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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-12-01 Daily Xml
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Select Committee on Damage, Harm or Adverse Outcomes Resulting from ICAC Investigations

The Hon. F. PANGALLO (16:59): I move:

That the report of the select committee be noted.

On 2 December 2020, the Legislative Council resolved on a motion I moved to conduct this inquiry following submissions and representations received from several individuals subjected to investigations by ICAC, OPI or SAPOL, who were later found to either not have a case to answer or had charges withdrawn or were found not guilty or claim that they had been disadvantaged and denied due process by these integrity agencies.

The terms of reference excluded the committee from inquiring into current investigations, prosecutions or referrals for consideration in respect of a potential prosecution. The committee intended not to interfere with any matters before the courts. The committee heard evidence from 36 witnesses involving the following ICAC, SAPOL investigations into alleged abuse of public office by public officers: Operation Bandicoot, Bio Innovation SA, Renewal SA, the Department of Planning, Transport and Infrastructure, and SAPOL Recruit 313.

Their complaints and submissions received centred on the procedure of the investigations, the prosecutions and the subsequent significant irreparable damage caused to their reputations by their treatment by ICAC and ensuing salacious publicity and media scrutiny. They also felt that, as mud sticks, there was no recourse available to them to restore their standing in the community and professional status. Some were also severely financially disadvantaged in defending themselves and are seeking reimbursement of their costs. All had reported strain on personal relationships and to their mental health and general wellbeing.

While the current and previous ICAC commissioners have argued that these types of consequences also do inevitably occur in non-ICAC matters that find their way to the courts, the often prolonged experience and stain of an ICAC investigation is far more potent and is next to impossible to remove, whether it eventuates in a prosecution or a conviction. As the playwright Shelley succinctly put it in The Cenci, 'The breath of accusation kills an innocent name, and leaves for lame acquittal the poor life, which is a mask without it.'

That said, I am not for a minute suggesting integrity bodies with broad powers like an ICAC are not needed. Its primary function is to keep public officers acting within the accepted standards of the code of conduct within which they operate and to stamp out serious and systemic corruption in public administration. To do this, ICAC has been entrusted with significant coercive powers to carry out its functions. It also has a role in raising public awareness and education about corruption and, to that end, it continues to have some tangible effect.

However, the extraordinary powers bestowed on it should not also be an almighty battering ram for crushing ordinary misdemeanours, nor should those powers be abused in the overzealous and costly pursuit of individuals to achieve an outcome. While we should acknowledge some reputational damage is perhaps inevitable, the challenge is to find the balance between the right to reputational protection without diverting from the intended purpose of the legislation.

Why was this inquiry necessary at all? The answer to that is quite simple. Now was the time to review ICAC's operations, its performance, its failures and to hear from those who had a story to tell of their shocking experiences. This would not have been possible or even contemplated previously because ICAC was shielded from this type of scrutiny due to the secrecy provisions that had been enacted in its legislation, drawn up nearly 10 years ago. At the time, it is doubtful that politicians in this place would have been able to foresee the unintended consequences which have since surfaced.

My interest in reputational damage arising from ICAC or other integrity agencies was initially sparked by an article I read in The Advertiser by Andrew Dowdell on 28 September 2018. It concerned the SA Museum's former chief Aboriginal archaeologist, Dr Keryn Walsh. She was subjected to a terrible ordeal after being wrongly accused of misconduct by some colleagues. During a period of suspension, Dr Walsh was exiled. She could not do any research or attend conferences or public presentations. She was banned from any state government building. She was deemed guilty before any finding was made. Despite being cleared, she lost the job she loved. She lost her fine reputation, and it damaged her mentally. And the crime she was accused of committing for all this punishment? A policy breach that was found to be baseless.

The matter which caused me the most concern and was the catalyst for this inquiry was Operation Bandicoot, ICAC's first major investigation undertaken in concert with SAPOL's Anti-Corruption Branch in 2014. Eight police officers from Sturt Mantle, a specialist unit dealing with major drug crime, and thus collected and recorded property seized from crime scenes, were charged with criminal conduct—theft and abuse of public office. Public statements made on the day of their arrest by the then police commissioner, Gary Burns, and the former ICAC, Mr Bruce Lander QC, could only lead a reasonable person to believe that this was an organised gang of Fagins in uniform.

