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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-07-05 Daily Xml
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Independent Commissioner Against Corruption (Serious or Systemic Misconduct or Maladministration) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 June 2017.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (16:47): I rise to speak to the Independent Commissioner Against Corruption (Serious or Systemic Misconduct or Maladministration) Amendment Bill. I indicate also that my colleague the Hon. Andrew McLachlan will also be making some comments on behalf of the opposition, so there will be two speakers from the opposition. This bill mirrors a previous bill introduced in the other place by my colleague, the member for Bragg. The bill was defeated by the Labor government and a number of so-called Independents earlier this year, but I will touch on that more shortly.

The bill seeks to amend the ICAC Act 2012 to provide the ICAC with the powers of a commission as defined in the Royal Commissions Act 1917. One of the effects of this bill is that it will ultimately allow the commissioner to hold public hearings for matters relating to the investigation of serious or systemic misconduct or maladministration. It would provide greater transparency throughout the ICAC process, while maintaining the ICAC's integrity, and that is a prospect that terrifies the incompetent, secretive and dishonest Labor government sitting opposite.

The Weatherill government is lurching from one crisis to another, from South Australia's record unemployment rate, this government's failed Transforming Health policy, child protection, Oakden, electricity crisis, overflowing prisons, and the list goes on. The South Australian Labor Party is fighting for its political survival, and those opposite know that, if their scandals keep being exposed at the same rate they are currently are, they will suffer political annihilation at the next election. But that is what this bill is about for the Labor Party—political survival. South Australians are fed up with the constant deceit, lies, spin and rhetoric that this government churns out on a daily basis, and rightly so.

Let's look at the genesis of this bill before the chamber. The recommendation that the Independent Commission Against Corruption (ICAC) be permitted to hold open hearings if it was in the public interest when investigating matters of potential maladministration came from the commissioner himself following his investigation of the scandalous Gillman land deal. The Gillman land deal was a failure of monumental proportions. This is a deal that the Supreme Court ruled unlawful and irrational that cost taxpayers of South Australia $2.2 million just to cover the legal costs of Adelaide Capital Partners and IWS (Integrated Waste Services) and then cost another $20 million because Labor botched the compulsory acquisition of the Gillman land from the Adelaide City Council.

This is a deal that saw more than half the Renewal SA board resign in protest, and if that was not bad enough, the light was also shone on the state's treasurers. ICAC heard evidence that Treasurer Koutsantonis swore at public servants and that he used the c-word. The Treasurer sought to intimidate and bully these public servants. This kind of behaviour is rife within the Labor Party. Who could forget minister Hunter's dummy spit at Rigoni's? He used inexcusable language towards a female in that instance—or any human being—and then went out to celebrate with an ice-cream. Is this man fit to be a minister? You have got to be kidding.

Let's look at Oakden. We could have public hearings by the end of this month if Labor wanted to grant commissioner Lander's wish and vote to support these public hearings. Yet another incompetent, failed Labor minister has overseen the most profound abuse of South Australia's most vulnerable since the child protection crisis came to light a couple of years ago. To call minister Vlahos incompetent would insult the other incompetent people out there.

This minister received the Oakden report, as we all know, on Monday 10 April. She did not read the Oakden report until the following weekend and no public statement was made for 10 days until 20 April. Instead of reading and acting, the minister was taking selfies in the Qantas Club lounge and drinking gin and tonics. When the minister finally read the report, she did not raise it with the Premier. He, too, was busy on holidays. Did she raise it with the mental health commissioner? No. Luckily, she caught him at Bunnings at Mile End. The extent of the conversation was—and I quote from the minister in question time earlier this year:

…he said, 'Seen the report?' I said yes, and that is the limit of my involvement.

Again, you have got to be kidding. It troubles me that the Labor Party has awarded this most incompetent and underperforming minister the number one spot on next election's Legislative Council ticket. This speaks volumes about the shallow pool from which the Labor party is now plucking their future members of parliament. This government is petrified of having the spotlight shone on it. The families of the victims of Oakden, and all South Australians, have the right to know what happened at Oakden and how their elected representatives were involved or responsible.

The argument is simple: if this government has nothing to hide, then why oppose the bill? The culture of cover-up will continue as long as the Weatherill government is in office, because this government cannot afford to have the light shone on some of its dealings. In the wake of the Oakden scandal, commissioner Lander said:

Since publishing the Gillman report, I have consistently said there are very good reasons to provide me with the discretion to conduct maladministration investigations in public. My views have not changed. However, this is ultimately a matter for Parliament, which I note still does not have an appetite for it.

