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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-28 Daily Xml
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INDEPENDENT COMMISSIONER AGAINST CORRUPTION BILL

Final Stages

Consideration in committee of the House of Assembly's message.

(Continued from 27 November 2012.)

Amendment No. 6:

The CHAIR: Last night, on this matter we were almost there, and all four amendments have been moved.

The Hon. S.G. WADE: Mr Chair, I was wondering if you could just remind us which amendments have been moved.

The CHAIR: The Hon. Mr Brokenshire's, the Hon. Ms Vincent's, the Hon. Mr Parnell's and the minister's.

The Hon. S.G. WADE: I wonder if it might facilitate matters if the opposition gave an update on the discussions that have ensued since the committee last met.

The CHAIR: The Hon. Mr Wade, you have the call.

The Hon. S.G. WADE: Thank you. The opposition has had discussions with a number of MLCs and representatives of the government, and we are now of the view that the best way forward is to not insist on the Bressington amendment. We welcome the backdown by the government to allow the parliamentary confirmation of the appointment of the independent commissioner and the other amendments. We particularly welcomed the second set of amendments yesterday that responded to our concerns to entrench that independence so that we do not need just to rely on the commitments of the current government.

I will just briefly sketch why we have come to this position. In terms of the process of establishing the ICAC in South Australia, this council has played an integral part. It was in this council 24 years ago that the first ICAC bill was moved. Five years ago, the Liberal Party endorsed an independent ICAC for South Australia, and the government committed to it a year ago.

We do not like the model. We think that it is ICAC-lite: we think that it is too narrowly focused in terms of the criminal threshold, we think that it is too secretive and that it has a blanket ban on public hearings, and we think that it is under-resourced considering the government itself said an ICAC would need $30 million and it now has six.

The key issue that particularly possessed the council was the issue of independence. Obviously, independence matters for an ICAC: it is the first word in its name. The government proposed a cabinet-only appointment process which would not protect independence. The Hon. Ann Bressington captured the mood of the Liberal Party in terms of its desire to protect independence when she moved an amendment which sought to protect independence. Her model was for a parliamentary resolution of both houses, and we supported that, particularly in the context of the higher level of Independents who are now in the parliament.

The Hon. John Darley first suggested the involvement of a parliamentary committee rather than the chamber as a whole, and that was later echoed by Family First amendments. The opposition was not confident that that would provide a sufficient guarantee of independence, so we particularly welcomed the amendment of the Hon. Kelly Vincent because it was the first time that a committee process would also be not government controlled.

We welcomed the informal negotiations the Hon. Kelly Vincent convened last week, and I must put on record that I think that one of the principles Kelly Vincent espoused was a very important one. The Hon. Kelly Vincent took the view that it was important for both alternative governments to be comfortable with the final model because both major parties need to have confidence in the ICAC going forward.

To the credit of Kelly Vincent and all stakeholders, including the government, we are in a situation today where the ICAC going forward should have the confidence of both alternative governments, so we as a Liberal Party are happy to submit to the oversight of the ICAC and, clearly, the government is too. In particular, I would like to acknowledge the commitment of the Hon. Kelly Vincent, the Hon. Ann Bressington, the Greens and my fellow Liberal colleagues, who have made sure that this Legislative Council has yet again stood up for South Australians to make sure that they get what they want, which is an independent commission against corruption.

I also welcome the government's acceptance of the other amendments that this council was insisting on, such as the independence of the parliamentary committee of oversight, the victimisation provision, and the provision in relation to parliamentary privilege.

The Hon. M. PARNELL: The Greens will be supporting the Independent Commissioner Against Corruption Bill; however, we do believe that the Legislative Council should insist on the amendment we passed last time, which was for the whole of the parliament, all 69 members, to have the ability to scrutinise the final appointment. I appreciate that the government has given some ground, that the opposition has given some ground, and that the Greens as well, through the amendment I have tabled, have given some ground, but at the end of the day, if we want this person to have the confidence of the community, there is no better test than them having the confidence of the parliament.

I can see where the numbers lie in relation to this amendment, and certainly having a group of six parliamentarians scrutinising the final appointment is better than simply the executive deciding who should fill this most important role, but I want to put on the record that the Greens will be insisting on the original amendment put forward by the Hon. Ann Bressington. I think she captured the mood of the council back then and, as far as the Greens are concerned, captures it still. The 'I' in ICAC stands for independent; the parliament should have the final say.