The presumption of innocence, a cornerstone of our justice system, was lost in the fanfare and media coverage of those public statements over the next days, and continued for more than five years. Their careers were effectively over from that moment, regardless of any future outcome. For a police officer their integrity is paramount. To lose it is devastating to all facets of their life. Once broken, integrity, like trust, is like a dropped glass ball: unable to be glued back together.

After more than 5½ torturous years being dragged through the system, they were all found not guilty of stealing anything because the evidence either did not exist or simply did not stack up. As it transpired, the allegations were nothing more than the accurate and timely recording of property items at Sturt Mantle.

The committee heard from the current police commissioner, Grant Stevens, and others from the Anti-Corruption Branch and ICAC, that the justification for the investigation was based on suspicions aroused from whistleblowers, and that there was an intent to steal items still housed at the police station, based on covert audio recordings of some of the officers making colourful remarks—mind-readers perhaps.

The President of the Police Association of South Australia Mark Carroll described the comments as the typical black humour you would often hear in workplaces—and haven't we all been guilty of that at some point in our working lives; a sarcastic crack or two of banter to break the monotony? But does it constitute committing a crime or amount to intending to commit a crime? What is arguable is that SAPOL may have been right in at least having a look. The real question was whether it was sinister enough to warrant the huge and costly criminal exercise that was rolled out, or was it something more suited to an internal disciplinary action?

The committee heard evidence that both the criminal investigation and subsequent prosecution were strewn with errors, some quite comical. Respected criminal barrister Michael Abbott QC, who represented one of the Mantle officers, gave the investigation a score of zero out of 10.

Witnesses also raised concerns about the proper and timely disclosure of vital documents and video evidence, along with the validity of an ad hoc audit, or search, of the Mantle office in support of the criminal investigation without the appropriate general search warrant required, and failure by the ACB to follow proper procedures in conducting two targeted integrity tests at fake crime scenes used to attempt to gather incriminating evidence on the Mantle officers who attended. One of those charged had not even attended the two integrity tests.

The committee heard from Sergeant Steve Hammond, of the Audit and Risk Management Section (ARMS), about his audit on the Sturt LSA in which his team found worse breaches of drug and property management in other sections of the police station. It seems it was also a common occurrence and problem elsewhere. Sergeant Hammond said his audit was triggered as part of the ACB criminal investigation, although this was later rejected by Commissioner Stevens who had authorised the audit days after the arrests.

Sergeant Hammond was particularly concerned he had been asked by the ACB to search for particular items when it was known that ARMS did not have officers with general search warrant authority. ARMS had rifled through the desks, personal belongings and lockers of officers. The ACB only executed a general search warrant after the search had been completed. One major concern raised with the committee was that general search warrants can be and have been abused by SAPOL and ICAC.

South Australia is the only state to have general search warrants and one of the few places in the world to have these arbitrary powers, considered by many law reform groups as a violation of common law rights to individuals' privacy. South Australia was singled out by the High Court in News Corps' appeal on the raid by Federal Police on the home of journalist Annika Smethurst in 2019, emphasising any abuse of this power ignores the common law principle that an individual's home is inviolable.

There continues to be much debate surrounding these warrants and whether they should be abolished in line with other jurisdictions. Therefore, one of the recommendations by the committee is that the Crime and Public Integrity Policy Committee review section 67 of the Summary Offences Act and section 31 of the ICAC Act to consider reforms to the application and issuing of general search warrants and to also consider introduction of contestable search warrants. The Crime and Public Integrity Policy Committee will also be asked to review the Criminal Investigation (Covert Operations) Act to consider strengthening the approval process for undercover operations and reduce the risk of breaches of the act.

Witnesses from Sturt Mantle gave harrowing and tearful accounts of the impact that the lengthy ordeal has had and continues to have on their lives, their relationships, their health and, importantly, their tarnished careers and believe they could not now win positions or promotions based on merit. The head of Mantle at the time, Senior Sergeant Ian Mott, has now retired from SAPOL after a long and distinguished career in which he investigated many major crimes. Understandably, after being found not guilty and acquitted of the charges levelled against him, he remains embittered.

