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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-08-25 Daily Xml
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Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Bill

Introduction and First Reading

The Hon. F. PANGALLO (16:39): Obtained leave and introduced a bill for an act to amend the Independent Commissioner Against Corruption Act 2012 and to make related amendments to other acts to implement recommendations contained in the Report of the Crime and Public Integrity Policy Committee into Matters of Public Integrity in South Australia. Read a first time.

Second Reading

The Hon. F. PANGALLO (16:40): I move:

That this bill be now read a second time.

I rise today to introduce this bill which amends the Independent Commissioner Against Corruption Act 2012, based on the recommendations made by the Crime and Public Integrity Policy Committee report, which I tabled in this place last December.

The members of that committee had anticipated that the Attorney-General, the Hon. Vickie Chapman, would abide by her statutory obligation to respond to that important report by a parliamentary standing committee within the designated four months. That almost 10 months have passed since it was delivered and the Attorney-General, the state's top-ranked legal official, has not uttered a word on it is a mystery only she can answer. It is surprising, nonetheless, because when I met with the Hon. Ms Chapman earlier this year on another matter, she indicated, and I welcomed her intent, that she would introduce her own amendments to the ICAC Act. All I have heard since is deafening silence.

In 2019, the Crime and Public Integrity Policy Committee commenced its inquiry into matters of public integrity, anticorruption measures and the interrelationships with integrity and anticorruption bodies. It received 16 submissions from individuals and organisations, including SAPOL, ICAC, the Auditor-General and the Ombudsman. The final report contained 17 recommendations and was tabled in December 2020. Many of these recommendations formed the basis of the amendments contained in my bill. Among the major changes I am proposing are:

That ICAC be known as the Independent Commission Against Corruption—that is, removing the title of commissioner—and that its powers and responsibilities be revised to handle only matters of serious and systemic corruption.

That responsibility for misconduct and maladministration be conferred to the Ombudsman.

That a separate and independent office of public integrity be established.

The establishment of an office of inspector, replacing the reviewer, with enhanced powers of review and oversight of ICAC and the OPI, reporting directly to parliament.

Building effective protections for persons facing investigation by the commission.

Better managing public statements and reporting to protect people from reputational damage and harm.

That there be provisions, including retrospectivity, for the inspector to recommend remedies, including compensation, where individuals have suffered severe, undue prejudice to their reputations.

This reform bill is necessary and timely. There has been some disquiet about ICAC expressed from the highest echelons of the legal profession. This has been assembled with the support of members from all sides of parliament.

The Hon. Bruce Lander was appointed the integrity agency's first commissioner and given the difficult task of building it from scratch in 2013 without an instruction manual, with a range of differing state regimes with their own inherent problems and with no national ICAC body. It was a work in progress, and it was never going to be a perfect instrument. However, after eight years of substantial expenditure, secret investigations, underwhelming results, controversy and criticism, an examination of its performance by its creator, the state parliament, now seems appropriate.

The changes proposed in this bill, most of which I will outline shortly, are designed to make ICAC a more streamlined and more effective corruption-busting tool and, importantly, a more accountable integrity body than it has been.

ICAC's legislated curtain of secrecy has effectively shielded its conduct and operations from proper scrutiny by the parliament. It seems to be accountable to no-one, let alone parliament. Had it not been for the select committee into reputational harm and damage caused by ICAC investigations, which I moved and chair, we, the public, would still be in the dark about some of its more spectacular failures, questionable tactics and powers exerted on hapless and, in some cases, innocent individuals in the public sector.

Anticorruption and integrity agencies do have a critical and crucial role to play in our society, because serious corruption and misconduct in our public sector must not be allowed to flourish unchecked. As I have said, corruption is the mortar holding up society's walls, it is the oil that greases the wheel, and it is everywhere—in the highest and most unexpected places. Sunshine is the best disinfectant, and we have a responsibility in this place to ensure that the sun shines brightly.

