Independent Commissioner Against Corruption (Miscellaneous) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:15): I move:

That this bill be now read a second time.

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

Leave granted.

This Bill amends the Independent Commissioner Against Corruption Act 2012. The amendments are made in response to specific requests from the Commissioner to clarify some provisions and to facilitate some operational aspects of the legislation. This Bill should not be seen as an opportunity to re-agitate the introduction of the 'reality TV' model of ICAC operating in New South Wales. The Government would rather lose this Bill than permit such an outcome. The Commissioner has urged the passage of this Bill, in its current construction, as a matter of urgency.

The Commissioner has had the benefit of 12 months of operational experience with this legislation so it is timely and appropriate to make amendments that will refine and improve some areas of the Act.

Most importantly, the Bill will clarify the confidentiality provisions of the Act. It is fundamental to the operation of the Act that information provided to the Commissioner and the Office for Public Integrity is dealt with on a strictly confidential basis. However, the confidentiality requirements of the Act have made administration of the Act difficult for the Commissioner and the OPI and has caused some confusion for inquiry agencies, public authorities and public officers. Two areas of the Act will be amended to address this. First, the Bill amends the definition of 'publish' because upon a broad interpretation of that definition, information could not be communicated person to person. The intention, which is to prevent information becoming public, will be clarified by the new definition of 'publish', consistent with the definition of 'publish' in the Evidence Act 1929 where the emphasis is on communication to the public. The second amendment to clarify the confidentiality provisions will simplify sections 54(1) and (2) to remove any doubt about when information can be disclosed without the Commissioner's authorisation.

The Bill will also amend a number of other provisions to put the intent beyond doubt. These include inserting a new subsection into section 14 of the Act to clarify that police officers, whilst seconded to assist the Commissioner, retain their full police powers and new definitions of 'private place' and 'private vehicle' to make clear what was intended as to who has the authority to issue such warrants. The Bill will also amend section 36 to make it clear that the Commissioner may disclose to the relevant law enforcement agency or public authority information that the Commissioner has in respect of a matter. The amendment will also enable the Commissioner to issue directions and guidance to a public authority on a referral under section 36.

The Bill will amend the Act in a number of ways to facilitate the operation of the scheme, including:

allowing the Commissioner, by written notice, to authorise an investigator to inspect and take copies of financial records which is similar to the power under section 49 in the Evidence Act 1929;

providing for the Commissioner to delegate a function or a power under section 31 to an examiner;

amending section 25 to include a further matter that the Commissioner is to have regard to when considering whether it is in the public interest to make a public statement. Section 25 of the Act allows the Commissioner to make a public statement in connection with a particular matter if, in the Commissioner's opinion, it is appropriate to do so in the public interest. The amendment will add to those matters: whether a person has requested that the Commissioner make the statement;

allowing for the Commissioner or the Office for Public Integrity to request further information from an inquiry agency, public authority or public officer for the purposes of making an assessment;

allowing for the person heading an investigation to require, by written notice, an inquiry agency, public authority or public officer to produce a written statement of information about a specified matter, or to answer specified questions. Section 28 currently does not allow for the investigator to require information from an inquiry agency or by way of answer to specified questions;

expressly providing for evidence or information obtained by the Commissioner to be provided to and used by law enforcement agencies and prosecution authorities for the purposes of criminal investigation or proceedings and by public authorities for the purposes of disciplinary investigation or action. This amendment will put beyond doubt the use that can be made of information obtained through an examination or the exercise of other coercive powers;

extending the period that a retention order applies from six months to a period of two years. The current limitation is insufficient given the extent of some investigations and time that material may need to be retained before proceedings are instituted for an offence relating to the material retained;

removing the application of the designated period from items seized and retained by an investigator for the purposes of an investigation in corruption in public administration;

providing for an investigator to return to a place where there is a retention order in place over a thing and to seize and retain that thing under the authority of the original warrant; and

allowing, by agreement with the Police Commissioner, for persons performing functions under the ICAC Act to have access to confidential information and databases held by SAPOL for the purposes of assessments and investigations.

The Bill will also amend the Criminal Investigation (Cover Operations) Act 2009 to allow for an ICAC investigator to apply to the Commissioner to approve undercover operations for the purpose of an investigation under the ICAC Act and will amend the Crown Proceedings Act 1992 to remove the requirement for an examiner to give notice to the Crown Solicitor before issuing a summons to a Minister of the Crown to appear at an examination. Under the Crown Proceedings Act no subpoena or other process may be issued requiring a Minister of the Crown to appear, in the Minister's official capacity, to give evidence, or to produce documents, without the permission of the court, tribunal or other authority and permission may be granted only after the Crown Solicitor has been given reasonable notice in writing of the application for the subpoena or other process and a reasonable opportunity to be heard on the application. Clearly this process does not transfer comfortably into the examination process, where the summons for an examination is issued only for the purposes of an investigation into corruption in public administration where there are no parties, and the examination is conducted in private.

Finally, the Bill will amend Schedules 1 and 2 of the Act. The reference to employees under the Technical and Further Education Act 1975 will be removed from Schedule 1 because, as a result of the enactment of the TAFE Act SA 2012, which came into operation after the commencement of the relevant sections of the ICAC Act, these officers are now covered 'in the Schedule by reference to' an officer or employee of a statutory authority or statutory office holder and clause 3(9) of Schedule 2 will be amended to clarify the nature of the confidentiality orders that can be made by an examiner in relation to evidence or information given or received during an examination.

The Commissioner's well considered comments and suggestions have resulted in a set of amendments that will fine tune what has already proved to be a very successful legislative scheme.

