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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-11-15 Daily Xml
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Independent Commissioner Against Corruption (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 September 2016.)

The Hon. J.A. DARLEY (17:43): I rise in support of this bill. I understand the changes in this bill were based on recommendations by the Independent Commissioner Against Corruption, Mr Bruce Lander QC. Whilst I support the bill, I am disappointed that there are no amendments to allow the ICAC to conduct hearings in public, especially given Commissioner Lander's public comments on this matter. Commissioner Lander has previously made statements that, whilst he still supports corruption hearings being held privately, there are some cases of maladministration where it would be in the public interest to have the hearings open to the public.

I have investigated moving amendments to this bill to allow for public hearings; however, I have been advised that the amendments would not be simple and would not conform with the objects of the bill. I do not believe that this is something that should be rushed and so I have accepted that this is a matter which will need to be addressed at another time. I have instructed my office to continue to investigate this matter and I anticipate presenting a bill on this matter in the future.

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:44): Before I move to close the debate on the second reading, I wish to thank the opposition for indicating their support for this bill. These reforms are important to ensure that the legislative framework for the Independent Commissioner Against Corruption works well, as intended, to maintain public integrity and to have a primary focus on investigating corruption. I indicate that the government will be moving some amendments as a result of further scrutiny of the bill by the commissioner. The amendments refine and clarify certain clauses and address some technical inconsistencies in drafting. I now move to close the debate on the second reading.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: The opposition is supporting the bill. The Liberal opposition is not seeking to amend the bill. We note that the government's amendments are technical in nature, and they will be supported by the opposition. We note that the bill has been drafted in consultation with key stakeholders. Any questions that the opposition have had have been answered.

The Hon. P. MALINAUSKAS: Apart from acknowledging the remarks of the Hon. Mr McLachlan, the government is appreciative of the opposition's collaborative work on getting this bill into a format that is supported by the opposition.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 3, line 23 [clause 4, inserted subsection (2)(b)]—Delete 'the public authority concerned' and substitute 'a public authority'

The amendment makes the wording consistent with the rest of the act and allows matters to be referred to a public authority, rather than the public authority concerned with a particular matter.

Amendment carried; clause as amended passed.

Clauses 5 to 8 passed.

New clauses 8A and 8B.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–1]—

Page 5, after line 8—After clause 8 insert:

8A—Amendment of section 18—Organisational structure

Section 18—after subsection (4) insert:

(5) Where this or any other Act confers a power on the Office or requires that the Office perform any function (including requiring that the Office make a determination, or form an opinion, as to any matter)—

(a) the power or function may only be exercised or performed by a person who is authorised to do so on behalf of the Office by the Commissioner; and

(b) the exercise of that power or the performance of that function by a person so authorised will be taken to be the exercise of that power or the performance of that function by the Office.

8B—Amendment of section 23—Assessment

Section 23(1)—delete 'recommendations must be made to the Commissioner accordingly' and substitute:

a determination made as to whether or not action should be taken to refer the matter or to make recommendations to the Commissioner

The amendment is self-explanatory. It is to avoid any argument that the OPI, as an office rather than a person, is not capable of making a determination or forming an opinion. It clarifies that such determinations, opinions and functions are made or performed by persons who are authorised to do so and are therefore validly made or carried out. Regarding 8B, this amendment is necessary to recognise clause 7, amending the functions of the OPI to allow OPI to refer matters directly, without reference, to the appropriate commissioner.

New clauses inserted.

Clauses 9 and 10 passed.

Clause 11.

The Hon. P. MALINAUSKAS: I move:

Amendment No 3 [Police–1]—

Page 6, after line 11—After subclause (2) insert:

(3) Section 36(7) and (8)—delete subsections (7) and (8) and substitute:

(7) The Commissioner may at any time—

(a) revoke a referral to a public authority; or

(b) revoke or vary directions or guidance given to a public authority or give further directions or guidance,

as the Commissioner sees fit.

(8) If—

(a) a referral of a matter by the Commissioner under this section included a requirement that the public authority submit a report or reports on action taken in respect of the matter; and

(b) the Commissioner is not satisfied that a public authority has duly and properly taken action in relation to the matter,

the Commissioner must inform the authority of the grounds of the Commissioner's dissatisfaction and give the authority an opportunity to comment within a specified time.

The amendment remedies a drafting omission by inserting into section 36 the same amendments that the bill makes to section 38. These sections have identical wording.

Amendment carried; clause as amended passed.

Clauses 12 to 14 passed.

Clause 15.