He was courageous enough to allow his in-camera evidence to be made public when the ICAC Amendment Bill was going through parliament recently because he felt urgent reform was necessary to avoid similar miscarriages of justice. Sergeant Mott displayed admirable leadership qualities to his young team throughout the process and he continues to do so, offering his support when needed—and that is often. He vows to continue to fight to get the truth out about what happened to them. Physically, Ian Mott has an imposing physical appearance, yet behind that facade lies a broken spirit. He is also suffering. He could not hold back tears as he told the committee he has PTSD and needs to see a psychiatrist regularly.

He said SAPOL destroyed his life and he believes it was instrumental in the death of his mother. He was particularly scathing of the ACB officers involved in the investigation and the methods in the investigation itself. He defended his team, describing them as the best he had ever worked with at Mantle and said that he emphatically trusted their integrity.

We heard similar stories of distress from his colleagues in camera, some of whom said they would not recommend a career in SAPOL and their passion for policing had been all but extinguished. One of the Mantle officers paid their own legal bills. It amounts to close to a million dollars. Their matter still has not been finalised because SAPOL is intent on getting its pound of flesh through internal disciplinary action—and for what?

On 24 September 2021, Commissioner Stevens attended the committee for the first time and publicly read a selection of conversations from the listening device transcripts and outlined the details of the complaint made by the whistleblower that had not previously been made public. He also listed the items that were conveyed from the integrity test sites and later located around the Sturt Mantle office and in one of the police officer's vehicles. He did not mention the ones the ACB had overlooked that were still at the locations of the integrity tests, or items in their possession that were not even booked on time.

The committee was concerned that, in his prepared statement, the commissioner did not also take the opportunity to publicly acknowledge that all the prosecutions failed and they were found not guilty. The committee notes that after the commissioner's public evidence, he sent an email to all SAPOL members, alerting them to his evidence and reiterating his support for the Operation Bandicoot investigators and the investigation itself—but no mention of the welfare of the innocent Mantle officers.

The committee received communication that this caused several of the Sturt Mantle members to experience further psychological damage. The commissioner told the committee he sent the email in consideration of the safety and wellbeing of the Operation Bandicoot investigators who have suffered reputational damage because of the criticism arising from the failed prosecution and the scope of the committee.

Mr Carroll told the committee the commissioner's noting of his appearance before the committee to all SAPOL members served to magnify the psychological and reputational damage of the Sturt Mantle officers who are trying to rebuild their lives and reputations after the failed prosecutions.

Judge Adam Kimber told the committee that the acquitted Mantle officers now have the right to be considered innocent of those charges—something Commissioner Stevens and his cohort still find difficulty in acknowledging publicly. The Police Association is still seeking more than $2 million reimbursement in legal costs it expended defending some of the Mantle officers, and is yet to get a response from a request made to the Attorney-General through the Crown Solicitor's Office two years ago.

Despite the spin Commissioner Stevens tried to put on it, Operation Bandicoot is one of SAPOL's and ICAC's lowest points. The committee recommends that the office of the independent inspector investigates and considers making recommendations to the Attorney-General that the parties, the subject of adverse outcomes outlined in this report, be paid compensation and reimbursement of their legal costs and other expenses.

Further, the committee recommends that parliament consider amendments to the ICAC Act that prevent joint operations and investigations between SAPOL and ICAC when members of SAPOL are the subject of the investigations. Additionally, the committee recommends that parliament consider the appropriateness of SAPOL investigating its own members for misconduct, maladministration and disciplinary matters.

One of the most disturbing submissions the committee heard came from Mr Ian Lawton and his associate, retired barrister Mr Michael Fuller, about a fraud matter given a police incident report, only for it to be inexplicably dropped by a detective in SAPOL's Commercial and Electronic Crime Branch on the grounds that the Office of the DPP did not believe there was a reasonable prospect of a conviction and that the matter belonged in the civil jurisdiction.

This account was disputed by Mr Lawton through his lawyer at the time, now District Court Judge Joana Fuller, who had spent a considerable amount of time analysing the case before coming to her determination that it certainly was a prima facie criminal matter in a report given to another SAPOL detective in the CECB, who had shown it to the DPP's top fraud investigator, Mr Gary Phillips.

