Independent Commissioner Against Corruption (Investigation Powers) No 2 Amendment Bill

Second Reading

This bill amends the Independent Commissioner Against Corruption Act 2012 (ICAC Act) to address the government's commitment to transparent justice in South Australia when the Independent Commissioner Against Corruption is investigating serious or systemic maladministration and misconduct in public administration. In short, the bill seeks to clarify how the Independent Commissioner Against Corruption investigates matters raising potential issues of serious or systemic misconduct and maladministration in public administration. Importantly, it will provide the commissioner with the discretion to hold public hearings into matters.

It should be emphasised that the amendments do not affect anything in the ICAC Act relating to investigations into corruption. Neither the government nor the commissioner support open hearings into such investigations. Under the current convoluted scheme, the commissioner's power to investigate misconduct or maladministration is provided by reference to the Ombudsman Act 1972. The Ombudsman has the powers of a commission, as defined in the Royal Commissions Act 1917. However, that power is curtailed by section 18(2), which requires investigations to be carried out in private.

Because the commissioner is both the investigator and the decision-maker in these types of investigations, persons whose rights, interests and legitimate expectations might be adversely affected must be accorded procedural fairness. Therefore, it is crucial that the process be transparent for that to occur. The commissioner is able to determine when and if an investigation or part of an investigation should be held in public.

This bill does what the commissioner himself has been requesting for several years. However, the Oakden investigation particularly highlighted the issue of open hearings. On page 16 of the Oakden report, the commissioner wrote:

This investigation has firmly reinforced my view that the legislation under which I operate ought to be amended to give me the discretion to conduct investigations of this kind in public.

He went on to state:

There is a tension between the Act which provides jurisdiction to investigate and the Acts which provide the powers during the investigation…The tensions could be resolved if the ICAC Act were modified to seamlessly include powers of investigation and reporting in respect of misconduct and maladministration. I have previously proposed to the Government that the powers to investigate such conduct be found by a more direct route than is presently the case. The Government did not accept my proposal. I am hopeful that these issues will be considered again.

Well, they have. These amendments indeed address the commissioner's comments in a practical and simple way. They remove the requirement for the commissioner, when dealing with an investigation into matters raising a potential issue of serious or systemic maladministration or misconduct in public administration, to exercise powers of an inquiry agency and set out the powers and functions relating to such investigations in schedule 3A of the ICAC Act. The schedule consolidates the powers and functions available to the commissioner under the Ombudsman Act and the Royal Commissions Act, clarifying the manner in which an inquiry is to be heard and the powers available to the commissioner and ensuring those powers are fit for purpose.

In particular, the bill clarifies the extent to which legal professional privilege and public interest immunity are abrogated during a maladministration or misconduct investigation and provides for the commissioner to report on one or more investigations in such manner as the commissioner thinks fit. Setting out the powers and functions in this way will ensure that arguments about the scope and nature of investigative powers available to the commissioner are avoided in future investigations of this nature.

The first version of this bill was introduced in the House of Assembly on 10 May 2018 and passed this house on 30 May 2018. That bill was received in the Legislative Council on 31 May 2018. However, it was subsequently withdrawn and referred to the Crime and Public Integrity Policy Committee for report and recommendations on 26 July 2018. The Legislative Council received the report of the committee on 20 September 2018, and a second version of the bill, the version now before the house, was then introduced in the Legislative Council on 15 November 2018.

In addition to the above, this version of the bill makes further changes to the ICAC Act in accordance with recommendations made by the committee in its report. The committee's final report contained eight recommendations. The government has accepted many of the committee's recommendations and has reflected this acceptance in the bill that was presented to the Legislative Council, which, subject to some amendment that I will refer to hereafter, has now come to our house. The recommendations were as follows:

  • make clear that, unless the commissioner makes a determination to conduct a public inquiry, an investigation into misconduct or maladministration in public administration must be conducted in private;
  • provide that the commissioner, a public officer or public authority that may be affected by the investigation may apply to the Supreme Court to determine whether the decision to conduct a public inquiry was properly made, and make any orders necessary to give effect to that determination;
  • provide that a witness or other person may apply to the person heading the investigation for the making of an order forbidding the publication or disclosure of a matter, and to include an appeal process when an application is refused;
  • permit a person to refuse to answer a question, provide information or produce a document only if it would tend to incriminate the person of an offence; and
  • clarify the operation of the clause of the bill relating to legal professional privilege.

The bill also includes further amendments intended to improve some operational aspects of the legislation. For example, the bill will provide a delegation power so that, if for some reason the commissioner is unable to conduct an investigation, the deputy commissioner and/or the examiner may head the investigation and report to the commissioner. The bill also provides for the person heading the investigation to make non-publication or suppression orders. These changes are necessary for purely practical reasons.

The bill further clarifies that, where a person other than the commissioner is heading an investigation, that person may make findings relating to that investigation and can publish a report setting out those findings and recommendations. It is necessary because currently the power to make findings lies with only the commissioner.

Further amendments were made to the bill by a majority of members in the other place. We will see that in the case of a public inquiry an examination of a witness must be conducted in accordance with the rules of evidence, practices and procedures applicable to witnesses giving evidence in summary proceedings in the Magistrates Court, as well as enabling persons who give evidence to call and present evidence relevant to the investigation.