We know from experience that it is not a job interview. It has not been a witch hunt. The appointment of similar officers, such as the Ombudsman and the Electoral Commissioner, have gone through smoothly and without objection. We believe that the commissioner should go through that process as well.

The Hon. R.L. BROKENSHIRE: Mr Chairman, I seek your guidance: I believe I still need to move my amendment now.

The CHAIR: No, you moved it last night.

The Hon. R.L. BROKENSHIRE: I will be very brief. Clearly this has been a very robust debate, and so it should have been, because this is an incredibly important bill for the state's future. It illustrates the importance of the Legislative Council because, as has been said by other colleagues, this bill has come a long way and it is in a lot better shape than it was originally. Politics is about the art of what you can achieve, the possible, and compromise. That is what democracy is about in this state, and I believe that all members have contributed strongly to this. From what I am hearing in the chamber, I think this is a fair, reasonable and good result for South Australians. I look forward to a very independent and proactive ICAC.

The Hon. A. BRESSINGTON: I would like to make a couple of comments. As I said last night, I was under no illusion that my amendment would go through as it was, that there was an opportunity for everyone to participate in the negotiation of that for the best outcome and the true welfare of the people of this state, I remind members in here. I do not believe that we have moved too far forward on the resolution that the Liberal Party has landed on.

I would like to go back to the very first amendment moved after mine, which was that of the Hon. John Darley, to include the Statutory Officers Committee. The reason we were opposed to that was that it was believed that that was a government-dominated committee.

I have gone back over the Hansard of the lower house contributions to the ICAC Bill. I believe this is the most important bill that we will pass in this place for a very long time, and I was curious to note that two of the Independents in the lower house made no contribution on this bill at all. I know that is people's prerogative, whether or not they have input into legislation by making speeches in the house, but I would have thought that on such an important bill they would want at least something on the record. They could have advised whether they had concerns or whether they fully supported the model, but there was nothing from two of them. The other Independent in the lower house who may be considered for this committee has made his case very clear, and that was that he believed that the government should be the one to appoint the commissioner.

I still have concerns about how really far we have moved. It looks like we have moved, it looks like we have made progress but, in my mind, at the end of the day, we have landed back exactly where we were. I must say that the Hon. Mr Darley, in a meeting we had of all the crossbenchers, stated his case quite clearly in that meeting, that he saw no need to amend the government bill, which means that he also, at that meeting, made it clear that he supported the executive of government being responsible for the appointment of a commissioner.

In actual fact, we now have two Liberal, two Labor and two Independent members and an Independent in the chair of this committee, but I do not believe that the dynamics have changed at all. I am disappointed that we have come to this spot.

I heard the Hon. Robert Brokenshire on FIVEaa last night talking to Bob Francis saying, 'Let's just move on from this now and worry about legislation that gives people jobs and allows them to earn a living and move the state forward.' Well, in actual fact, we have people out there with great expectations for this ICAC—that people who have been treated unjustly are now at least going to have an avenue to lay their complaints and to be heard. I want it on the record now that this ICAC is not going to deliver that; I do not believe that it will.

I think that this is a great loss today in that we have passed a second-rate bill and settled for second best. I put it on the record, as I did with the harbouring bill and other bills in this place, where I have had to come back and say that, in my second reading speech, I had raised these concerns and I was assured that none of my concerns would ever come to fruition. I was nothing more than a conspiracy theorist. But, on a number of occasions, I have come back in this place and my fears have been realised.

So, I am putting this on the record today: we have a second-rate ICAC. This parliament, I believe, should respect the will of the public. This has been media driven. It is no wonder the Attorney-General wanted this to go to a deadlock conference because, once we are in a deadlock conference, the media cannot be manipulated. We cannot make comment about what is discussed in a deadlock conference, so there would have been no media bites for anybody, and I believe that that is what drove us away from the parliamentary process of using a deadlock conference. This has been tried in the media, and the media have been led to believe that we now have a workable ICAC. I am on the record as saying that none of that is true.

The Hon. K.L. VINCENT: I indicate that, of course, my first preference would have been the model proposed under the Hon. Ms Bressington's amendment, and I have made that quite clear. I have also made it quite clear that the very reason I convened the meetings held with crossbenchers and the Attorney-General over the last week was in the spirit of compromise and looking for that compromise.