This then led to a series of formal complaints alleging corrupt conduct. These were lodged with the Anti-Corruption Branch, the Commissioner of Police, OPI, ICAC and the ICAC reviewer, and in desperation to the then police minister, the Hon. Corey Wingard, in which both Mr Lawton and Mr Fuller alleged that the misconduct in handling their complaints was in breach of the Police Complaints and Discipline Act and other related acts like the Public Sector (Honesty and Accountability) Act. If proven, breaches carry significant penalties.

Here was a case where police were investigating senior police, if they did indeed do the required investigation. Mr Fuller states that they were brushed off, there was no case to answer, 'Go away.' Something about all this just does not ring true. Truth may well be the biggest casualty here. Mr Lawton says he did not get due process from all those integrity agencies and that he continues to suffer significant financial loss because of the alleged fraud. If proven it runs into the millions of dollars. That is not chicken feed.

Just think about it for a moment: there are ratbags who will get collared quickly for robbing a few bucks from a servo or a pub, but a clever crook using a pen to steal gets away with it. White-collar crime is treated differently by law enforcement, probably because of a lack of expertise in that area and resourcing. No comfort for Mr Lawton however, he is now on an age pension dealing with prostate cancer and is impecunious. He has no resources to even contemplate a civil suit but that is unnecessary because this should be a criminal action based on a credible learned opinion.

Mr Lawton's dilemma and frustration has attracted some media attention, albeit only interstate in Broken Hill where his family hails. I seek leave to table an article written by investigative journalist, Jack Marx, and published in the Barrier Daily Truth on 17 November 2021.

Leave granted.

The Hon. F. PANGALLO: Mr Lawton and Mr Fuller provided the committee with a sizeable volume of compelling supporting documents including all their communications with SAPOL, OPI, ICAC, the ICAC reviewer and Mr Wingard in backing up their complaints and suspicions of lies and cover up. I have read it all and, as the old saying goes, where there is a billowing smoke, there must be a raging fire hidden somewhere. The problem or obstacle for the committee was trying to get there, as I will explain shortly.

The committee summonsed Judge Fuller, SAPOL's Inspector Tim Curtis, Chief Inspector Tom Osborn, Detective Brevet Sergeant Roberto Della Sala and Mr Gary Phillips from the Office of the Director of Public Prosecutions. This inquiry was frustrated by most of the SAPOL witnesses involved, including Commissioner Stevens, in their refusal to answer the committee's questions, based on the legal advice that it was outside of the scope of the committee's terms of reference.

The committee's concern was further piqued when a witness from the DPP provided an email dated 28 June 2018 that may serve to substantiate the concerns of Mr Lawton and Mr Fuller. In his evidence, Detective Brevet Sergeant Della Sala told the committee he provided an entire brief to the DPP and received an informal advice there was no reasonable prospect of conviction, whereas Mr Phillips told the committee he did not receive a full brief, only the cover letter setting out the evidence prepared by Judge Joana Fuller, at the time a barrister. He provided the committee with a copy of his informal advice back to the initial SAPOL detective who approached him, Detective Bolingbroke, which stated, and I quote:

I will work on the assumption the summary provided by Joana is an accurate reflection of the documents. Assuming it is, there would be a prima facie case of deception by omission—the failure to disclose the oral agreement compounded by the amending agreement with no notice. It will be a difficult matter due to the commercial structures but that should never be a bar to further looking at it in my opinion. Keep me in the loop. It might be that I ask to take it on as a file, alongside my trial commitments.

As the committee understood it, this contradiction was the basis for the original complaint, and we sought to inquire into the considerations of that complaint process. Unfortunately, the committee was unable to obtain a further balanced view on this discovery because of the refusal to answer questions by SAPOL witnesses.

Judge Fuller, an extremely credible witness, told the committee she was of the view police did not investigate the case despite a police incident report being raised. The committee was also quite concerned to hear, in her evidence, that Judge Fuller was of the view that SAPOL's detective Della Sala had misled her and had been untruthful in responses to the matters she had raised after she had again consulted with Mr Phillips from the Office of the DPP. Judge Fuller explained that she is still of the view that there is a prima facie case for fraud, that there was a case to answer based on the evidence she had reviewed, and was satisfied, based on the high bar she had set herself in assessing the merits, that it would produce, in the mind of a reasonable person, a conclusion of guilt beyond reasonable doubt.

