Crime and Public Integrity Policy Committee: Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill

I commend the member for Kavel and the committee for the work they have undertaken in respect of the Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018, which, as indicated, was referred to the committee for their consideration. The committee was given a very short period of time to consider it, for a very clear reason given at the time by members of the Legislative Council, namely, that the preparedness to undertake a further review of this matter by the committee was something in which time was of the essence.

Clearly, from the government's perspective, this has been an issue in relation to public hearings for ICAC inquiries in relation to maladministration and misconduct matters, not only as an election promise but as something which we have pursued for a number of years. It is not a new issue; the legislation had been on the table to enable some consideration. Nevertheless, the government were quite happy to send this for the short period—a couple of extra days were extended to enable the completion of the report and tabling. It is here now and we welcome it.

I thank those who made submissions to the committee, including Mr Wayne Lines, the Ombudsman; Mr David Edwardson QC, from the South Australian bar; Mr Morry Bailes and Mr Sam Joyce, from Tindall Gask Bentley Lawyers; and Mr Tim Mellor of the Law Society of South Australia. Evidence was followed up at the committee in August by Mr Mellor, Mr Edwardson and Mr Lines. Additionally, Mr Michael Abbott QC; the Hon. Kevin Duggan AM QC, the ICAC reviewer; and the Hon. Bruce Lander QC, the Independent Commissioner Against Corruption, all made themselves available to give evidence.

It is a bit like Groundhog Day when I read this report because some years ago, when the act came into being after nearly a decade of the opposition fighting for an ICAC to be established, there were a number of areas raised by the opposition at the time to ensure that there was due process, there was a fair process and there were adequate protections for those, particularly, who might be called before the commission. That all fell on deaf ears of the then government and we got what we called a 'skinny ICAC' at the time, that is, an ICAC with very limited funds to undertake its inquiries and duties, including investigations, inquiries, reviews and an educative role, which, being a new entity in South Australia, was clearly going to be a significant task.

A number of the matters that have been raised, again by senior members of the profession, have in many ways been welcomed. It is fair to say, and I think Mr Lander made this very point in his evidence, that in each and every one of the proposed eight recommendations, where he has given consideration to matters that are raised under these ills that are sought to be remedied, he is afforded that opportunity. For example, when someone has sought to be legally represented, there has been no denial of that and no attempt to interfere with that opportunity.

When there has been a request to present an argument on review or appeal—either an administrative review or appeal—an example is the Oakden inquiry, which would be well familiar to many of those sitting on the other side of this chamber because many of them established their veteran status in relation to the conduct of the former government by virtue of that inquiry. Members will recall that, prior to the conclusion and publication of that report in early 2017, the commissioner made a public statement that he had received a request for certain information not to be disclosed and not published in his report by three persons attending in his inquiry. He considered that.

He had indicated to the applicants in that regard that they might want the opportunity to go to the Supreme Court and have his decision to decline that tested, and that he was holding over the finalisation of his report to facilitate that opportunity. As it turned out, Mr Abbott QC, who was representing one of the parties, apparently had instruction not to proceed to the Supreme Court, so it all evaporated. But the point is made that these processes are important and it appears, as confirmed by the evidence of Mr Lander, and, indeed, supported in some instances by the publicly known behaviour in relation to the operation of these inquiries, that that is exactly the practice he has applied for the purposes of conducting those investigations.

We are pleased to hear that. As a parliament, it is important to know, particularly where there are investigations undertaken in a confidential environment—that is, within the envelope of secrecy—that we recognise the significance of these entitlements of protection. The committee has acknowledged in its report that a number of these recommendations have been demonstrated in practice and are already covered by other aspects, including common law entitlements and protections, but they wish them to be explicitly reflected in the bill. The government of course will give that consideration and come back to the parliament in due course.

There is one area, though, in relation to a submission—I think originally put by members of the bar and/or the legal profession—that was to account for and record provision for the procedural fairness and natural justice common law right to be placed in the bill. I would say the only practical implication there would be with this is that that would be the first time that has actually been the case in a bill. Sometimes the argument has been that to try to codify a common law right and present it into legislation may, in fact, diminish its benefit.

It does not apply in a lot of our laws. If we introduce it in this one—and that may well have merit—I just advise the parliament that, as a matter of process, we may need to look at a whole lot of other laws, that there may justifiably be applications put to the government to extend that to a very extensive number of other laws where a common law entitlement applies. That may be a matter we will need to consider in due course, and it may be very comprehensive. Nevertheless, we take the advice that is given.

Finally, my understanding, in reading the motion that passed in the Legislative Council to facilitate this inquiry, and ultimately this report, was that the bill would be withdrawn and referred for consideration to the Crime and Public Integrity Committee. The interpretation of that has been that the bill is no longer before the parliament at all. As some members would know, there is a common practice in the commonwealth parliament, and I will just use the example of the commonwealth electoral laws that, after being introduced, were recently referred off. A report was given in April, and I think a recent report was given this month to the parliament. Then it goes back to the parliament for consideration.

I am advised by the Clerk of the Legislative Council, as well as someone else very important over there, that the process is confirmed that the bill is no longer before the parliament at all, so it does not automatically come back to the parliament. We will have to reintroduce the bill to the parliament, and quite probably we will consider that going into the Legislative Council it will be introduced by a member of the government there, with any recommendations that the government endorses for amendment. We would hope to be doing that in the relatively near future.

That process will mean it can be debated in the Legislative Council first and, if there are any matters to consider, then it will come down to us in due course. However, I thank the committee for its work.

Motion carried.