I believe that the right kind of model to begin with would have been one that gave the entire parliament scrutiny over this appointment. Failing that, I believe that something like the committee proposed under my own amendment would be the closest thing to an acceptable compromise, in my mind. So, even though I accept that those models will not be passing today—in fact, given that those models will not be passing today—I find myself morally obligated to stick to both Ms Bressington's and my own amendments to signal to the South Australian community that the independence of the commissioner remains important to me and my party.

The Hon. J.A. DARLEY: I must say that I take objection to the comments made by the Hon. Ann Bressington and, if she read my comments yesterday where I clarified my position, what I said—

The Hon. A. Bressington interjecting:

The Hon. G.E. Gago: Absolutely outrageous!

The Hon. A. Bressington: You weren't at the meeting, Gail, so butt out.

The Hon. J.A. DARLEY: And neither were you.

The CHAIR: Order!

Members interjecting:

The CHAIR: Order! We have gone through this time and again and people have been heard in silence, especially the Hon. Ms Bressington, so the Hon. Mr Darley has the right to be heard in silence.

The Hon. J.A. DARLEY: What I said at the meeting—

The Hon. D.W. Ridgway interjecting:

The CHAIR: Order!

The Hon. J.A. DARLEY: —in so far as the government's bill was concerned was that that was a starting point, and that was the reason I prepared the amendment that suggested a veto approach to it.

The Hon. G.E. GAGO: There was lengthy debate yesterday evening and the points of view of the government are on record; and there were detailed comments made then and I am not about to repeat those. However, I do just want to make a couple of final comments. Firstly, I want to put on the record how offensive and outrageous the Hon. Ann Bressington's comments were in relation to the Hon. John Darley. To suggest that somehow the Hon. John Darley is not independent is just outright offensive. It is absolutely offensive—outrageous comment; absolutely outrageous comment. What is she suggesting? Is she suggesting that the only people who are going to be independent—

Members interjecting:

The CHAIR: Order!

The Hon. G.E. GAGO: —are those who share her point of view?

Members interjecting:

The CHAIR: Order!

The Hon. G.E. GAGO: That is what she is suggesting: the only people who are going to be independent—

The Hon. J.S.L. Dawkins interjecting:

The CHAIR: The Hon. Mr Dawkins, stop winding them up.

The Hon. G.E. GAGO: —are those who share the Hon. Ann Bressington's point of view. How outrageous, how absolutely, obscenely outrageous! I also just want to put on the record that the government is obviously very pleased and relieved that a solution has been found. We are delighted that the opposition has finally seen sense and supported the government's position.

The government, particularly the Attorney-General (the Hon. John Rau), has worked extremely hard with the opposition and all the minor parties and Independents. He has worked extremely hard, and his staff (his adviser, in particular), to identify people's particular concerns and to find a way through that. He has sat through hours and hours of deadlock conferences that yielded very little.

I am not particularly referring to this bill: I am talking about all of the other deadlock conferences that he sat in where almost nothing has been achieved. Day in, day out, we come in here having to pass resolutions to enable us to attend deadlock conferences that yield almost nothing. What the Attorney-General has done is that he has gone around and spoken to the opposition, the Independents and the minor parties. He has worked to identify issues, he has worked a pathway through this and he has finally landed that.

What was important here—and I said this last night and it is important to say it one more time—is that there are a wide range of different points of view on this in terms of the opposition and also amongst the minor parties and the Independents, and taking that to a deadlock conference that excluded some of those parties the Attorney-General believed was not the prudent way to go forward. It is time for an ICAC. This government is committed to delivering one, and we are delighted that the opposition and at least some of the Independents and minor parties are prepared to support this very important bill.

The committee divided on the motion:

AYES (17)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Finnigan, B.V. Gago, G.E. (teller) Hood, D.G.E.
Hunter, I.K. Kandelaars, G.A. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Maher, K.J.
Ridgway, D.W. Stephens, T.J. Wade, S.G.
Wortley, R.P. Zollo, C.
NOES (4)
Bressington, A. (teller) Franks, T.A. Parnell, M.
Vincent, K.L.

Majority of 13 for the ayes.

Motion thus carried.

The Hon. G.E. Gago interjecting:

The CHAIR: Minister, order! So that we can keep on—

Members interjecting:

The CHAIR: Order! We are now moving on to—

An honourable member interjecting:

The CHAIR: Are you going deaf?