Several requests made by the committee to SAPOL to produce relevant documents and entries in the internal investigation section's complaint management system, which are also accessible by OPI and ICAC, were refused. These would have greatly assisted in shining a very bright light on Mr Lawton's and Mr Fuller's claims but have been flatly rejected on the grounds they fell outside the committee's terms of reference. Furthermore, the matter was covered extensively when the Legislative Council voted for the select committee in 2020, so SAPOL had ample advance notice the matter would be included in this inquiry.

On 12 November, Commissioner Stevens appeared as a hostile witness on his second attendance before the committee, where he was invited to provide testimony on his involvement in this matter. Mr Stevens refused to answer any questions; he refused to take any on notice. He cited taking legal advice from legal counsel, Frances Nelson QC, that the matter was outside of the committee's terms of reference. Curiously, Ms Nelson has been the head of the statutory office of the Parole Board since 1983 and, as such, has interaction in granting or denying parole to prisoners who have been prosecuted by her client, SAPOL, and the Office of the DPP.

She also recently represented the Attorney-General, the Hon. Vickie Chapman, at the parliamentary inquiry into the proposed Smith Bay deepwater port on Kangaroo Island while being on the government payroll as the head of the Parole Board and barrister to SAPOL. I will note that in October the Remuneration Tribunal awarded the position as presiding member a 45 per cent pay rise, going from $80,000 per annum to a whopping $210,609. Mr Stevens appeared infuriated when I questioned whether this was appropriate considering the circumstances and that there may be a perception of a conflict of interest.

I do hold Ms Nelson in the highest regard and I do not suggest she does not carry out her duties as the Parole Board chief with integrity and independence, as she has done for so many years. However, the question is relevant if SAPOL continues to use Ms Nelson as its go-to silk. Furthermore, when SAPOL has a phalanx of lawyers in its legal department, why is it not relying on their advice or perhaps going to the Crown Solicitor for advice instead of expending taxpayers' dollars on a QC? Why not brief a barrister without these potential conflicts?

As Chair, I still felt it was judicious to provide Mr Stevens with a list of more than 40 questions to consider. No responses have been received to date. Mr Stevens did reiterate that SAPOL adheres to the highest of standards. One of the more relevant questions I wanted to put to him was how he could sign off on a section 16 determination for a management resolution of Mr Lawton's complaint when Mr Lawton had emphatically insisted he had not been contacted or engaged in the process by the appointed resolution officer, ostensibly appointed by the commissioner himself. This is a mandated requirement of the PCDA and the PCDR.

In his submission to the committee, the former deputy ICAC and director of OPI, Mr Michael Riches, indicated Mr Lawton's complaint was assessed by police as raising potential misconduct and maladministration and was dealt with by management resolution. He said the assessment was reviewed and accepted by OPI and attempts to conciliate the complaint with Mr Lawton were unsuccessful. How could Mr Riches possibly come to that conclusion if he was not able to access those complaint management system entries? Easy answers, of course, would be found in that complaint management system that they just do not want to reveal. This lack of transparency does not engender trust.

Interestingly, in May 2019, around the same time Mr Lawton's complaints were under assessment, the then ICAC, Mr Bruce Lander QC, in his 12-month review of the PCDA, wanted the police commissioner stripped of his powers to dismiss complaints against officers by repealing or amending section 15 of the PCDA, saying, if exercised, these powers would frustrate both a IIS assessment and any OPI substituted assessment, even if it had been assessed by IIS as raising a potential issue of corruption, misconduct or maladministration. The OPI is also required to review every assessment undertaken by IIS. Here is what Mr Lander had to say about this:

The documenting of the assessment process is crucial. Item 3 in Schedule 2 of the PCDR provides the information that should be included in the Complaint Management System by IIS for the assessment of complaints and reports. Its purpose is to assist the OPI to review the assessment by having access to the information relied upon and the reasons for the decision and the recommended action. The Regulations also provide for the officer in charge of IIS to record if the officer in charge is in agreement with the determination. IIS assessments do not comply with the Regulations. In other words, SA Police does not comply with the Regulations.

