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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-12-02 Daily Xml
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Parliamentary Committees

Crime and Public Integrity Policy Committee: Matters of Public Integrity in South Australia

The Hon. F. PANGALLO (15:50): I move:

That the report of the committee into matters of public integrity in South Australia, be noted.

On Friday 8 March 2019, the committee resolved of its own motion to commence this inquiry, and it is perhaps fair to say we did not envisage that we would be tabling our report in December 2020. The terms of reference for the inquiry required the committee to inquire into and report on the following:

The functions, interrelationships between and resources required to support the operations of the Auditor-General, the Independent Commissioner Against Corruption, commonly referred to as ICAC, and the Ombudsman;

The functions of the committee;

Anticorruption measures that seek to ensure office holders and institutions remain incorruptible and independent, including the Parliament of South Australia;

Options that may provide for increased efficiency or effectiveness of the above; and

Any other relevant matter as the committee sees fit.

The committee received submissions from 16 persons or organisations, four were received in confidence. Fourteen public hearings were held by the committee and three hearings were held in camera. Significant recommendations include proposals to focus the office of the ICAC on matters of corruption and in public administration and for the office of the Ombudsman to be conferred with further functions in respect of matters of misconduct and maladministration in public administration.

These appeared important structural changes and the committee was of the view they are likely to improve the demarcation of responsibilities, particularly by focusing the work of the ICAC on matters of corruption. The public is already likely to understand this to be the primary function of the office and the ICAC already refers a significant number of investigations into potential misconduct or maladministration to the Ombudsman.

Protocols for the sharing of information can be established between the agencies, as appropriate. The establishment of a separate independent commission against corruption is also a matter proposed by the committee for consideration. If the commissioner or a commission was to retain the current functions of the ICAC, the committee further recommended that consideration be given to changing the name of the commissioner or commission to one for public integrity, given the broader current functions that are vested in the office.

It was considered that the Office for Public Integrity might appropriately be established as a separate entity and no longer report to the ICAC. That office would be empowered to assess all complaints and reports made in respect of public administration in the first instance and determine whether or not they should proceed to further consideration by the responsible authority. It is hoped that such an amendment may increase efficiencies to ensure that agencies are not required to assess matters deemed unnecessary for referral.

The committee also took the view that the confidentiality and publication provisions of the Independent Commissioner Against Corruption Act may benefit from amendment and propose that consideration be given to providing that certain disclosures cannot be prohibited by ICAC. This was, in particular, a concern for the committee in the context of persons managing employment or fiduciary obligations, and to provide for persons to disclose a summons to a close family member or a legal practitioner, medical practitioner or psychologist. These matters appeared to have the potential to address what was seen by the committee as posing a significant risk to mental health.

It was further considered appropriate to provide for ministers to make statements in the context of addressing issues of rumour, of supposition, circulating in respect of a minister's portfolio, and to clarify that the media may publish such statements or those made by the ICAC. The committee also sought to provide a mechanism allowing for persons to apply for authorisation to disclose, and for disclosed information to be published where it no longer has the potential to prejudice an investigation.

The committee was not supportive of provisions affecting permanent confidentiality obligations to be set aside solely at the discretion of the ICAC. It was proposed that the definition of corruption in public administration be amended to address, at least to some extent, concerns raised in respect of the wide net cast by the current definition, which captures in essence any offence committed in the course of, or connected with, the performance of duties as a public officer.

This, for example, could include a speeding offence. The committee considered that it may be appropriate that the catch-all approach of subsection 5(1)(c) of the ICAC Act be amended to refer to offences for which two or more years imprisonment may be imposed. It was also suggested that the definition of 'public officers' be given further consideration.

The committee has recommended that consideration be given to quite substantial amendments to the functions and powers of the office of the reviewer of the ICAC and Office for Public Integrity. It is proposed that the office be renamed the office of the inspector, and to significantly enhance the investigative powers conferred. The conferral of such powers is consistent with powers of equivalent officers in other Australian states. The committee was of the view that the work of the office should be one that is equally as proactive as it is reactive to complaints or reports made in respect of the actions of the officers over which it oversees operations.

The powers conferred upon the ICAC are significant. They should not be exercised other than under the oversight of a body vested with a wide range of tools at its disposal to ensure such powers are exercised appropriately. The committee was also of the view that consideration should be given to introducing measures to further enhance the independence of the office, particularly with regard to appointment, suspension or removal from office, and to provide for the office to report directly to parliament.

Both this committee and the Statutory Officers Committee are proposed to undertake a direct role in the appointment of the inspector. This proposal is unique. The capacity for the office to respond to requests from the committee to investigate matters has also been proposed as a matter for consideration and to ensure that, where requests are made, the office is appropriately funded to respond. Where matters are conferred upon the Ombudsman or Office for Public Integrity, pursuant to the committee's recommendations such functions would also appropriately be subject to the oversight of an inspector. The appointment of a deputy inspector is also proposed.

