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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-09-08 Daily Xml
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Bills

Judicial Conduct Commissioner Bill

Committee Stage

Debate resumed.

The Hon. R.L. BROKENSHIRE: I just want to make a couple of points regarding this on the record but, given what the new and potentially talented minister had to say, I would suggest that the minister needs to remember that he actually is now a minister. He does not have to impress his colleagues anymore, therefore he should stick to his responsibilities as a minister rather than go on in a flamboyant and misdirected way to simply try to point score. He is already a minister, so he should forget that and get on and deliver as a minister.

I also reflect on the learned people in this chamber: parliamentary counsel, the Clerk and the Deputy Clerk. All government members need to understand that they do not own the parliament. When you have a government in power for as long as this mob has been in power, one of the problems is that they think they own the parliament. Well, they do not own the parliament, and the South Australian community does not want this dictatorial government to own the parliament.

So, I have a little message to the minister and his government: when you bring legislation into this chamber, if it is legally possible, as has been supported by those learned people whom I respect, as I just highlighted, the government has to understand that once you open up a bill it allows for other opportunities, and that is simply what has happened here.

The reality is that, irrespective of who has been in government, ministers have traditionally been appointed to particular committees. I will highlight one, and that is the Aboriginal standing committee, where one minister—not in a Labor government but in a Liberal government—deliberately made sure they were not in a position to convene that committee because it did not suit them. That is one example on the other side.

We now have a situation where we have areas like ICAC that need to be totally kosher and, I believe, removed as far as possible from any direction or input from government directly. I am on the public record as saying that. I think when ICAC requests amendments to legislation, etc., that should in the first instance come through the standing committee very ably chaired by the Hon. Gerry Kandelaars and then referred through to the relevant minister.

Things are changing, it is a modern world, and we are moving forward, hopefully. I believe that once you become a minister of the Crown you should not necessarily have total control and input into positions that are very important from the viewpoint of being kosher and should have a strong contribution from the parliament itself, rather than just the parliament becoming a rubber stamp for whatever the minister may want.

We are listening closely to this debate and, based on other contributions at this point in time, we will be favourably supporting the proposal because it is time that ministers were not necessarily controlling everything that happens in the parliament, albeit that they may want to. At this point in time, unless we can be convinced otherwise, we are leaning towards supporting the amendment as is being debated here today and previously.

The Hon. K.L. VINCENT: To assist the committee, I indicate very briefly that Dignity for Disability will support the government's amendments, as we understand that they are merely technical in nature, and indicate that at this point we will not support the Hon. Mr Wade's amendments. Personally, I am somewhat sympathetic to his objective, and I think the objectivity of committees is something to be considered very seriously. However, I believe that this discussion would be best to take place in a more overarching context than on a case-by-case basis, as evidenced with this amendment to the bill.

The Hon. M.C. PARNELL: The Greens will support the opposition amendment. As we understand it, whilst it may be described as opportunistic, it is a rare person in this place who has not taken opportunities as they have arisen to deal with an issue that is directly relevant. The composition of the Statutory Officers Committee is a relevant consideration in this bill.

The Greens have long taken the position that the separation of powers between the legislature and the executive in particular leads us towards not having ministers on parliamentary committees, and so we are inclined to support the Liberal amendment. In relation to the government's amendments, circulated by the Attorney-General, we are also inclined to support those.

Amendment carried; schedule as amended passed.

Long title.

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

Amendment No 2 [Wade–1]—

Long title—Delete 'and the Ombudsman Act 1972' and substitute:

, the Ombudsman Act 1972 and the Parliamentary Committees Act 1991

Amendment carried; long title as amended passed.

Bill recommitted.

Clause 7.

The Hon. K.J. MAHER: I move:

Amendment No 1 [ManInnTrade–1]—

Page 7, line 14 [clause 7(7)]—Delete 'The' and substitute 'Subject to subsection (7a), the'

This amendment and the ones that follow expressly contemplate the concurrent appointment of the Independent Commissioner Against Corruption as the judicial conduct commissioner and ensure that there are no ambiguities or conflicts between this bill and the Independent Commissioner Against Corruption Act 2012.

This specific amendment should be read in conjunction with amendment No. 2. Taken together the two amendments provide that nothing prevents the Independent Commissioner Against Corruption being appointed as the judicial conduct commissioner.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 2 [ManInnTrade–1]—

Page 7, after line 15—After subclause (7) insert:

(7a) Nothing prevents the person appointed as the Independent Commissioner Against Corruption under the Independent Commissioner Against Corruption Act 2012 being appointed as the Commissioner under this section.

As foreshadowed, this amendment is consequential to the one before it.

Amendment carried; clause as amended passed.

Clause 10.

