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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-07-24 Daily Xml
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Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 July 2018.)

The Hon. M.C. PARNELL (16:35): The establishment of the office of the Independent Commissioner Against Corruption five years ago was a very long time coming. For years, the now opposition maintained the position that such a body was unnecessary. However, once the ICAC was established, I think we collectively knew that we would need to learn from experience and that further amendment to the legislation would be required. Various reforms were made in 2014 and 2016, and now we are back again.

This time, the primary objective of the reforms is to allow for the commissioner to hold public hearings in certain circumstances, particularly in relation to maladministration and misconduct. The Greens are supportive generally of providing the commissioner with this power. However, with increased power and responsibility comes the need for increased accountability. That is why the Greens have a number of amendments, which we have placed on file and which we will get to in detail later on.

There are a number of submissions that we have received in relation to this legislation that I want to refer to very briefly. The first one is not a formal submission, but it is, I think, a relevant document. It is the five-year review of the office of ICAC and the Office for Public Integrity. That requirement for a five-year review is set out in the legislation. The minister gave the job of writing the review to, of all people, the reviewer; it makes sense. The reviewer, the Hon. Kevin Duggan, prepared this report, which was tabled—I do not know if it has been tabled; I assume it has been tabled—in parliament, but it covers the period up to 24 November 2017.

In that report, the reviewer outlines the fact that in the original legislation there was no complaints mechanism available to people who were dissatisfied with the processes that ICAC or the OPI followed. He points out that the legislation has been amended to fix that up. He also points out—and goes into some detail—that this issue of being able to hold public hearings is something that does exist in other jurisdictions. To quote one paragraph from his report, he said:

I recommend that the Act be amended so as to provide that the default position in the case of hearings into misconduct or maladministration in public administration, is that they be held in private. However, it is my view that the Commissioner should be given a discretion to hold a hearing or part of a hearing in public.

I think the legislation should set out the grounds upon which the discretion is to be exercised.

He notes:

It is significant that in Victoria, Queensland, Western Australian and now New South Wales, the discretion whether to order a public hearing is to be exercised by reference to criteria which is set out in the relevant legislation.

So the person charged with overseeing ICAC and the Office for Public Integrity thinks that the discretion to allow public hearings is a good idea.

The second submission is from the Law Society of South Australia, which I will refer to briefly, and I thank them. They have a number of queries in relation to the legislation. Their submission goes for some nine pages and they have recommended a number of things that parliament should look at in more detail. I think we will need to come back to their submission when we get into the committee stage and start to look at the bill in more detail.

I mentioned earlier that the Greens' view is that with increased power and responsibility should come increased accountability. We know that it is an ongoing process. I mentioned before that there was not much in the original legislation. It was changed in 2016 to give the reviewer the ability to take complaints directly. But the question that has concerned me is: how does that work in practice? Unless you are a lawyer or a member of parliament, it is actually incredibly difficult to find out how you go about lodging a complaint about ICAC or the Office for Public Integrity.

It is easy enough to lodge a complaint or make a report to ICAC, but it is very difficult to work out how you make a complaint about ICAC. Also, there are no records, to my knowledge, that have been published about how many people have made complaints about ICAC and what happens to those complaints. I suspect that many of them will go nowhere, and that is not a criticism of the reviewer because the role of the reviewer is not to be an appeal body or a second bite of the cherry. It is not the reviewer's job to second-guess every decision of the commissioner or the Office for Public Integrity, but there is an important role to be played in relation to the processes that are followed and how the commissioner's extensive powers are used, especially their coercive powers. I have drafted a number of amendments that go to that point.