The committee noted that the Parliamentary Committees Act does not provide for it to investigate a matter relating to particular conduct. It was considered that in order for the committee to gain an understanding of wider policy issues arising from the performance of functions or exercise of powers under the ICAC Act, it would be appropriate for consideration to be given to conferring it with power to inquire into the processes, procedures or practices that the ICAC has applied in the course of an investigation.

Wider patterns may not be understood without understanding individual circumstances. The ICAC would be required to provide the committee with the information that it needs to complete the function. The committee remains aware that it is important to avoid becoming a de facto review body. However, the current limitations were considered not to provide for the committee to satisfy its responsibilities as set out otherwise in the Parliamentary Committees Act.

Recommendation 14 of the report recommends that consideration be given to the establishment of an integrity standards adviser for the purpose of providing integrity and ethics advice to members or their advisers and other designated senior public officers. It was proposed that such a role may contribute to potential recipients of advice taking a proactive approach in seeking to ensure that their behaviour meets the standards rightfully expected by the South Australian community.

Recommendation 15 of the report is likely to attract some comment. At present, the statements of principles as adopted by the former parliament have not been adopted by the current parliament. However, such principles, in any event, were not and would not, if currently adopted, be codes of conduct for the purposes of the ICAC Act. The committee was of the view that it is important for further consideration to be given to reform to ensure that the conduct of members is subject to an enforceable code. However, this needs to be balanced by the need to ensure the preservation of parliamentary privilege and to ensure that democratic processes and, in particular, robust debate must not be inhibited by such a code.

Of particular importance was to note that both ministers and members have the potential to be exposed to corruptive influences. The information they acquire in the course of their work has the potential to be used in a way that is adverse to the interests of the state and ultimately taxpayers. The introduction, or perhaps reintroduction, of a defined self-funded superannuation scheme, importantly with the potential for members to lose their entitlement to the benefit of the scheme in the event of a breach of post-separation obligations or if convicted of an offence defined as corruption in public administration in the ICAC Act or an equivalent offence elsewhere, was considered a potentially powerful anticorruption incentive.

A 10-year restriction on post-separation activities is recommended. This is a significantly more onerous restrictive period than is imposed in any other Australian jurisdiction and recognises its importance in the eyes of the committee. It is hoped that the proposal will trigger productive debate in respect of the conduct of members of this parliament.

Finally, the committee has recommended reform to provide that the Judicial Conduct Commissioner cannot have been an administrative decision-maker in the six-month period prior to appointment; nor can the office make such decisions during the period of appointment. The appointment of the ICAC to the role was not considered appropriate.

The committee received submissions and heard evidence in relation to a number of issues arising out of the operation of the Police Complaints and Discipline Act. As its name suggests, the act provides for the regulation of police conduct. However, the committee did not consider that its functions provide for it to make recommendations or findings in respect of its operation. The matters addressed were important and the committee has recommended that its functions be amended to provide for it to consider the operation of the act going forward. Perhaps at the time, should the recommendation be implemented, matters raised can be addressed.

It should be noted that although consideration of the functions of the Auditor-General was a matter set out in the terms of reference, the committee did not receive submissions or evidence that led to the making of any recommendations or findings in respect of the functions or powers of the office. That is not in any way to diminish its important role, and the committee thanks Mr Richardson for his contribution to the inquiry.

In brief, section 2 of the report sets out the functions and powers of South Australia's public integrity agencies, section 3 discusses the key issues noted in the submissions and evidence received, section 4 summarises the functions and powers of comparable interstate public integrity agencies and section 5 summarises the functions and powers of comparable interstate parliamentary committees and related entities. These matters contributed to the deliberations of the committee. Its recommendations and findings conclude the report.

In conclusion, the committee would like to thank its executive and research officer, Mr Ben Cranwell, who provided valuable assistance to the committee over the significant period of time during which this inquiry was conducted.

I would also like to thank the other members of the committee for their contributions to the inquiry: firstly, the former presiding member, the Hon. Dennis Hood, whose position I was elected to following his resignation from the committee in September of this year; the Hon. David Ridgway; the Hon. Justin Hanson; and, from the other place, the member for West Torrens, the Hon. Tom Koutsantonis; the member for Kavel, Mr Dan Cregan; the member for Davenport, Mr Steve Murray; and a former member of the committee, the member for Narungga, Mr Fraser Ellis. Each member contributed to deliberations of the committee. I commend the report to the council.

Debate adjourned on motion of Hon. J.E. Hanson.

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