The Hon. K.J. MAHER: I move:

Amendment No 3 [ManInnTrade–1]—

Page 9, after line 15—After subclause (3) insert:

(4) The Commissioner may, under an arrangement established by the Independent Commissioner Against Corruption, make use of the services or staff of the Office for Public Integrity.

This amendment is to provide that the judicial conduct commissioner may make use of the services or staff of the Office for Public Integrity under an arrangement with the Independent Commissioner Against Corruption. The purpose of the amendment is to allow the Office for Public Integrity to provide assistance to the judicial conduct commissioner in the administration of complaints and their resolution.

Amendment carried; clause as amended passed.

Clause 12.

The Hon. K.J. MAHER: I move:

Amendment No 4 [ManInnTrade–1]—

Page 9, line 35 [clause 12(3)]—Delete 'The' and substitute 'Subject to subsection (3a), the'

This amendment is to be read in conjunction with amendment No. 5 which follows.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 5 [ManInnTrade–1]—

Page 9, after line 36—After subclause (3) insert:

(3a) If section 15 applies to a complaint, the Commissioner must not give any notices under subsection (3) on receipt of the complaint but may give such notices if consideration of the complaint under this Act is resumed following the referral under section 15.

The purposes of amendments Nos 4 and 5 are to provide that the judicial conduct commissioner is not required to give any notice to the judicial officer and the relevant judicial head under subclause (3) of clause 12 where there is a referral of a complaint for investigation of corruption in public administration to the Office for Public Integrity under clause 15.

The judicial conduct commissioner may give such notice if consideration of the complaint is subsequently resumed by the judicial conduct commissioner. The two amendments are to prevent an investigation into potential corruption in public administration being compromised or hampered by the notification to the relevant party that they are subject to such investigation.

Amendment carried; clause as amended passed.

Clause 15.

The Hon. K.J. MAHER: I move:

Amendment No 6 [ManInnTrade–1]—

Page 11, line 11 [clause 15(1)]—Delete 'is of the opinion that a complaint relates to conduct that may comprise' and substitute 'reasonably suspects that a complaint relates to conduct that involves'

This is to provide consistency with the Independent Commissioner Against Corruption Act 2012. The amendment creates a referral obligation to the Office for Public Integrity where the judicial conduct commissioner reasonably suspects that a complaint relates to conduct that involves corruption in public administration within the meaning of the Independent Commissioner Against Corruption Act 2012. The test of 'reasonably suspects' is consistent with the language and the threshold test provided for in the Independent Commissioner Against Corruption Act.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 7 [ManInnTrade–1]—

Page 11, after line 24—After subclause (2) insert:

(3) However, if the person appointed as the Independent Commissioner Against Corruption is also appointed as the Commissioner under this Act—

(a) the notification referred to in subsection (1)(b) is not required; and

(b) following a referral of a complaint under this section, the Independent Commissioner Against Corruption will determine the extent to which it is appropriate that the complaint be dealt with under this Act or the Independent Commissioner Against Corruption Act 2012.

This is to ensure consistency and to resolve any conflict with the Independent Commissioner Against Corruption Act 2012 in the event of a concurrent appointment of the Independent Commissioner Against Corruption as the judicial conduct commissioner.

The amendment provides that when a complaint is referred to the Office for Public Integrity from the judicial conduct commissioner for investigation under the Independent Commissioner Against Corruption Act 2012, the Independent Commissioner against Corruption can disperse with the notification requirements to the judicial conduct commissioner about any resumption of the investigation. The Independent Commissioner Against Corruption will have the power to determine whether the complaint is dealt with under the judicial conduct commissioner act or with the mechanisms that are available under the Independent Commissioner Against Corruption Act.

Amendment carried; clause as amended passed.

Schedule.

The Hon. K.J. MAHER: I move:

Amendment No 8 [ManInnTrade–1]—

Page 24, after line 28—After clause 6 insert:

Part 5A—Amendment of Independent Commissioner Against Corruption Act 2012

6A—Amendment of section 8—Commissioner

(1) Section 8(8)—delete 'The' and substitute 'Subject to subsection (8a), the'

(2) Section 8—after subsection (8) insert:

(8a) Nothing prevents the Commissioner being appointed as the Judicial Conduct Commissioner under the Judicial Conduct Commissioner Act 2015.

This amendment to the schedule is a consequential amendment to the Independent Commissioner Against Corruption Act 2012 to provide that nothing prevents the Independent Commissioner Against Corruption being appointed as the judicial conduct commissioner.

Amendment carried; schedule as further amended passed.

Long title.

The Hon. K.J. MAHER: I move:

Amendment No 9 [ManInnTrade–1]—Long title—

After 'Freedom of Information Act 1991,' insert 'the Independent Commissioner Against Corruption Act 2012,'

Amendment carried; long title as further amended passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation) (17:06): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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