Mr Lander says the issue has been raised several times, but the practice of noncompliance continues. His view was that SAPOL should simply comply with the regulations. Management resolutions are used by SAPOL to address most complaints received about poor behaviour, poor service delivery or other minor management issues. Remember that Mr Lawton's and Mr Fuller's complaints were not about minor issues but of corruption, misconduct and maladministration. Here is Mr Lander again:

SA Police are sometimes using Management Resolution in circumstances where conduct has been assessed as not raising a potential issue of corruption, misconduct, or maladministration. The OPI has observed in such instances where the Resolution Officer will speak to the complainant but not the designated officer, presumably as there is no conduct to raise with him or her. This approach does not comply with Section 18 of the PCDA and supports my view that the purpose of Management resolution is to address disciplinary issues under the PCDA.

In Mr Lawton's case, we will never know who the resolution officer—that was Chief Superintendent Osborn—spoke with, but certainly it was not with Mr Lawton. Mr Lander goes on to say:

The OPI has observed that Management resolution during or following an investigation does not appear to be conducted to the same standard as Management Resolution following assessment. Issues identified have included Resolution Officers determining to take no further action in the Management resolution process despite the allegations being substantiated during the investigation.

He adds:

The OPI has identified many instances where Resolution Officers at various stages of Management resolution process inappropriately conclude matters by way of no action.

Interestingly, in 2015 Mr Lander released his 'Review of legislative schemes: the oversight of management of complaints about police', which led to the creation of the PCDA. One of the 29 recommendations was that the OPI should assess complaints and reports where the conduct involved a member of the internal investigation section and the conduct involved an officer above the rank of superintendent.

This recommendation was never included in that act and it may be that it now needs to be reconsidered. Mr Lander suggested amending sections of the PCDA. A review of the act by the Crime and Public Integrity Policy Committee is supported by this committee and is contained as part of our recommendations.

As for Mr Lawton and Mr Fuller, the committee recommends a judicial inquiry is established, appointing an interstate retired judicial officer or similar, with interstate counsel assisting, to inquire into the handling of the PIR18/E1725 complaint and the handling of police complaints and compliance with the PCDA in general. The appointments would be designed to avoid any perceived or actual conflicts of interest.

In regard to Mr Fuller, the father of Judge Joana Fuller, at the age of 81 he is a wily and still proficient and astute lawyer, who does not suffer fools gladly. He has assisted Mr Lawton's cause and as such has proven to be a real thorn in the side of SAPOL and ICAC in continuing to pursue this matter. However, things took a disturbing twist in October, when Mr Fuller received an unexpected visit from two Anti-Corruption Branch detectives, who said they were investigating a possible breach of the ICAC Act over a letter he had written almost two years earlier to Minister Wingard.

Police later informed him they had dropped the matter. But it concerned him enough to request another appearance before the committee. He told the committee he interpreted the visit as an attempt by SAPOL to intimidate him. Had he been charged, it was conceivable that this committee could no longer consider all the submissions received, as it would have fallen outside one of the terms of reference relating to current matters before ICAC. The committee is unable to establish who sanctioned the visit, as Commissioner Stevens refused to answer questions.

The committee experienced hostile behaviour from several SAPOL witnesses, including personal attacks on my integrity as presiding member by the Commissioner of Police, Mr Stevens, and the former ICAC, Mr Bruce Lander QC. It was vehemently put by both Mr Lander and Mr Stevens that I had demonstrated a perception of apprehended bias and that I should recuse myself. I make no apology for probing uncooperative and reluctant witnesses with robust questions. If I have ticked off some sacred cows, well so be it. As a journalist, I reported without fear or favour, and I shall apply that credo while I am here. We were just seeking truthful answers.

The committee highlights that a parliamentary inquiry is an integral feature of representative government, and the committee's purpose is to rigorously inquire into the damage, harm or adverse outcomes experienced by persons who have been the subject of investigations by the ICAC or prosecutions which follow. Further, any apprehension of bias within the committee is a moot point because, as Mr Lander helpfully pointed out to the committee at length, apprehended bias is problematic when it is attached to a decision-maker. This committee notes there are no decisions that can emanate from this committee's deliberation, only the making of a list of recommendations.

As already outlined, the committee was constantly frustrated in its requests for the production of documents and reports and to get answers to questions. Two police officers from SAPOL's Anti-Corruption Branch who were summonsed to give evidence withdrew at the last minute citing sickness. The committee chair requested production of sickness certificates from SAPOL. However, these have not been submitted.