I forwarded my amendments—they were filed, so all members of parliament get them—specifically to the Attorney-General's advisor and also to the shadow attorney-general. Somewhat flippantly, perhaps, I included in my email a line from a popular action series on television:

Your mission (should you choose to accept it) is to put yourself in the shoes of a member of the public, visit the ICAC website and find out how to make a complaint about ICAC…

In the event that there are other people listening to this or reading the Hansard later who might want to take up the challenge, there is a spoiler alert coming: I am going to tell you how to do it. It is possible because the link is there but it is well buried. It is not on the front page. You either have to go through the fine print at the bottom of the web page and find the site map and then you have to scroll down about three pages—and even then it is not clear where the link is—or you can go to the drop-down menu on the home page. You then have to go to the 'About Us' page. Then you have to look for another button called 'Accountability' and once you have clicked on that button you will eventually get a link to the independent reviewer's web page. Once you are on that page, you will then find another link called 'Making a Complaint'. I am pretty computer savvy but it was well enough hidden that I absolutely struggled to find how to go about making a complaint, if I wanted to—which I do not—about ICAC.

I also sent a copy of my amendments to the reviewer, the Hon. Kevin Duggan. I am very grateful to him that on very short notice he did find time to send me back some feedback. I will go into his response in more detail when we get to the clauses to which they relate in committee, but I think it is probably fair enough for me to say now that he was generally either supportive or neutral as to what I was trying to achieve, but he did think that some of the amendments were unnecessary because he thought they were already being implemented. We can explore whether that is, in fact, the case.

There were other amendments that he was, I think, quite reasonably nervous about, that he thought might result in an unreasonable expectation on the part of the community as to what the reviewer was actually able to do, given the provisions of schedule 4 of the act. I think there is, perhaps in the reviewer's mind, a fear of the floodgates argument coming true, but I am sure that is something we can deal with.

The final thing I want to say in relation to this bill is that, in spite of the fact that the Greens are generally supportive of giving the commissioner the power to hold some hearings in public, I understand that there will be at some point a motion to send this bill to the parliamentary Crime and Public Integrity Policy Committee for review and for report back to parliament. I want to put on the record that, if such a motion were to be moved, I think that is an excellent idea.

Members with whom I have discussed these matters over the years would not find it unusual that my position has always been that, in complex pieces of legislation, we should be sending more rather than fewer of these bills to committees where we can hear directly from experts. I am a big fan of scrutiny of bills committees. If we do not have a general committee to scrutinise bills, we should at least take the opportunity of the specialist committees that we have, and occasionally we will set up select committees.

However, in this case, there is a ready-made committee that already has responsibility for ICAC and the Office for Public Integrity, so I think it does make sense to send it to that committee. I do not sit on that committee, but I would urge those members who do to get the commissioner and the reviewer in to ask them about the bill. I would also appreciate if they could be asked about the amendments that have been filed, including mine, to get their views on it.

I think the Law Society should be invited in. It has made a nine-page submission and it has concerns about aspects of it, so let's get them in. There might even be some room, bearing in mind that I would anticipate a fairly short hearing, for some critics out there who probably deserve to be heard. Members who read InDaily may have seen a week or so ago an opinion piece from a local young solicitor with the heading, 'Why aren't alarm bells sounding over ICAC changes?' I do not know this particular lawyer—I did ring him up and we had a bit of a chat on the phone; I have not met him—but he raises some interesting points. It may well be that he would be someone who would appreciate the opportunity to explain why he feels there are concerns about the bill.

I think that sending this to a committee is a very good idea, and I think it could ultimately save time for this chamber when we come back after the winter break, because it may be that some of the amendments can be supported by consensus—we will perhaps have some answers there. There may be other amendments that need to be abandoned, and there will be yet others that we have not even thought of that will come out of the evidence and findings of the committee.

I have not discussed this with the government. My experience of governments—well, of the other persuasion—is that generally they are not fans of sending things to committees, especially if they think they either have the numbers or are close to having the numbers to get it through without that, but I think this is too important. I do not think that there is urgency involved. We have been talking about legislating for open hearings of ICAC for at least four years. I do not think another month or two will make much difference.

I hope that, if it does end up going to the committee, it will look at it quickly, that it will not drag its feet, and I would expect that we will be back here in this chamber going through the bill again very soon after the winter break. That would at least be my hope. Whilst I know there is no motion before the chamber, word in the corridor is that this might be a move that is forthcoming, and I am anticipating now that that is something I would welcome. I think it would make a lot of sense. Apart from that, as I say the Greens are generally supportive of the thrust of the bill, and we look forward to its more detailed consideration, I hope after the winter break.