These agencies have enormous powers bestowed upon them, but it is an expectation that they must also always use these powers responsibly and within the law. Those in their sights should expect to receive the fairness of natural justice and due process, as accorded to others in our community. If they have done wrong, they deserve the appropriate punishment after proper judicial processes have been followed.

The High Court will soon be the final arbiter on allegations of abuse of power by ICAC and the legitimacy of the current ICAC Act when it hears an appeal by Mount Gambier MP, Mr Troy Bell. Non-judicial investigations with coercive authority have been likened to star chambers. As Queen's Council and former Federal Court judge Peter Graham points out, inquiries, commissions against corruption and royal commissions are poor relations of adversarial court proceedings that endeavour to guarantee fairness.

As I have pointed out previously, anticorruption bodies have increasingly assumed that it is their role to determine guilt or innocence. They have extended their reach into prosecutions, into SAPOL and into jurisdictions of the Ombudsman. Most concerning is the number of cases where their targets were presumed and publicly outed as guilty from the outset.

Operation Bandicoot, involving police officers from Sturt Mantle, was one of ICAC's most high profile cases in 2014. We heard jaw-dropping prejudicial commentary on the day of the officers' arrest from Mr Lander, and then police commissioner Gary Burns, before any of the charges were even laid, let alone fully tested in court. Indeed, the charges against the various officers from Sturt Mantle were changed 19 times between 2014 and 2019, including during their trial. How can persons mount a proper defence when the narrative keeps shifting with little or no notice? This adds to the emotional and financial costs of these proceedings.

Not one of the charged officers in Bandicoot was found guilty of the charges. Many of the original charges laid were withdrawn. Of those that did proceed to court, not one was proved, yet the lives of these officers, their reputations and careers have been destroyed beyond repair. There has been no commensurate announcement of the eventual outcomes, that charges were dropped, that charges were not capable of being proved, or the lack of evidence against these poor, unsuspecting, diligent police officers, who were absolutely vilified.

I have heard their stories of their treatment, and they are harrowing and most disturbing. Distressingly, some of those SAPOL Anti-Corruption Branch officers involved in the investigation still refuse to accept the acquittals and not guilty verdicts. The internal witch-hunt continues against two, resulting in enormous mental anguish for them. The same applies for the other officers, who simply want to resume the jobs they loved doing.

I, for one, am worried for them and their welfare, yet similar concerns are not forthcoming from SAPOL nor ICAC. SAPOL and ICAC still want their pound of flesh to justify the tens of millions of dollars they wasted on what should have been an internal disciplinary matter about proper recordkeeping, not criminal conduct and not abuse of public office.

The subsequent prosecution and trials were a farce. The behaviour of SAPOL's Anti-Corruption Branch was abominable and unlawful. It withheld vital evidence which showed far worse conduct taking place in other sections of the Sturt local service area, yet no action was taken. Searches were undertaken without the required general search warrant being executed.

When ICAC closed its book on the case after the arrests the director of investigations at the time declared that the storm of publicity Operation Bandicoot generated had the beneficial effect of acting as a deterrent—in other words, scaring the bejesus out of police officers and public servants—yet they were still to prove their charges. Had it not been for my select committee, this appalling case of injustice, along with others we have heard, may have never come to light. This bill contains remedies and protections for such circumstances, but I will come back to them later.

Here is another glaring example of a disturbing guilty-until-proven-innocent attitude demonstrated by ICAC investigators. Mr Andrew Baker, the ICAC chief investigator in the matter involving former Renewal SA chief executive John Hanlon, wrote an email in September 2019 to a potential witness in Germany with the anticipation that they would provide evidence to support their belief. The email from Andrew Baker went something like this, and I quote, 'The matter we are investigating concerns what we believe'—

The PRESIDENT: The Hon. Mr Pangallo, I am reluctant to interrupt you, but just be careful in the way you relay evidence that may have been given to the select committee, because the current standing orders are very specific about that.

The Hon. F. PANGALLO: This has not been given to the select committee, Mr President.