This type of conduct where oaths are not taken or required is not isolated to this committee or to this parliament. Other parliamentary committees in South Australia, and elsewhere, have experienced uncooperative public servants, citizens and elected state and local government officials refusing to appear, refusing to answer questions, walking out on committees because they objected to difficult questions posed, making personal attacks on members and refusing to provide requested documents. Parliaments do have delegated powers to compel witnesses to attend hearings, compel evidence to be given and/or compel the production of relevant material.

There is a need for these matters to be addressed by the South Australian parliament as a priority. In South Australia, committees possess only authority and powers that are derived from the appointing house. Powers are delegated to committees via the Parliamentary Committees Act 1991. This act explicitly specifies that the powers of either house attach to committees and include the power to send for persons, papers and records. This power also exists under the Legislative Council standing order 429.

The South Australian Constitution Act 1934, section 9—Privileges of Parliament, states:

The Parliament may, by any Act, define the privileges, immunities, and powers to be held, enjoyed, and exercised by the Legislative Council and House of Assembly, and by the members thereof respectively: Provided that no such privileges, immunities, or powers shall exceed those held, enjoyed, and exercised on the twenty-fourth day of October, 1856, by the House of Commons, or the members thereof.

From my nearly four years in this Fifty-Fourth Parliament, I have observed a hesitancy from select and joint committees I have sat on to enforce powers of compliance that are bestowed on them. The British House of Commons usually applies the practices outlined by Erskine May when confronted with non-cooperative or recalcitrant witnesses. Again, I quote:

Any disorderly contumacious or disrespectful conduct in the presence of either House or a committee will constitute a contempt, which may be committed by strangers, parties or witnesses…any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of their duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as a contempt even though there is no precedent of the offence. (Erskine May 2004, p128)

In March 2009, Senator Mathias Cormann, in expressing the frustration of belligerence and noncompliance by public servants appearing before Senate committees, successfully moved a motion which ordered public officers to comply with any requests for information or a document from a commonwealth department or agency. It worked, and it should be the same here because we are vested with exactly the same powers of a Westminster parliament.

It is my view that various SAPOL officers were disrespectful of the committee, and therefore to this parliament, in their refusal to answer questions when they knew the answers; take questions on notice only to not provide answers; and failure to disclose many requested documents. The committee recommends that a report be made to the Legislative Council to consider including but limited to parliamentary privilege and ICAC, and its views that the actions or inaction of any witnesses were unsatisfactory in terms of the committee discharging the functions of the Legislative Council.

The committee also heard the heartbreaking evidence from the widow and son of Chief Superintendent Doug Barr—Debbie and Christopher. Mr Barr took his life in 2019 because of the mental distress, anguish and uncertainty over his long and distinguished career because of an ICAC investigation into Recruit 313, a SAPOL program he ran to enlist hundreds of recruits. The investigation was initiated on the back of claims of nepotism involving the children of some senior officers who were given preference for positions. No findings of corruption, misconduct or maladministration were ever made against Chief Superintendent Barr and the report was not made public.

Mrs Barr recounted the torment, anxiety and fear the family endured in not knowing what was happening, and that she constantly feared that her husband could attempt suicide. Particularly disturbing, Mrs Barr revealed the violation she and her sons had experienced on the day that Chief Superintendent Barr took the distressing action to end his life. Unannounced, and without her knowledge, SAPOL entered and conducted a search of her empty house, seizing many personal items and stripping Chief Superintendent Barr's uniform of the decorations he had received for his years of service to SAPOL. This all took place while she was on the way to hospital in an ambulance with her dying husband. She only discovered it because they viewed security footage that SAPOL was unaware of.

Commissioner Stevens could not explain why it happened or who authorised it, but in a later appearance suggested that it may have been an operational decision to gather evidence, except the chief superintendent was still alive. Mr Lander emphatically denied that ICAC officers were involved. In response to a question on notice to Mr Stevens on when he first became aware of the ICAC investigation into Recruit 313, he simply replied:

SAPOL received a written report from the ICAC in December 2020 in relation to the Recruit 313 program, including information relative to Chief Superintendent Barr.