Well, I think this parliament does have an appetite for it. The anti-corruption commissioner wants open hearings, the families of Oakden victims want public hearings, the state Liberals want open hearings, and the people of South Australia want public hearings. The only people who do not want public hearings are this secret and cowardly Labor government and a couple of weak Independents who have been bought off with ministerial offices.

Looking at those ministerial Independents, the member for Waite and the member for Frome, if you could measure their independence, you could put it in an egg cup and still have room for the egg. The fact that all MPs support public hearings for maladministration except those in bed with the government speaks volumes. The member for Waite should in particular hang his head in shame. As opposition leader, the member for Waite advocated for an ICAC, advocated for public hearings, and now he has become the Labor government's puppet. The member for Waite may call himself an Independent Liberal, but at the end of the day he is a minister in the Labor government and takes his marching orders from Premier Weatherill and the faceless men who control the Labor Party.

The member for Waite's lack of independence is only superseded by his ego and his ambition. He would never do anything that would potentially jeopardise his ministerial office. The member for Waite fought admirably to establish South Australia's ICAC, but has quickly changed his tune after he got a bit of a pay rise, a chauffeured car and an office overlooking Victoria Square.

The Hon. J.S.L. Dawkins: And the title 'honourable'.

The Hon. D.W. RIDGWAY: My colleague interjects—and I know they are out of order—'and the title "honourable"'. The member for Waite, as we all know, was a political traitor, and what else would we expect from him. The people from Waite will not stomach him any longer. As we saw in The Advertiser a year or so ago, he was down at 5 per cent popularity. At the next state election, I have no doubt that the people of Waite will see through this selfish, duplicitous man, and I would be surprised if he managed much of a vote at all.

As for the member for Frome, I was perhaps a little harsh on minister Vlahos when I called her the most incompetent Labor minister. The member for Frome is nothing short of weak. The Premier barely lets him answer a question at question time. He has achieved absolutely nothing as minister and, like the member for Waite, he is just another Premier Weatherill puppet.

The Hon. K.J. Maher interjecting:

The Hon. D.W. RIDGWAY: The members for Waite and Frome will have one more chance to redeem themselves, as the Leader of the Government interjects, on this matter at least before the next election. I expect this bill will pass this place and will end up in the other place in due course, and they will have one more chance to show their independence and stand up for their local community and stand up for the victims of Oakden and support this bill. If not, everyone at the next election will know they are both nothing more than Labor puppets, and I have every faith they will vote according to this Labor puppetry. With those few words, I commend the bill to the chamber.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:55): The government opposes this bill. The government remains unconvinced that this would provide an improvement in the operations of the ICAC Act. There is no evidence that maladministration investigations would be improved by the ability to hold public hearings. There is a fear that the publicity may deter whistleblowers from coming forward at all.

A public hearing, by its very nature, attracts publicity. Witnesses names will be made public, and the mere attendance at an ICAC hearing raises suspicion of a connection with corruption, whether or not it is actually the case. The nuance that an investigation is concerned with maladministration and not criminal conduct may well be lost.

There will always be a risk of guilt by association with an ICAC hearing. There is no controlling what or how much of the evidence is reported, and how widely and quickly it is reported once it is made public. If some parts of the hearing are held in camera that may simply raise public suspicion and cause damage to a person's reputation.

It is possible that an investigation into maladministration will uncover other matters leading to potential issues of corruption. The crossover may not be immediately apparent, but it will be public. How that information can then be dealt with appropriately under the legislation is very problematic. Investigations into corruption are carried out privately, and early disclosure of information may have a detrimental effect on further investigation, prosecution or court proceedings. This scheme was designed to minimise that risk. There is a world of difference between the public interest and of interest to the public where serious matters are being investigated.

I refer to the New South Wales parliamentarian the Hon. Dr Peter Phelps MLC's recent submission to the commonwealth Select Committee on a National Integrity Commission. His comments are made in reference to the New South Wales ICAC, and I quote:

Nobody wishes to be seen to be opposing anticorruption measures, which is how it is usually falsely portrayed, but we all know about the structural failings of the existing regime.

The existing system is actively aided and abetted by many areas of the media, notably the Fairfax press and the ABC. The reason for this is not hard to fathom, and does not rely upon the vainglorious notions of 'noble role of the Fourth Estate'—rather, ICAC simply provides great copy.