The PRESIDENT: Just be careful that you do not get into that territory, and—

The Hon. F. PANGALLO: No, I have not, and I do not intend to get into that territory.

The PRESIDENT: Okay, proceed, thank you.

The Hon. F. PANGALLO: I will go back. The ICAC chief investigator in the matter involving former Renewal SA chief executive John Hanlon wrote an email in September 2019 to a potential witness in Germany with the anticipation that they would provide evidence to support their belief. The email from Andrew Baker went something like this, and I quote:

The matter we are investigating concerns what we believe is a fraudulent trip conducted by John Hanlon.

By 'what we believe', Mr Baker was asserting it to be true, even before any evidence had been found and any of ICAC's claims had been tested in court. I do not know if Mr Baker worked as a senior detective in SAPOL or whether he was one at all or if he had any legal or investigative training prior to his assuming his senior ICAC role, but you would not expect to see such sloppy language coming from a former policeman in correspondence to a total stranger he has not met or who had no knowledge of Mr Hanlon or ICAC itself.

The public stain of public allegation or assertion of corruption from a body like ICAC is one of the most severe penalties you can inflict on an innocent person. It is also the most difficult, if not impossible, to remove. Just ask Mr Hanlon or any one of those eight police officers from Sturt Mantle or others that have been acquitted of corruption charges who have been unable to rebuild their shattered reputations, like Dr Jurgen Michaelis, who was in charge of a lucrative investment unit for the state government only for it to collapse after a vexatious and ultimately false complaint to ICAC. It cost him and our state dearly—more than $300 million in lost opportunities. Dr Michaelis said it could have been avoided in a matter of minutes if the previous commissioner, Mr Lander, had just taken the time to listen to him.

There have been those who have taken their lives and attempted suicide because of ICAC investigations. One was Chief Superintendent Doug Barr, a highly decorated and respected senior police officer who for some time had no idea of what wrong he was alleged to have committed. The stress on him and his family was enormous. It proved too much and, sadly, he took his life awaiting a prolonged outcome from Mr Lander. His death was conveniently hushed up. Chief Superintendent Barr's distinguished career involving notorious crimes, including the brutal attack on two backpackers at Salt Creek in 2017, went unacknowledged publicly as it deserved.

A few weeks later, the family received ICAC's final report. In a cruel twist of timing, it arrived on their doorstep on Christmas Eve, their first without him. It cleared him of any wrongdoing. The accusation was merely a supposed conflict of interest, which could have been addressed internally. The report was dated 10 October, eight days before Chief Superintendent Barr took his life. Had he received it earlier perhaps the outcome might have been different. There were no condolences attached for their distressing loss.

Therefore, reparation and remedies must be included in this bill, so too oversight. One of the most significant changes is the expansion of the role of the reviewer, to be known as the Office of the Inspector. The inspector will be appointed by the Governor after qualified candidates are submitted by the Attorney-General for consideration by the Statutory Officers Committee. There will also be a deputy inspector to assist in the execution of the inspector's duties.

It was the Crime and Public Integrity Policy Committee's view that the work of the inspectorate should be proactive as well as reactive to complaints or reports of the actions of the officers it has oversight over. The inspector will conduct annual reviews examining the operations of the Office of Public Integrity and the Independent Commission Against Corruption, investigate complaints and conduct investigations on the inspector's own motion or at the request of the Attorney-General or the Crime and Public Integrity Policy Committee.

Reports on reviews must be provided directly to the parliament. The inspector will have sweeping powers to carry out their reviews, consistent with similar agencies in other states. The inspector will ensure that the significant authorities given to ICAC and the OPI are exercised within the law. A review will mean any matter arising from the conduct of the commission, the commissioner, the deputy commissioner and their employees. There are also provisions for the inspector to recommend remedies, including compensation, where individuals have suffered severe undue prejudice to their reputations.

