around that clause is that—whilst not directly relevant to this, it is similar—I have a freedom of information application that has been knocked back on the basis that something is a current investigation. It relates to events that are years old, and they just keep the file open as a method of preventing access to the documents.

So, I think the Liberal amendment has the advantage of having that discretion in the hands of the person in charge of the investigation, as to whether information is released or not. Now, whether it is that person or whether it is the police commissioner, at least there is a level of judgement involved. I would hate to think that files could be kept open purely for the purpose of denying access to information.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 71, lines 15 to 17—Delete the clause.

I understand the government is favourably disposed, so I will not speak to it.

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried.

The CHAIR: The Hon. Mr Brokenshire, do you have an amendment to move?

The Hon. R.L. BROKENSHIRE: Sir, I formally move that I will now be withdrawing that amendment, but on the basis that I have an understanding that, in the first year or thereabouts of the commissioner and ICAC being in existence, the government will request that the commissioner investigates the code the government currently has with respect to lobbyists and the like, and that that will be transparently tabled and reported to the house. Therefore, based on my understanding, I will be withdrawing that amendment.

The Hon. S.G. WADE: Sorry, I have a question on that.

The CHAIR: What, the Hon. Mr Brokenshire withdrawing the amendment?

The Hon. S.G. WADE: No. The committee has been informed about a referral to the ICAC commissioner. Minister, on what basis can it be referred to the ICAC commissioner?

The Hon. G.E. GAGO: I have been advised that the commissioner can review legislative schemes, that the commissioner will be asked to review the Public Sector Act with particular focus on whether the code of conduct about lobbyists would improve that particular scheme.

The Hon. S.G. WADE: I actually doubt that that is an appropriate interpretation, because there is currently no legislative scheme in the Public Sector Act for lobbyists. Let us remember that this is not because the government suddenly heard a good suggestion from Family First and thought, 'Hey, let's put in a legislative scheme for lobbyists'; let us remember that the government committed to a code of conduct for lobbyists in legislation. The Attorney-General Mr Rau said it in The Advertiser on 29 December 2010, Premier Weatherill said it in a media release on 24 October 2011, and here we have an ICAC with not even a attempt to legislate for lobbyists.

My reading of 6(3) is that the Attorney-General may request the commissioner to review a legislative scheme related to public administration and make recommendations to the Attorney-General for the amendment or repeal of the scheme. It is not referring to a current act, which might potentially be the repository for a scheme. Let us remember that the current lobbyists' code of conduct and register is part of a DPC circular, No. 32.

I suggest that the government might enjoy doing quick deals with crossbenchers to facilitate passage of legislation, but I personally do not think this will achieve what is being suggested.

The CHAIR: There is only a response to a question. We do not have an amendment in front of us at the moment.

The Hon. R.L. BROKENSHIRE: We do not because I have withdrawn it on the understanding—and I am putting it clearly on the public record—that the ICAC commissioner will be reviewing this code of conduct and then tabling transparently the review to the parliament.

The Hon. S.G. WADE: I certainly understand the member's hope, but I do not think that the government can give a commitment to make the referral because I do not think that the legislation authorises it to do so. I am happy to do a recommittal; I am also happy for the member to choose to withdraw his amendments—

The Hon. G.E. Gago interjecting:

The Hon. S.G. WADE: Sorry; before the minister starts heckling, if the member is happy to withdraw on the basis of what I regard as a dubious offer from the government that is his call. I am not insisting on anything; I am not the one who tabled a whole set of amendments relating to lobbying.

The CHAIR: You are attacking the member. You're being attacked.

The Hon. R.L. BROKENSHIRE: I have put it on the public record; we will see what happens.

The Hon. G.E. GAGO: I move:

Part 21, page 73, lines 25 to 37—Delete the Part

After further consideration, the government has determined that the ICAC and OPI should not be exempt from the State Records Act 1997, and this amendment addresses that particular issue.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

Page 74, after line 19—After Schedule 3 clause 68 insert:

68A—Amendment of section 9—Victimisation

Section 9—after subsection (3) insert:

(3a) In proceedings against a person seeking a remedy in tort for an act of victimisation committed by an employee or agent of the person, it is a defence to prove that the person exercised all reasonable diligence to ensure that the employee or agent would not commit an act of victimisation.

(3b) A person who personally commits an act of victimisation under this Act is guilty of an offence.

Maximum penalty: $10,000.

(3c) Proceedings for an offence against subsection (3b) may only be commenced by a police officer or a person approved by either the Commissioner of Police or the Director of Public Prosecutions.

I believe that this is consequential to [Bressington-2] 4.

The Hon. G.E. GAGO: The government accepts it is consequential and, although we opposed the original amendment of the honourable member, we accept that we lost that.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

After line 19—After clause 68 insert:

68A—Insertion of section 13

After section 12 insert:

13—Review of operation of Act

(1) The Attorney-General must, as soon as practicable after the commencement of this section, conduct a review of the operation and effectiveness of this Act.

(2) The Attorney-General, or a person conducting the review on behalf of the Attorney-General, must consult the Independent Commissioner Against Corruption in relation to the review and have regard to any recommendations of the Commissioner for the amendment or repeal of this Act (unless the Commissioner is the person conducting the review).