This was Mr Lander's final report on his investigations. However, on the same day, the former ICAC commissioner, Mr Lander, provided evidence to the committee and tabled a letter, dated 15 August 2018, addressed to police commissioner Stevens. The letter from Commissioner Lander advised Commissioner Stevens that the corruption investigation in regard to Chief Superintendent Barr was concluded, but that he was opening a wider maladministration and misconduct investigation in regard to the Recruit 313 program.

It is inexplicable to the committee why the police commissioner would evade answering this question candidly, creating further concern that the committee's mandate to conduct this inquiry was frustrated by many of the SAPOL witnesses. The committee recommends that the Office for Public Integrity investigate the circumstances surrounding the search of Chief Superintendent Barr's home and the powers exercised by SAPOL in the seizure of his personal belongings on the day of his attempted suicide in October 2019.

The common thread to this inquiry was the shame and stigma still attached to individuals even after ICAC investigations had fallen over. Ms Georgina Vasilevski lost the job she loved at Renewal SA after an ICAC investigation into her travel fell to pieces on the opening day of a trial when the DPP conceded it had no case against her. She had to sell her home to cover legal costs she is still chasing and she says she is unable to find employment of the same stature she once enjoyed and doubts if she ever will.

Dr Jurgen Michaelis, once the head of Bio Innovation SA, which stood to attract hundreds of millions of dollars in investment to the state, finds himself in a similar situation even though there was no credible evidence to support the charge that was levelled against him. He was never able to recover his full legal costs or have his impeccable reputation restored.

Then, there is a DPTI senior manager investigated but never formally interviewed by ICAC, whose charges were dropped despite his name and image being splashed across a newspaper and in the media. It is still there for all to see even though he was innocent.

The committee considered what types of remedies and exoneration protocols could be implemented, like public apologies and compensation, to try to remove the indelible stain on reputations. Individuals will soon be able to make complaints, seek reviews of their situation and be considered for reparation and other remedies by the new office of the independent investigator. This has been created because of the work of this parliament in amending the ICAC Act a few weeks ago.

The committee recommends that parliament consider amendments to the ICAC Act that contemplate a publication protocol and exoneration protocol whereby at the conclusion of an investigation and/or prosecution that makes no adverse findings against a person or persons their names are published in a prominent publication, in annual reports and on the ICAC website attesting to the fact.

During this committee, parliament unanimously passed significant amendments I had proposed to reform the ICAC Act. There has been a considerable body of misinformation about the bill and what it does and does not do. Some of this is clearly deliberate on the part of parties who have published misleading commentary on the effect of the changes.

The act does not change the definition or application of legal professional privilege or parliamentary privilege but, for an abundance of clarity, it articulates that the act does not impede or change these in any way. It is demonstrably false to suggest that the bill provides new or additional parliamentary privilege protections—that it protects MPs. The amendments to the act do not weaken the role of integrity agencies, or protect those who have committed maladministration, misconduct or corruption in public administration and public office, and that includes MPs. The reforms were passed to improve the performance and standing of the integrity agencies in the community and give the public confidence and trust in them. They will also help address the issues garnered by this committee.

Firstly, I would like to now thank all the committee members for their invaluable contributions, guidance and advice: the Hon. Russell Wortley—this will be one of his final committee duties and I thank him—the Hon. Tammy Franks, the Hon. Nicola Centofanti, the Hon. Justin Hanson, the Hon. Heidi Girolamo, and previous member the Hon. David Ridgway.

The hard work, time and organisational skills put in by the committee's secretary, Ms Leslie Guy, was exceptional. I would also like to acknowledge the committee's previous secretary, Mr Ben Cranwell. A special thanks to our researcher, Dr Kylie Doyle, who despite coming on board late into the inquiry has produced an extremely astute and comprehensive report.

I would also like to thank the Hansard staff, and acknowledge the assistance we received from the parliamentary library and from my own staff members: Adrienne Gillam, Sean Whittington, Jody Fitzgerald and Tina Woghiren, and special mention to our two trainees, Claire Zollo—who has since left our office and found work in a government department—and Mariam Owrang.

And finally, to those who came to parliament seeking restorative justice: I hope you can find it.

Debate adjourned on motion of Hon. T.A. Franks.

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