The Hon. K.J. MAHER (Leader of the Opposition) (16:49): People will be happy to know that I will not speak for nearly as long on this bill as I did on the last one. I rise today to say, as we indicated in the other place, that Labor does not oppose the bill that is before the council. In fact, we have had time as an opposition to look at a whole range of policy positions. We have had time to consult, review and reflect on positions and, as a general and broad principle, the Labor opposition is in favour of open hearings of ICAC for matters related to potential issues of serious or systemic misconduct and maladministration in public administration. However, we have had the benefit of being able to consult with legal practitioners and other bodies about some of the concerns that have been raised and about the possibility of some of the protections that could be included for those who are appearing in public at such hearings.

I think the Hon. Mark Parnell talked about the role of a committee potentially looking at this, and that is something that we are supportive of. We think a committee should examine the bill and look at whether changes are needed. As the Hon. Mark Parnell said, it might be that the reasons that people have thought about amendments may come to pass and there may be good reasons for it in a committee hearing; or it may well be that the amendments that people are foreshadowing or thinking of or have indeed filed, the committee will be able to explain why they may not be needed. I think that is probably a sensible idea.

Occasionally, we pass amendments in this chamber and then use the time between the chambers when it goes back down to the house to reflect further and see if those amendments are necessary. The Crime and Public Integrity Committee is a specialist standing committee that was in fact created at the same time as the original ICAC bill passed this parliament for that exact purpose. It was created for the exact purpose of inquiring into how the act works, the nature and effect of the act and how the commission works in practice. That is the actual role of this committee.

What we would support and what we foreshadow moving is an amendment at the end of the second reading stage for this bill to be referred to the Crime and Public Integrity Committee. I can also foreshadow that we do not want to see this bill held up. We think it is important that this parliament, after much debate on open hearings of ICAC, actually gets on with the legislation and passes it. We do not want to see this bill held up. That is not at all the intention of referring something to a committee. To that end, I can foreshadow that, with an amendment to move to have the Crime and Public Integrity Committee examine this bill, we will also be seeking to move that it be an instruction to that committee that it report no later than Tuesday 4 September.

In fact, it would be that the investigation of the bill by that committee would happen over the winter break, and on the very first day that this parliament returns the committee will be required to report so that we can get on with debating any amendments. I think we will all be in a much more informed and better position to consider any potential amendments—with some already having been filed—with the benefit of having had a committee examine the bill before us but also any potential amendments. It might be that the advocates of the bill and the commission itself may see fit that it is appropriate that some amendments to what is already there succeed.

If it is a very short inquiry by the Crime and Public Integrity Committee, with an instruction to report back on the first day after the winter break on 4 September, it will enable most of us, and particularly crossbenchers, to have a very thorough consideration of this bill and the issues surrounding this bill.

As I said, if it succeeds and the bill is referred to this committee, I flag that I will also be moving that the committee reports back on the very first day of sitting, so there is no way this bill is held up; it is just the winter break and no longer that the committee considers this bill. I think that will put everyone in a much better place to consider the nature and effect of not only the bill but of any potential amendments.

With the benefit of having discussed this with members of the legal fraternity and bodies representing them, the opposition has some amendments that, if not referred to the committee, it will consider filing. We think it is a much better option to have issues that would otherwise be filed considered by this committee over the short winter break, to come back and report on the first day of sitting and then we can get on with the business of passing this bill swiftly. I move:

That all words after 'that' be deleted, and insert:

the bill be withdrawn and referred to the Crime and Public Integrity Committee.

I flag that, should that succeed, I will move that standing orders be so far suspended to enable instruction to the committee, the effect being that the committee reports back by Tuesday 4 September, which is the first day of sitting after the winter break.

The PRESIDENT: My understanding, for the benefit of members, is that we will come to that issue at the conclusion of the second reading debate.

The Hon. K.J. MAHER: Yes.

