ICAC (Serious and Systemic Maladministration or Misconduct) Amendment Bill 2017


In presenting this bill to the parliament, I confirm the opposition's position that we should deal with an amendment to the principal act. The Independent Commissioner Against Corruption Act is legislation that provides for an Independent Commission Against Corruption. We now know that Mr Bruce Lander QC has taken the view during his term in office that some amendments need to be made, and where those amendments that are of merit have been presented to the parliament by the government or by us we have supported them. 

There is one aspect that is a stark example of what the government has refused to consider, that is, that any aspect of a hearing by the Independent Commissioner Against Corruption should have access to be in public view.

The integrity of the commission and the importance of its standing in the community is reaffirmed, in his view, in the event that he has an opportunity for serious or systemic maladministration to be in the public view.

   Historically, there has been consideration of whether an investigation in respect of a corruption allegation should be heard. That has been made abundantly clear in respect of an objection by the independent commissioner. Mr Lander has at all material times said that his investigations in relation to corruption should not be the subject of any opportunity for a public hearing and, in that way, a public scrutiny.

   'Why?' he says. Because that is an investigation in relation to which he does not make a finding. That is an investigation which he would refer, if he considers it needs to be prosecuted, to the relevant authorityusually the Director of Public Prosecutionsto make a determination about whether there is sufficient evidence to prosecute a person or persons. On that basis, on the distinguishing feature of that, he says, and certainly at all material times has said, that corruption investigations should not be public.

   On the other hand, to ensure the public confidence in our public administration when there is an allegation of serious or systemic maladministration or misconduct, it must come with the opportunity for some evidence or aspects of that investigation to be under public scrutiny and be available to be public. He suggests and this bill promotes an opportunity for that to occur by him receiving powers under the Royal Commissions Act to enable that to occur.

   This bill specifically provides that, in the event of him determining that he should conduct an investigation in relation to maladministration or misconduct, it is now elevated to 'serious or systemic', and he makes the determination about whether he or some other public integrity body should investigate, i.e., the Ombudsman. In the wake of the Oakden scandal, the commissioner has now made a public statement that he considers this to be of a serious nature that qualifies for his attention and investigation.

   He has committed to undertake that inquiry in respect of the entity since 2007 and, in particular, in respect of public officers, including ministers, as to their conduct or failings in respect of their obligations, as outlined in the Mental Health Act. He has made it abundantly clear, in particular, to ensure that there is public confidence in this type of investigation, that there is a capacity to be able to declare that it or all or part of those aspects are by way of public hearing.

   Members will be aware that in recent times we have had the royal commission by Her Honour Margaret Nyland, former Supreme Court judge, in respect of the child protection system. She determined in the course of that inquiry that there ought to be available information from the evidence of Mr Shannon McCoole on a daily basis of that case study in respect of her inquiry and that it should be made public, and she identified certain conditions to do that.

   So, it is not an unheard of circumstance, where we have the available evidence, the opportunity for public scrutiny, the importance of securing public confidence in an investigation, that it is necessary for us to ensure that we identify and obviously expose, where there has been maladministration, who was responsible, and of course the findings that would go with it. It is quite clear as to what the independent commissioner says about this, and we are introducing a bill to ensure that happens.

 Clearly, there must be a balance between the public interest of securing the discussions and, ultimately, determinations of a cabinet. For good reason, we have those rules and we have those standards. But there are certain circumstances where they are important in the identification of integrity investigations and sometimes they need to be produced and appropriately not made public. They need to be produced for the investigative officer to be able to have a clear understanding, and if it is good enough for the government to be happy to rush them in for presentation for consideration by one party of an integrity assessment it should be good enough for Commissioner Lander.

   We wish Commissioner Lander well with his investigation. We hope that it will progress promptly. We would like it to be in the envelope of having an opportunity to have public confidence with the scrutiny of public hearings with it. We call on the government to come in and support this bill that essentially has exactly the same terms of the position we have presented for the last two years, which is now item No. 7 on the parliamentary agenda under private members' bills.

   I urge members to think very carefully about this. In respect of those on this side of the house, we are clear about our commitment. Each one of you has a conscience, and I would ask you to exercise that to ensure that we have a proper and thorough and, where necessary, appropriate public examination of this tawdry and disgraceful chapter in the service of public administration of an aged-care facility in this state.