The current reviewer's scope for investigating complaints against ICAC and the OPI is extremely limited. Currently, it comprises the Hon. John Sulan and an office assistant and is therefore under-resourced to undertake complex investigations. This new office would address the concerns of those who maintain there has not been proper accountability and oversight of ICAC from its operations, which has been highlighted in evidence heard by the select committee into reputational harm and damage caused by ICAC investigations or other matters that have been brought to my attention. I call this evidence that has been ignored wilful blindness, and something needs to be addressed here. Something is rotten, and it needs to be attended to.

Furthermore, this bill makes the Office of Public Integrity a separate entity that will no longer report to ICAC. Its role will be to receive and assess complaints about public administration from the public, as well as assess reports about corruption, misconduct and maladministration. Matters of serious corruption would be referred to the ICAC, while others are forwarded to inquiry agencies like SAPOL, the Ombudsman or the Auditor-General. An annual report must be provided to the parliament before 30 September each year.

With extraordinary powers at its disposal, the commission's focus will now need to be on far more serious corruption. Presently, the bar is set so low that even innocent mistakes in public administration—something as trifling as a speeding offence—can be viewed as corrupt or an abuse of public office.

At a recent meeting the Crime and Public Integrity Policy Committee had with the current ICAC commissioner, the Hon. Ann Vanstone QC indicated that the commission would concentrate on corruption cases and that she would personally oversee briefs to the Director of Public Prosecutions. She is a highly skilled prosecutor.

One of the more contentious issues, as supported by evidence provided to the Crime and Public Integrity Policy Committee, has been ICAC's direct involvement with the Office of the DPP and in the laying of charges. I have spoken with present and former MPs who took part in the original debate on the ICAC Act in 2012, and it remains their view that parliament had never intended for ICAC to bypass police when it came to laying charges. Referring matters directly to the DPP will not be permitted in this bill. The ICAC commissioner will be required to prepare briefs for the police.

The bill contains important protections on the disclosure of an investigation. Coupled with the enormous stress an ICAC investigation presents to all concerned, including those in the workplace who may not be the subject of the investigation, the prohibition of disclosure, which may or may not have a basis in fact, carries dire consequences, is draconian and has a detrimental effect on the mental health of individuals to the point where, as I have just outlined, there have tragically been suicides and attempted suicides.

While the bill ensures strict confidentiality surrounding an investigation remain in place, persons can seek exemptions and authorisations from the ICAC commissioner or director of OPI to disclose a summons to close family members, legal practitioners, doctors and psychologists. They will not commit an offence if it has been authorised or anything that is said in any proceedings to which parliamentary privilege applies. However, any public statements made by the ICAC, OPI and the minister must not:

disclose that an investigation is about to start or is ongoing;

disclose that persons have been referred for further investigation and potential prosecution; or

refer to any matter related to an investigation that is current and ongoing and not be in the form of a report on an investigation whether it is ongoing or completed.

These safeguards are designed to prevent damaging public statements that would suggest criminal or civil liability without any charges being laid. The reforms I am proposing are not intended to weaken the role of our integrity agencies. On the contrary, they are carefully considered amendments based on the recommendations made by the Crime and Public Integrity Policy Committee, provided to the Attorney-General some 10 months ago. They are intended to improve the performance and standing of the integrity agencies in the community and give the public confidence and trust in them.

I would like to acknowledge the input and assistance from my colleagues on the Crime and Public Integrity Policy Committee: the Hon. Tom Koutsantonis, the Hon. Justin Hanson, Mr Dan Cregan MP, Mr Steve Murray MP, and former members the Hon. Dennis Hood and the Hon. David Ridgway. I would also like to acknowledge members of the select committee on ICAC harm and reputational damage: the Hon. Russell Wortley, the Hon. Justin Hanson, the Hon. Tammy Franks, the Hon. Nicola Centofanti, the Hon. David Ridgway, and we welcome a new member, the Hon. Heidi Girolamo.

I commend the bill to the chamber and give notice that I will be putting this bill to a vote on 22 September.

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

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