There is no need for investigative journalism; you can just transcribe the lurid sections of the day's proceedings. You slaver over the details and faithfully recite the promises from Counsel Assisting on expectant horrors to come. Whether these horrors ever eventuate is irrelevant; whether the person's wrongdoing is ever evidenced in later hearings is also irrelevant. All that matters is that you, as a journalist, have your story for the day, and 'bugger the reputation' of those who might be falsely implicated.

That is the end of the quote from the New South Wales MLC. The government has agreed to a number of amendments since the ICAC Act came into force. It is important to provide ICAC with sufficient powers to undertake rigorous investigations into matters raising issues of potential corruption.

There has been good cooperation between the ICAC and the government to improve operational aspects of the legislation. The government is satisfied that the act contains a well-balanced scheme, and that there is no evidence to support further amendments at this time. The issue is whether this amendment is necessary and is an improvement to the act. It is not: quite the contrary. These measures do not serve the interests of justice or protect the innocent.

I note that there are members on the other side in this chamber who have expressed exactly these views to the government previously, and they are exceptionally concerned about what would be the outcomes if public hearings like this were held, both to individuals' reputations and to the scheme that operates as ICAC. I look forward to some of the private views that have been very strongly expressed coming out from Liberal Party members in this debate today.

As things presently stand with ICAC, a final report will still be prepared and made public but only after the evidence has been weighed in its entirety. This satisfies any legitimate public interest and affords the opportunity to protect the innocent from collateral damage. I urge members to oppose this bill.

The Hon. M.C. PARNELL (17:00): I wish to speak briefly to put on the record some observations and a position around this bill, which is going to be, as I understand it, put to a vote today. I will at the outset say that I have spoken at some length to the Premier and the Deputy Premier about their concerns over this legislation.

The minister, in his contribution just now, has pretty much outlined the concerns that the Premier and the Deputy Premier raised with me: issues in relation to the potential unfair smearing of diligent, hardworking officials in a media circus where the damage, regardless of the outcome, might not be undone. Let me say at the outset, I absolutely get the concerns of the government. These are serious issues, and we need to be mindful of how we amend this legislation if we are going to depart from the current provision, which is that these maladministration hearings are heard in private.

But on the other hand, there is a huge amount of public concern about some of the recent situations that go to the ability of the government to conduct its affairs appropriately and properly. The Oakden situation I think is perhaps one of the water-cooler moments in this state. People are asking: how is it that a state-owned facility could have been managed so badly? How could so many people have been abused for so long? With such a large number of public servants, public doctors and public nurses—all manner of publicly employed people—who had interactions with that facility, who went onto the site and saw what was going on, how is it that nothing happened?

Clearly, something has gone wrong. I think that Oakden is a line in the sand in a way because it is something that everyone can relate to. You can imagine your grandparent there, or your parent, some other relative or a friend there. You can think with horror about what they might be putting up with when visitors have gone and only the residents and the people administering the facility are there. I think that has focused people's minds on how inquiries are undertaken when things go wrong in government enterprises.

Independent Commissioner Against Corruption Bruce Lander himself has asked for the ability to decide whether these hearings should be held in public or in private. I understand that he may have changed his mind over the period since the act was first introduced. I have not spoken to him about it, but it has been put to me that he was quite happy with the secrecy provisions, for want of a better word—the hearings in private. He was quite happy with those when he started his tenure, but he has now asked for this additional power, and I think we have to take that request very seriously.

The government scenario, as the minister outlined, is one of potential reputational damage, guilt by association and media frenzy. It is easy to look at that situation and see the victim as a very junior public servant who is not paid very much and is somehow being tainted, but the other side of the coin is we are talking about ministers of the Crown. We are talking about the CEOs of departments with responsibilities for hundreds and, in some cases, thousands of staff. I think there is a public interest in ensuring that their administration is properly scrutinised, and that lends weight to the call for public hearings.

Given that we are being asked to vote on this today, the Greens are going to trust that the commissioner will exercise the powers to be given to him by this bill appropriately and that measures will be put in place to ensure that hearings are conducted properly and fairly. Whilst the original model was one that the Greens did support, Oakden has been a bit of a wake-up call, I think for all of us, and given that the commissioner has asked for this power, I think we should trust that the commissioner knows what he is doing. He knows what is required for the public to be confident in the administration of the government of South Australia and its various enterprises, so the Greens will be supporting the legislation.

