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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-06-21 Daily Xml
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Independent Commissioner Against Corruption (Serious or Systemic Misconduct or Maladministration) Amendment Bill

Introduction and First Reading

The Hon. D.G.E. HOOD (16:40): Obtained leave and introduced a bill for an act to amend the Independent Commission Against Corruption Act 2012. Read a first time.

Second Reading

The Hon. D.G.E. HOOD (16:41): I move:

That this bill be now read a second time.

I rise to introduce this bill. The bill, of course, is to amend the Independent Commission Against Corruption Act 2012. This bill provides the Independent Commission Against Corruption with the powers of a commission as defined in the Royal Commissions Act 1917, allowing the commissioner to hold public hearings for matters relating to the investigation of serious or systemic misconduct or maladministration.

Over the past year, the commissioner has made some very clear statements, including statements to the media, a parliamentary committee and in his annual report indicating his preference to hold open hearings for matters relating to maladministration, where it is in the public interest to do so. The commissioner first stated a desire for public hearings in his report on the sale of the state-owned land at Gillman published on 14 October 2015. In his report, the commissioner states:

My experience in conducting this inquiry has caused me to consider whether I should recommend to parliament an additional measure with respect to such investigations. That is, whether I should have the power to conduct an inquiry into potential maladministration in public administration in public if such a public inquiry was in the public interest.

In my opinion—

he goes on—

the ICAC should be given that discretion. There are two reasons I think this should be considered.

First, when I investigate corruption I do not make findings. Whether or not a prosecution ensues is a matter for the Director of Public Prosecutions. Whether or not a person is convicted of a criminal offence is a matter for the court.

In contrast, unlike a corruption investigation, an investigation into maladministration in public administration will require me to make findings in respect of the conduct of a public officer or the practices, policies or procedures of a public authority.

He continues:

Secondly, there will be occasion where, as in this case, there is a significant public interest in the subject matter of the inquiry. In those circumstances, there is a strong argument in support of permitting public scrutiny of the evidence given, the submissions made and the procedure undertaken. In a corruption matter, such scrutiny would routinely occur when the matter is prosecuted in a court.

For these reasons I intend to write to the South Australian Parliament Crime and Public Integrity Policy Committee recommending that consideration be given to amending the ICAC Act to permit the holding of the hearings in respect of inquiries into potential maladministration in public administration, when it is considered that it is in the public interest to do so.

That is the end of the quote. It is quite a lengthy quote, but it outlines the commissioner's position very clearly. It is, indeed, a concise statement from the commissioner, summarising the need for public hearings and is especially relevant in the context of debating this bill. In a meeting I had with the commissioner last week, he confirmed his position had not changed and expressed in clear terms that this bill represents his preferred model. Hence, my decision to introduce this bill today.

Given recent developments, particularly those relating to the Oakden situation, it is a matter of urgency that the commissioner be able to conduct public hearings with respect to misconduct and maladministration. There is also significant public support, in my estimation, for a more open and transparent ICAC process, which this bill affords.

Importantly, and consistent with the views of the commissioner, investigations into matters of corruption under the act will not be public under this bill. I stress that. I would not support matters of corruption being made public and neither does the commissioner. Also, despite requesting access to cabinet documents, this bill does not confer upon the commissioner any such right. The bill simply focuses on open hearings for serious and systemic misconduct or maladministration, nothing further, nothing less.

In accordance with the bill's transitional provisions, current matters under examination by virtue of section 36A of the act will continue to be conducted in accordance with the powers of an inquiry agency, although the commissioner is entitled to withdraw from exercising those powers and begin exercising powers afforded to the commissioner under this bill.

This same bill was debated in the other place earlier this month. Although the bill was defeated in that place, the government failed to provide any persuasive reason for opposing open hearings, in my view. Speaking on behalf of the government, in opposition to the bill introduced by the member for Bragg, the Attorney-General, the member for Enfield, quoted the current act, which sets out that in exercising a power under section 36A the commissioner is bound to the provisions governing the exercise of the powers of an inquiry agency, which does not permit public hearings.

Although that is indeed what the act prescribes, and I have no disagreement with the Attorney in that case, a restatement of current legislation is not in itself a persuasive reason to justify opposition to a bill that seeks to amend the act in favour of public hearings. There is precedent for making improvements to the act based on the commissioner's recommendations. The Independent Commissioner Against Corruption (Miscellaneous) Amendment Bill 2016, assented to last year, was drafted in accordance with the recommendations of the commissioner, as well as recommendations from former Supreme Court Justice, the Hon. Kevin Duggan, in his review. Similarly, this bill is designed to improve the act and is also based on the commissioner's recommendations. I hope that it receives the support of this place.

It is important that the Legislative Council consider and debate this bill and that members are afforded the opportunity to put their views on this matter on the public record. The South Australian ICAC is often referred to as the most secretive in the nation and whilst, as I said, there can be some justification of that when it comes to matters of corruption, I see no justification, in most circumstances, when it comes to matters of maladministration or misconduct.

This bill will ensure greater transparency whilst protecting the integrity of the ICAC and those individuals who appear before it. I stress that in these particular matters it will be at the ICAC commissioner's discretion if these particular hearings are held in public or not. I think that is appropriate. There may be circumstances where an individual appears before a committee where the commissioner deems it appropriate that the matters are held in camera, and this bill does not restrict the commissioner's capacity to do so—he will have that power under this bill.

Again, I reiterate that it in no way allows the commission to hold hearings in public in matters of corruption, where I think it is appropriate that those matters are held in camera, because ultimately the DPP and then, of course, the courts will decide, when it gets to their stage and when they become involved. That is when it becomes public. The ICAC is really an investigatory body and nothing more prior to that.

I think people are familiar with this bill. Just for the sake of clarity, it is exactly the same as the Liberal bill that was presented in the House of Assembly. There was no reason to change it. As I said, I met the ICAC commissioner. He endorsed it in its current form and in fact argued that that was his favoured model and convinced me that there was no reason to change the bill. I present that bill today. I indicate to the chamber that I will be looking to bring it to a vote in the next week of sitting; that is two weeks hence, on the next Wednesday of sitting. I ask members to be prepared for a vote on that day.

Debate adjourned on motion of Hon. T.T. Ngo.

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