I commend the bill to members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Independent Commissioner Against Corruption Act 2012

4—Amendment of section 4—Interpretation

Section 4 is amended to substitute a clearer definition of 'publish' and to define the term 'seconded' for the purposes of those provisions dealing with seconded police.

5—Amendment of section 7—Functions

This clause makes a minor drafting amendment to section 7 to make the wording consistent with that used elsewhere in the Act.

6—Amendment of section 14—Examiners and investigators

This amendment provides that a seconded police officer or special constable continues to exercise his or her powers under the Police Act 1998 (and other laws) unless agreed between the ICAC and the Commissioner of Police.

7—Amendment of section 16—Delegation

This amendment allows delegation of the ICAC's powers under section 31 to an examiner.

8—Amendment of section 23—Assessment

This clause amends section 23 to allow the Office for Public Integrity or the ICAC to require, in assessing a matter, an inquiry agency, public authority or public officer to produce a written statement of information about a specified matter or to answer specified questions. Failure to comply is an offence punishable by a maximum fine of $10,000 or 2 years imprisonment.

9—Amendment of section 24—Action that may be taken

This clause is consequential to clause 18.

10—Amendment of section 25—Public statements

This clause amends section 25 to specify that the ICAC will, in determining whether it is in the public interest to make a public statement, have regard to whether any person has requested that the ICAC make the statement (in addition to having regard to the current matters specified in section 25).

11—Substitution of heading to Part 4 Division 2 Subdivision 2

This amendment is consequential to clause 17 and ensures that the 2 headings match in style.

12—Amendment of section 28—Production of statement of information

This clause slightly broadens section 28 so that the person heading an investigation into corruption in public administration may require an inquiry agency, public authority or public officer to produce a written statement of information about a specified matter or to answer specified questions.

13—Insertion of section 29A

This clause inserts a new section allowing the ICAC to authorise an investigator to inspect and take copies of financial records for the purposes of an investigation into corruption in public administration.

14—Amendment of section 31—Enter and search powers under warrant

These amendments clarify the definitions of 'private place' and 'private vehicle' in section 31.

15—Amendment of section 32—Seizure and retention order procedures

This clause amends section 32 to alter the provisions relating to seizure and retention orders, in particular to allow for subsequent seizure of an item that is subject to a retention order, to remove the references to the designated period from the provisions relating to seizure and to extend the minimum designated period for the purposes of the provisions relating to retention orders from 6 months to 2 years.

16—Amendment of section 36—Prosecutions and disciplinary action

This clause amends section 36 to clarify certain issues relating to referral of a matter to the relevant law enforcement agency for potential prosecution, or to a public authority for potential disciplinary action, during or after a corruption investigation and to allow the Commissioner to give a public authority directions and guidance in such a case (similar to the power to give directions and guidance on a referral under section 38).

17—Substitution of heading to Part 4 Division 2 Subdivision 3

This heading is changed to reflect the fact that under other amendments the Commissioner will be able to exercise the powers of an inquiry agency in relation to a matter without referring the matter.

18—Insertion of section 36A

This clause inserts a new section as follows:

36A—Exercise of powers of inquiry agency

The provisions relating to the Commissioner's ability to exercise the powers of an inquiry agency are removed from section 37 (which deals with referrals) and placed in a separate section so that the Commissioner will be able to exercise such powers without referring the matter.

19—Amendment of section 37—Referral to inquiry agency

This clause clarifies the application of section 37 and makes some amendments that are consequential to clause 18.

20—Amendment of section 38—Referral to public authority

This clause clarifies the application of section 38.

21—Amendment of section 43—Referral of matter etc does not limit performance of functions

This clause clarifies the wording of section 43.

22—Amendment of section 45—Commissioner's annual report

This amendment is consequential to clause 18.

23—Amendment of section 50—No obligation on persons to maintain secrecy

This clause makes a minor clarifying amendment to section 50.

24—Amendment of section 51—Arrangements for provision of information by Commissioner of Police and Police Ombudsman

This clause slightly broadens the provision relating to making arrangements, so that the arrangements can relate to any persons performing functions under the Act and are not limited to the Commissioner, the Deputy Commissioner, examiners and investigators.

25—Amendment of section 54—Confidentiality

This clause simplifies and clarifies the confidentiality provision.

26—Insertion of section 56A

This clause inserts a new section as follows:

56A—Use of evidence or information obtained under Act

This section will make it clear that evidence or information obtained lawfully under this Act may be used for law enforcement and disciplinary purposes.

27—Amendment of Schedule 1—Public officers, public authorities and responsible Ministers

This clause deletes an obsolete provision from Schedule 1.

28—Amendment of Schedule 2—Examination and production of documents and other things

This clause is consequential to the new definition of publish.

Schedule 1—Related amendments and transitional provision

Part 1—Related amendments to Criminal Investigation (Covert Operations) Act 2009

1—Amendment of section 4—Approval of undercover operations

This amendment would allow an investigator to apply to the ICAC to approve undercover operations for the purpose of an investigation into corruption in public administration under that Act where the suspected corruption involves, or may involve, serious criminal behaviour

Part 2—Related amendments to Crown Proceedings Act 1992

2—Amendment of section 14—Permission to issue certain subpoenas etc

This clause makes a minor clarifying amendment to section 14.

Part 3—Transitional provision

3—Application of section 15

This is a transitional provision dealing with the amendments in clause 15.

Debated adjourned on motion of Hon. J.S.L. Dawkins.

At 16:16 the council adjourned until Wednesday 19 November 2014 at 14:15.