The Hon. J.A. DARLEY (17:05): The bill to amend the Independent Commissioner Against Corruption Act will give the commissioner the discretionary powers of a royal commission when investigating matters of maladministration. In effect, this will allow the commissioner to hold public hearings for these matters. I have been lobbied by the government on this bill and I understand that they have a number of concerns with this suggestion. They are concerned that members of the public will not be able to distinguish the difference between investigations of maladministration and corruption. The assumption is that, because the Independent Commissioner Against Corruption is investigating a matter, it must be a corruption matter, as indicated by their title.

The government is also concerned that anyone called as a witness to an investigation will automatically be regarded by the public as being guilty of corruption, notwithstanding the fact that they have only been asked to provide information about a maladministration matter. The government was concerned that public hearings would only benefit the media, and the public would be presented with a distorted view of the investigation in an attempt to gain copy and ratings. Finally, the government was concerned that the account of one witness would be painted out to be the truth if publicised through the media, notwithstanding any evidence to the contrary that may emerge further in the investigation.

I cannot say that I am swayed by any of these arguments. By this logic, the government would have court proceedings and parliamentary inquiries held confidentially. These matters are held in public for transparency and to give the community confidence that investigations and inquiries are conducted in a manner that is fair and balanced. This bill will be one step removed from these practices. Not all examinations will be held in public—only those where the commissioner believes that there is public interest and where it is appropriate.

I believe that parliament should be guided by the commissioner on this matter. Late last year during the debate on the ICAC bill, I flagged that I had discussed with parliamentary counsel amending the act to allow the commissioner discretionary powers to hold public hearings. This was in response to the commission's recommendations in his report on Gillman. Unfortunately, the advice I received from parliamentary counsel was that I could not amend that bill to include those provisions, so it should come as no surprise that I will be supporting the Hon. Mr Hood's bill today.

The commissioner will have the discretion to decide if and when matters should be held in public, based on whether it is in the public interest to do so. The commissioner's discretion can also be exercised to hold parts of the investigation in public and parts in private. Matters of maladministration only relate to the conduct of public officers and authorities. These are funded by the taxpayer, and as such, they should have a right to hear about these matters. They should not be kept in the dark until the investigation is finalised. If there is a matter that is of public interest, then taxpayers should know the details if the commissioner deems it to be appropriate.

The commissioner's powers under the current act are already very broad, and much relies on the commissioner's discretion. The government had enough confidence in the commissioner to recommend their appointment and they should have enough confidence in the individual to make the right decisions and not abuse powers given to them under the act.

The Hon. A.L. McLACHLAN (17:10): I rise to speak to the Independent Commissioner against Corruption (Serious or Systemic Misconduct or Maladministration) Amendment Bill. As a member of the Liberal Party as well as a member of the Crime and Public Integrity Policy Committee it is appropriate that I add my voice in support of the bill brought to this place by the Hon. D.G. Hood. It is the Liberal Party's position to support the passage of this bill through the chamber. The clauses of the bill are identical to the bill that was previously tabled in the other place by the Liberal Party.

The Liberal Party has a longstanding policy position that there should be the ability for the commissioner to have public hearings. In the aftermath of the discovery of the tragic events that occurred at Oakden, as pointed out by my friend the Hon. Mr Parnell, the Liberal Party has itself also reaffirmed its position that public hearings for maladministration remain an appropriate policy position.

The effect of this bill has been requested by the commissioner. Unlike in corruption investigations, where the commissioner is conducting inquiries into maladministration he is required to make findings in respect of a public officer or the practices, policies or procedures of a public authority. In certain circumstances there may also be significant public interest in the subject of the inquiry. It therefore becomes important to ensure that public confidence in the process of the inquiry is not undermined by the veil of secrecy. Publicity helps guard against impropriety or the accusation of impropriety. The public are able to see for themselves the absence of bias in the decision-maker and that those who appear before the commissioner are treated fairly. It also helps ensure proper processes are adopted. Publicity is a mechanism by which the commissioner can maintain public confidence in the institution he leads.

I have learned, from my time serving on the Crime and Public Integrity Policy Committee, that it is difficult to hold the performance of the commissioner and his staff to account. Ultimately we must trust him to act appropriately. There is an independent review of the body, but this is only procedural in its nature and does not review his decisions or judgement. Therefore, one of the mechanisms for ensuring performance is the public conduct of an inquiry.