The Hon. P. MALINAUSKAS: I move:

Amendment No 4 [Police–1]—

Page 7, lines 23 to 31 [clause 15(1)]—Delete all words in these lines

Clause 15 is intended to broaden the commissioner's power to report whilst protecting the identity of a person involved in a particular matter. However, the clause as presently worded has the unintended effect of restricting the report of matters, raising potential issues of corruption in public administration. This amendment has been drafted in consultation with the commissioner to better reflect the intention of the clause. It would ensure that the commissioner can provide meaningful reports to parliament without identifying a particular person involved in a particular matter, that has been subject to assessment, investigation or referral without the consent of the person.

Amendment carried.

The Hon. P. MALINAUSKAS: I move:

Amendment No 5 [Police–1]—

Page 7, after line 32 [clause 15(2)]—Insert:

(1a) The Commissioner must not—

(a) prepare a report under this section setting out findings or recommendations resulting from a completed investigation into a potential issue of corruption in public administration unless—

(i) all criminal proceedings arising from that investigation are complete; or

(ii) the Commissioner is satisfied that no criminal proceedings will be commenced as a result of the investigation, in which case the report must not identify any person involved in the investigation; or

(b) prepare a report under this section setting out findings or recommendations resulting from a completed investigation into a potential issue of misconduct or maladministration in public administration that identifies any person involved in the particular matter or matters the subject of the investigation unless the person consents.

I simply refer to my earlier remarks.

Amendment carried; clause as amended passed.

Clauses 16 to 19 passed.

Clause 20.

The Hon. P. MALINAUSKAS: I move:

Amendment No 6 [Police–1]—

Page 9, after line 24 [clause 20, inserted section 54(3)]—After paragraph (b) insert:

(c) the information relates to the person and is disclosed by the person to a close family member of the person.

Amendment No 7 [Police–1]—

Page 9, after line 25 [clause 20, inserted section 54]—After subsection (3) insert:

(4) For the purposes of subsection (3)(c), a person is a close family member of another person if—

(a) 1 is a spouse of the other or is in a close personal relationship with the other; or

(b) 1 is a parent or grandparent of the other (whether by blood or by marriage); or

(c) 1 is a brother or sister of the other (whether by blood or by marriage); or

(d) 1 is a guardian or carer of the other.

Amendment nos 6 and 7 are related. This amendment will insert an exception to the confidentiality provision for disclosure by a person who is the subject of a complaint to a close family member, to enable that person to obtain support during the investigation of that matter. The amendment will be consistent with proposed provisions in the Police Complaints and Discipline Bill.

Amendments carried; clause as amended passed.

Clause 21.

The Hon. P. MALINAUSKAS: I move:

Amendment No 8 [Police–1]—

Page 9, line 31 [clause 21, inserted subsection (1)]—Delete 'under this Act' and substitute:

in relation to suspected corruption, misconduct or maladministration in public administration

Amendment No 9 [Police–1]—

Page 9, line 33 [clause 21, inserted subsection (1)(a)]—Delete 'under this Act' and substitute:

in relation to suspected corruption, misconduct or maladministration in public administration

Amendment No 10 [Police–1]—

Page 9, line 40 [clause 21, inserted subsection (1)(b)(ii)]—After 'action' insert:

in relation to suspected corruption, misconduct or maladministration in public administration

Amendment No 11 [Police–1]—

Page 10, lines 2 and 3 [clause 21, inserted subsection (1)(b)]—Delete 'as the investigation under this Act'

Amendment No 12 [Police–1]—

Page 10, lines 5, 6 and 7 [clause 21, inserted subsection (1)(c)]—Delete 'obtained by the exercise of powers under this Act and not' and substitute 'not obtained'

Amendment No 13 [Police–1]—

Page 10, line 9 [clause 21, inserted subsection (1a)]—Delete 'under this Act' and substitute:

in relation to suspected corruption, misconduct or maladministration in public administration

I am happy to speak to amendment nos 8 to 13, as they are all related. The intention of these amendments is to ensure that information or evidence obtained in respect to an investigation into corruption of serious or systemic maladministration may be used in any other investigation into a potential issue of corruption or serious or systemic maladministration.

Without this clarification, the wording may be read as referring to investigations undertaken under the ICAC only and not, for example, under the Ombudsman Act or by another inquiry agency. An investigation may be construed as an investigation into corruption in public administration only, precluding the use of information and evidence in relation to investigations into misconduct or maladministration in public administration.

Amendments carried; clause as amended passed.

Clause 22 passed.

Clause 23.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–2]—

Page 13, line 7 [clause 23, inserted Schedule 3, clause 4(6)(b)]—Delete 'Commissioner' and substitute ''claimant'

Amendment carried; clause as amended passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:56): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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