These further amendments, I should point out to the house, were not in the bill introduced by the government member, namely, the Hon. R.I. Lucas, in the other place. As has been stated publicly by the commissioner, the application and operability of public hearings are likely to be compromised by some of these amendments.

The government will consider these matters, and we have commenced assessment of the same, but foreshadow that if the bill is to be progressed and effective some modification may need to be presented to this house for consideration. That said, however, I commend the bill to members and seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Independent Commissioner Against Corruption Act 2012

4—Amendment of section 7—Functions

This clause amends the provision specifying the functions of the ICAC to remove references to the ICAC exercising the powers of an inquiry agency and instead refer to the ICAC investigating misconduct and maladministration in public administration. The provision also makes some amendments that are consequential to allowing public inquiries.

5—Amendment of section 24—Action that may be taken

This clause removes references to the ICAC exercising the powers of an inquiry agency and replaces them with references to the ICAC investigating misconduct and maladministration in public administration.

6—Repeal of sections 26 and 27

7—Repeal of sections 33 to 36

Clauses 6 and 7 are related to the ICAC's new investigatory powers in relation to misconduct and maladministration in public administration. These provisions that currently relate to corruption investigations are able to apply equally to misconduct and maladministration investigations and so are being relocated to a new general Division (see clauses 9 and 10).

8—Substitution of section 36A

This clause substitutes the current section 36A (which allows the ICAC to investigate potential issues of misconduct and maladministration in public administration by exercising the powers of an inquiry agency, i.e. the Ombudsman's powers) with a new section 36A that applies the proposed Schedule 3A to investigations by the ICAC into potential issues of misconduct and maladministration in public administration. In addition, proposed new section 36B provides for applications to the Supreme Court to determine whether the ICAC has jurisdiction to conduct an investigation in respect of a matter raising potential issues of misconduct or maladministration in public administration or to determine whether a decision to conduct a public inquiry was properly made. Proposed section 36C provides for appeals to the Supreme Court from a refusal to make an order forbidding publication or disclosure of matter under proposed Schedule 3A clause 3(1).

9—Heading to Part 4 Division 2 Subdivision 4

This clause substitutes a heading to make Part 4 Division 2 a Division containing general provisions relating to investigations by the ICAC.

10—Insertion of sections 39A to 39F

This clause relocates the provisions deleted by clauses 6 and 7 and provides that, if the Commissioner decides to hold a public inquiry under proposed new Schedule 3A, the Commissioner is required to head the investigation.

11—Amendment of section 42—Reports

This clause deletes a provision that would be inconsistent with the power to hold public inquiries.

12—Amendment of section 45—Commissioner's annual report

This clause deletes a provision that required the ICAC to report on the number and general nature of occasions on which the ICAC exercised the powers of an inquiry agency. The requirement to report on investigations by the Commissioner is already contained in subsection (2)(b)(ii) (and this provision will now cover both corruption investigations and misconduct and maladministration investigations).

13—Amendment of section 48—Commissioner's website

This clause requires the Commissioner's website to include information relating to Schedule 4.

14—Amendment of section 54—Confidentiality

This clause is consequential to the new provisions on public inquiries.

15—Amendment of section 56—Publication of information and evidence

This clause is consequential to the new provisions on public inquiries.

16—Amendment of section 57—Victimisation

This clause amends section 57 to bring the provision in line with the victimisation provision contained in section 9 of the Public Interest Disclosure Act 2018.

17—Insertion of section 62

This clause requires the Crime and Public Integrity Policy Committee of the Parliament to inquire into and consider the operation of the whole of the Independent Commissioner Against Corruption Act 2012 (as amended by this measure) by 31 July 2020.

18—Insertion of Schedule 3A

This clause inserts a new Schedule containing provisions relating to investigations into misconduct and maladministration. The new Schedule contains provisions dealing with the following matters:

  • the power to conduct a public inquiry and requirements to give notice of such an inquiry
  • orders that may be made in the course of an investigation into misconduct or maladministration in public administration to prevent undue prejudice or undue hardship to any person, or otherwise in the public interest
  • the application of rules as to procedure and evidence to public inquiries
  • the right to present evidence at a public inquiry
  • representation for participants in the investigation
  • dealing with the privilege against self-incrimination, legal professional privilege and public interest immunity
  • admissibility in evidence of statements or disclosures etc made in an investigation
  • examination of witnesses (including powers to compel attendance and deal with contempt)
  • power to require a written statement of information about a specified matter or to require answers to questions
  • power to require a person to produce a document or thing for the purposes of the investigation
  • power to enter and inspect any premises or place occupied by a public authority and anything in or on those premises or that place
  • action that may be taken following an investigation, including the making of findings, recommendations or reports

19—Amendment of Schedule 4—Reviews

This clause amends Schedule 4 to require the reviewer to maintain a website, to include a mechanism for calling for public submissions prior to an annual review and to specify certain categories of information that must be included in a report on an annual review.

Schedule 1—Transitional provisions

1—Application of amendments

The transitional provision deals with the replacement of section 36A and the introduction of the new investigation powers.

Debate adjourned on motion of Ms Cook.