I acknowledge this solution also has its imperfections. Open hearings can cause pain and suffering for the individual who may ultimately be found to be blameless, despite the brazen and cruel headlines that remain in the mind of the public. Individuals will pay a great cost through the loss of their privacy. We have seen this occur in New South Wales and the controversial conduct of a similar organisation in that state. This risk is even greater in our modern world dominated by social media that is a collection of sensational headlines and little substantive analysis.

It is a very difficult balance, and it is a very significant dilemma. It has always been so, but over time experience has taught us that openness underpins public confidence. Without public confidence the integrity of the commissioner will be rendered impotent, no longer having a moral force to carry out his tasks. It is for this reason that the Liberal Party put forward this bill in the other place and supports the identical bill that lies before us.

When we last debated amendments to this act my colleague the Hon. R. Lucas stated that the model for our ICAC should evolve, and that its operation should be the subject of ongoing reflection by all members of this parliament as well as their respective parties. I agree with my colleague. We need to regularly reaffirm the nature of our ICAC and its operations and whether it meets the needs and expectations of our community. We must also keep an eye on the events and practices in other states and territories. This will inform us about how we proceed in this state. If we find the public are not receiving a tangible benefit from the organisation or that individuals are being unfairly impacted then, as has occurred in New South Wales, we will need to revisit the model.

We must remember that the ICAC was created to focus on corruption. I give my assurance to honourable members that I will continue to diligently examine these issues as a member of the Crime and Public Integrity Policy Committee. I indicate my support for the second reading.

The Hon. K.L. VINCENT (17:14): The Dignity Party also supports the bill. Given that at the very heart of the issues at Oakden that have been recently uncovered is a culture of secrecy and cover-up and people not necessarily coming forward when the wrong thing was done, I think we need to follow every possible avenue to shine a light on these issues. I have some sympathy for the government's concerns; however, given that the bill does allow, as other speakers have already said, for the commissioner to exercise discretion about which hearings will be public and which will not, I think that should go some way to allay these concerns. So, we will support the bill.

The Hon. D.G.E. HOOD (17:15): Just briefly in summing-up, I would like to thank all of the speakers: the Hons Ridgway, Maher, Parnell, Darley, Vincent and McLachlan. I also acknowledge that this is not my bill as such. It was initially introduced by the member for Bragg in the other place, and it is of course substantially her work, and I acknowledge that.

It is a very simple bill, and I think members have explained it quite well in their contributions this evening. It simply allows for the ICAC to hold public hearings and investigations for matters of maladministration and misconduct but, importantly, not for matters of corruption. I, for one, will not be supporting public hearings for matters of corruption because I see them as very distinctly different in significant ways. I will not go through all of those reasons; I outlined them in my second reading contribution a few weeks ago.

The fundamental difference is that corruption matters can typically be criminal matters, and they are matters where the ICAC commissioner himself does not make findings; that is, he simply decides whether to refer a matter to the DPP for their consideration as to whether or not to pursue it through the courts. That is the significant difference, and that is why I see a clear distinction between matters of maladministration and misconduct, and corruption. Just to reiterate: I certainly would not be supporting any bill that had matters of corruption being held in the public arena.

For the benefit of other members, I have met with the ICAC commissioner and his senior staff, and he has supported the model that has been presented to the chamber today. He was quite explicit in his endorsement of the model. It very much was his wish that this bill passes. He said to me it will provide an opportunity for these matters to be done in a transparent way, which will enable a high degree of public confidence as these matters transpire, and I certainly agree with him.

As a final few comments, if I may, this is an unusual thing for me to do. I am not someone who normally involves himself in what you might see as overtly political matters. It is not my nature. It is not something that I have done. I think members would agree. Those who have observed me over the nearly 12 years in this place would know that it is not something I would normally be involved in. I am not doing it for political purposes; I am doing it because I genuinely believe it is right.

What stimulated my strong interest in this matter was through a personal relationship: a lifelong friend of mine who had an uncle in the Oakden facility. I was able to hear from her firsthand accounts of what her uncle had been through, which were truly horrific. It is genuinely shocking that in our society people would experience this sort of mistreatment under these circumstances.

For that reason, I think we need to have a proper investigation, not just of this Oakden matter but of any other relevant matters as they transpire in the future. One important thing about the bill before us tonight is that, as I think the Hon. Mark Parnell said quite well, ultimately all it does is give the commissioner discretion to hold these matters in public. He or she—if it should be a she in the future—may decide not to, and if that is the case we would certainly support that as well. With those few words, I look forward to the committee stage.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. D.G.E. HOOD (17:20): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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