(3) The Attorney-General must, within 12 months of the commencement of this section, prepare a report based on the review and must, within 12 sitting days after the report is prepared, cause copies of the report to be laid before each House of Parliament.

I apologise to members, because this particular amendment was drafted in the dinner break. I do not believe it is a groundbreaking amendment but it will hold the Attorney-General of the day to giving the commitment that there will be a review of the Whistleblowers Protection Act and that the report from the commissioner for amendment or repeal of this act will be laid before the parliament for discussion and debate. Rather than the hope, wish and dream that the Whistleblowers Protection Act will be amended at some stage, this actually puts a time line on it and, as I said, it commits under this act now to that being undertaken within 12 months and for the commencement of the section after this act has been assented to.

I have done this for two reasons. First, I was not sure that my whistleblower amendments would actually get up, so this was like a fail-safe for that; but also because I recall that when we were debating the Public Sector Act in 2008 the then minister gave a commitment. I moved a number of amendments to the Public Sector Act which included whistleblower protection and it was basically said back then in 2008 that it was inappropriate to have those amendments included in the Public Sector Act. I was given an undertaking by the then minister that a full review of the Whistleblowers Protection Act would be undertaken. That was 2008 and it still has not happened.

The Hon. M. Parnell interjecting:

The Hon. A. BRESSINGTON: Yes. We have had a similar promise made in relation to this ICAC bill and I am not quite as naive as I was in 2008 so I am having it inserted into the legislation; and I hope that members can see the value in supporting this and holding the government to commit and undertake a promise that it has made—for a very deficient bill, I might add.

The Hon. G.E. GAGO: The government rises to oppose this particular amendment but we accept that it is going to be recommitted and there will be further discussion, so my comments are premised around that. The government does accept the intent of this clause, but it is obviously concerned about the timing. The intention was to ask the commissioner to conduct this review within 12 months of their appointment.

The commissioner is the most appropriate person to conduct this review. Given that the appointment of the commissioner is, according to recent amendments, in the hands of the Statutory Officers Committee, if there were some delay in that appointment, it could significantly reduce the time the commissioner would have to conduct a thorough review of the legislation. The government is happy to discuss these time lines further with members. We accept that this clause will be recommitted and further discussions will ensue.

The Hon. S.G. WADE: I appreciate the minister's comments, but the opposition is doubly committed to the Hon. Ann Bressington's wording. Let us not presume that the ICAC commissioner will not have a busy first 12 months anyway. We have been careful in the way that we have drafted our amendments not to direct the commissioner in terms of priorities before it.

Whilst I completely agree with the Hon. Ann Bressington that a review of the Whistleblowers Protection Act is a priority, it may well be that the ICAC commissioner is so busy that the government will need to find somebody else to do the review. I think the Hon. Ann Bressington's amendment is wise in allowing for a person, who may or may not be the ICAC commissioner; that is a matter for the government to speak to the ICAC commissioner about and in the context of other available reviewers.

In terms of the government's time frame, the Hon. Ann Bressington in this parliament has been waiting four years for the government to honour this commitment. I do not think we need any more excuses to push it out even further.

The Hon. M. PARNELL: The Greens will be supporting this amendment. It is hard to think of any two pieces of legislation that do not fit better together than the ICAC Bill and the whistleblowers protection legislation because I would imagine that the vast majority of corruption will not come to light without someone courageous being able to draw attention to it, so I think the link with the Whistleblowers Protection Act is very clear.

The Hon. Ann Bressington says that she was told four years ago that tacking a review of the Whistleblowers Protection Act onto another piece of legislation that related to public servants was inappropriate. I think that she was dudded then, and I think she is keen not to be dudded this time, so I think these two bits of legislation do go hand in glove.

In terms of whether or not the amendments that have already passed this chamber will somehow eat into the 12-month time period for this review, I do not accept that because the way the honourable member has drafted this amendment obliges the Attorney-General, as soon as practicable after the commencement of this section, to conduct the review, and it may well be that the government could postpone the commencement of this particular section. I do not believe that there is a real practical difficulty with the period of time being less than 12 months. I think it is a sensible amendment, and I look forward to its passage.

The Hon. R.L. BROKENSHIRE: I foreshadowed this after the Hon. Ann Bressington had advised me before the dinner break that she had something being drafted, so we support this because we want to see the Whistleblowers Protection Act reviewed. In fairness to this current Attorney-General who I talked to about this, he indicated in principle that he understood and did not have an issue with this.

I do not take people at face value lightly. Clearly, four years ago there was a promise made and it was not delivered, but I would expect better from this Attorney-General because I have actually had an indication from him that he does intend to have the Whistleblowers Protection Act reviewed within the 12-month period or thereabouts.

Amendment carried; schedule as amended passed.

Long title.

The Hon. G.E. GAGO: I move:

After 'the Child Sex Offenders Registration Act 2006,' insert 'the City of Adelaide Act 1998,'

Delete 'the State Records Act 1997,'

The Hon. S.G. WADE: We support both amendments.

Amendments carried; long title as amended passed.

Bill reported with amendment.

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