An honourable member interjecting:

The CHAIR: Well, help yourself outside. We now move on to the alternative amendment moved by the Hon. Mr Brokenshire.

Amendment carried.

Amendment No. 24:

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

That the Legislative Council insist on its amendment No. 24.

The Hon. S.G. WADE: Point of clarification: I thought the government was going to move their amendment as well?

The Hon. G.E. GAGO: Later.

Motion carried.

Amendments Nos. 39 and 40:

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

That the Legislative Council insist on its amendments Nos. 39 and 40.

Motion carried.

Amendments Nos. 42 and 43:

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

That the Legislative Council insist on its amendments Nos. 42 and 43.

Motion carried.

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

That the Legislative Council makes the following consequential amendment:

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

49AA—Amendment of section 15H—Membership of Committee

Section 15H(1)—delete subsection (1) and substitute:

(1) The Committee consists of 6 members of whom—

(a) 3 must be members of the House of Assembly appointed by the House of Assembly, of whom—

(i) at least 1 must be appointed from the group led by the Leader of the Opposition; and

(ii) at least 1 must be appointed from the group led by the Leader of the Government; and

(iii) at least 1 must be a member who does not belong to the group led by the Leader of the Opposition or the group led by the Leader of the Government (unless there is no such member or no such member consents to appointment to the Committee); and

(b) 3 must be members of the Legislative Council appointed by the Legislative Council, of whom—

(i) at least 1 must be appointed from the group led by the Leader of the Opposition; and

(ii) at least 1 must be appointed from the group led by the Leader of the Government; and

(iii) at least 1 must be a member who does not belong to the group led by the Leader of the Opposition or the group led by the Leader of the Government (unless there is no such member or no such member consents to appointment to the Committee).

The government supported the Hon. Robert Brokenshire's amendment to provide the Statutory Officers Committee a right of veto over the proposed appointee. This consequential amendment to the Parliamentary Committees Act will ensure a place for an Independent from both houses to be appointed to that committee.

The act will prescribe that an Independent from both houses must be a member of that committee, and that those members cannot, at the whim of the majority of a house of parliament, simply be removed. So, it will be enshrined in legislation and given that legislative undertaking. I understand that the opposition is also prepared to support this amendment.

The Hon. S.G. WADE: I simply confirm the minister's comments that the opposition will support this amendment. I think it is also a historic day in the sense that, as the Parliamentary Committees Act and Statutory Officers Committee have been updated for what has been a reality in this chamber for 30 years; that is, the growing presence of the Independents. I think we now have the largest group of Independents that this chamber has ever had, at about a third of the house. That makes it the house with the largest number of Independents of any mainland state. I support the government's amendment, which recognises that, in an important parliamentary committee.

The Hon. M. PARNELL: Whilst the Greens' clear preference, as shown in the last division, was for all 69 members of parliament to have a say, we can see that that is now off the table, so we are now looking at the composition of the committee. The committee that is before us in this consequential amendment does have slightly more balance than previously, but I still make the point that it is only six members out of 69.

I will just make a further observation that if the government has now seen fit to reform this particular committee to properly reflect the composition of the parliament, then we say: bring on another amending bill, and let us go through all the rest of the committees of parliament, and let us have them all reflect the diversity of views in the parliament, including the one-third of members of this chamber who do not belong to either the government or the opposition.

I think the precedent has been set today. The government is on the record as saying it does not want parliamentary committees to be stacked. They do not want them to be dominated by the government of the day. Bring on an amending bill and we will be right behind you. Let us have our parliamentary committees more fully reflect the diversity of views in this place.

The Hon. R.L. BROKENSHIRE: Family First just puts on the public record that we concur with what the government and the opposition have said. In fact, the shadow attorney-general said what I was basically going to say. It is an important amendment. It was paramount to the final solution to this, and we are very pleased to be able to support this amendment to complete the bill.

The Hon. K.L. VINCENT: Just to quickly reiterate that I find myself morally obligated to oppose this amendment and stick by the model proposed by Ms Bressington and myself. Absolutely no-one has contacted my office saying that having an Executive Council appointment is a good idea. Absolutely no-one has told me that they are not comfortable with the independent representation and so I find myself obligated to stick by the position of having as moderate representation as possible and that would have been achieved with these amendments.

The Hon. J.A. DARLEY: Obviously, I will be supporting the amendment.

Motion carried.

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