The Hon. D.G.E. HOOD (16:57): I rise in support of this government bill. It is yet another clear indication of the Marshall Liberal government's intention to govern South Australia with openness and transparency. I reflect on the comments of the two previous speakers and welcome their thoughtful input into the debate. My strong opinion on this proposed legislation should be no surprise to members in this place, given that I introduced a very similar bill in the last parliamentary session seeking to provide the Independent Commissioner Against Corruption with the powers he had been requesting for a number of years.

Unfortunately, my personal attempts, and those of the then Liberal opposition, to achieve this were repeatedly blocked by the former government, which evidently did not see value in it being kept and this bill passing. I am therefore very pleased and proud that the Liberal team is now in a better position to extend and clarify the commissioner's powers through this well overdue reform.

When the ICAC was eventually established by the former government, albeit following years of resistance from them, it did not allow for public hearings to be held, despite similar entities in other jurisdictions having this ability. In fact, South Australia's ICAC is notorious for sometimes being labelled as the most secret agency of its kind in Australia. It is, of course, a label they have sought for some time to rid themselves of by allowing the commissioner to hold inquiries of misconduct and maladministration in public.

I understand that, whilst the commissioner was initially supportive of the clandestine approach, his views changed significantly following ICAC's investigation into the sale of state government land at Gillman, through which he determined Renewal SA had engaged in maladministration, with its practices resulting in significant mismanagement of public resources. In his report on this particular matter, published on 14 October 2015, the commissioner stated:

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, the ICAC should be given that discretion.

These views of the commissioner need to be taken seriously and given due consideration as we endeavour to improve current practice. It is vital that our ICAC is provided with the tools necessary to fulfil its mandate effectively, efficiently and with the government of the day's full cooperation and support.

Of course, the regretful and shameful scandal concerning the former Oakden Older Persons Mental Health Service no doubt remains the most powerful impetus for change. The detestable treatment of elderly South Australians at the hands of trusted carers, along with the former state government's neglectful role in enabling this to occur for far too long without any meaningful intervention—indeed, for more than a decade, as we have come to understand it—is inexcusable.

The Oakden case was naturally what prompted me to introduce the Liberal's bill, which did not pass last year. When I met with Commissioner Lander personally at this time, he reiterated his unequivocal support for this proposed legislation. This was reflective of his public comments in response to the concerning revelations involving the facility. He stated:

…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.

A large contingent of the previous parliament certainly did support his views but regrettably not the majority.

It is worth noting that this bill before us is congruent with the commissioner's appeal in the sense that, although it provides for the discretion to hold public hearings in relation to potential serious or systemic misconduct or maladministration in public administration, it does not affect investigations into allegations of corruption.

In these instances, the ICAC will continue to ascertain whether there is sufficient evidence to suggest cases should be referred to the Director of Public Prosecutions or the police. Further, the bill seeks to clarify and consolidate the commissioner's powers by enumerating these in a schedule to the ICAC Act, as opposed to the agency operating and exercising powers in reference to the Ombudsman Act and the Royal Commissions Act.

The current scheme is unnecessarily convoluted, and I understand a lot of time was spent on legal argument during the Oakden inquiry in relation to uncertainties regarding the precise powers of the ICAC. It is clear that this can be remedied quite simply, and I am sure members would agree we cannot afford to endure any more costly delays that can easily be avoided whenever a government's actions come under scrutiny.

The effective operation of the Independent Commissioner Against Corruption is fundamental in maintaining public integrity. The ICAC's independence and the fact that it is not subject to the direction of any person in relation to any matters enables it to be in a unique position to execute its functions without fear or favour. More than ever, recent events have convincingly revealed the need for swift reform to ensure it can perform its mandate optimally. The Marshall Liberal government will not relent until our laws serve to facilitate this.

Indeed, the measures in this bill constitute an important part of the Liberal team's policy commitments prior to the last election, and it intends to deliver on its promises. It is certainly an important aspect of our transparency and accountability agenda to be implemented across government. It is therefore our sincere hope that all members in this place will support the passage of this bill in the best interests of South Australians.

Debate adjourned on motion of Hon. T.J. Stephens.

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