INDEPENDENT COMMISSIONER AGAINST CORRUPTION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (12:10): The Independent Commissioner Against Corruption Act 2012 has now been in effective operation for some three years, and the commissioner appointed is Mr Bruce Lander QC, who has been the one and only commissioner pursuant to that legislation. As a state, we are better off in the protection of having an ICAC. It was a long time coming. It was introduced finally by this government after many years and after almost every other jurisdiction around the country had advanced to having a criminal and/or corruption commission.

It is in a form that is a model that was not exactly as our side of the house wanted. It was often described as the 'skinny ICAC' at the time of its establishment, particularly reflecting the limited amount of funds that were available to it. However, from our side of the house, we accept that, as a relatively new integrity institution in the state, it does require refinement from time to time and improvement and, as the Attorney has pointed out, there are operational matters that need clarification and enhancement and sometimes they are only evident as a result of the operation of the institution.

After some three years, during which the commissioner has undertaken direct investigations by the government at the request of the Attorney-General, which is in his purview to do, he has provided to the parliament several dedicated reports, including a review of all the integrity authorities operating in South Australia, identifying their overlap and the need for some review; the investigation and consideration of police complaints in South Australia; the review of the whistleblowers' law; and his reporting to us in respect of lobbyists and how they should be regulated, in particular to protect the public in respect of any behaviour that may fall into corruption, maladministration or misconduct.

The commissioner has also provided two comprehensive reports to the parliament in his annual reports and, of course, in a few months I expect we will have his report for the 2015-16 financial year. Members will also be very well aware of his report into the sale of state-owned land at Gillman in which he investigated the activities of ministers, senior personnel in Renewal SA (or the Urban Renewal Authority, as it strictly is), and other parties, and found two senior members of Renewal SA, including its then chief executive, to have undertaken maladministration in their duties or lack thereof. He has already provided an enormous amount of advice to the government and to the parliament and indeed given comprehensive advice and provided information to the Legislative Council's committee, which is the—

The Hon. J.R. Rau: The public integrity committee.

Ms CHAPMAN: —public integrity committee. It has a longer name, but I will find it in a moment and just correct that. Yes, the Crime and Public Integrity Policy Committee of the Legislative Council has provided evidence to that committee. I should also acknowledge that a reviewing party, a former justice of the Supreme Court, His Honour Mr Kevin Duggan QC, has acted as a statutory reviewer of the commission itself. All in all, we have had a lot of advice. We have had specific requests from the Attorney to consider a number of matters, including the operation of ICAC itself within the context of a number of other public integrity entities.

Primarily as a result of recommendations from his annual report 2015 and the Gillman land sale report, tabled 14 October 2015, there were a significant number of machinery reforms, which I think the Attorney describes as a refinement of operational matters. It is pedantic as to what it is described as. We are talking about relatively minor matters, but things that need to be fixed. As a result of that, I introduced a bill to this parliament to capture a number of these recommendations.

In the first instance, let's deal with the elephant in the room, that is, the question of public hearings. Members know what the Liberal Party's position has been on that issue. Indeed, the commissioner himself took the view that there needed to be some relaxation of publication rules to enable proper administration of his commission, but to deal with public hearings and deal with the course of the investigations of maladministration and misconduct he has since advanced a more relaxed view than he has in the past.

That has been a moving feast, but the government's position, to be fair, has always been that they will not agree to public hearings and that this will not be an institution that will be heard in public. Cogent arguments have been presented, but in any event it is not a matter the commissioner has advanced as something that should fracture the proper reform of all other matters that need to be attended to. We agree with the commissioner on that; we agree with the government on that.

We welcome this bill, largely because it deals with a number of matters that are covered in the bill that I have had in the parliament since late last year, but also because it deals with the extra matters of making it clear in respect of members of parliament. In respect of that, the commissioner's view, and indeed the Attorney-General's view, has been placed on the record in correspondence, but just in case they are dead and gone by the time there is any challenge to that, I think it is important that it be in the legislation, and so I welcome that being included in this bill.

Finally, as the Attorney has pointed out, I make reference to amendments to the objects of this act to make it abundantly clear that the purpose of this commission is to investigate corruption and serious or systemic maladministration or misconduct. Its primary role is not to be a police department with extra powers. In short, the reason we have advocated for and supported having an ICAC in South Australia is because corruption is a criminal offence and it does exist.

Regrettably, there are situations where, wherever there is property, money or power, there can be people who are vulnerable to committing this offence. We need to ensure that it is identified and eradicated so that we can maintain confidence in public administration in particular. Bear in mind our ICAC only deals with public administration. It does not deal with the private world of banking or horseracing or any other area which some other international ICACs favour.

I just place that on the record because, when trying to identify and secure in the investigation accumulation of evidence to successfully prosecute, it is an unusual piece of conduct. You do not very often immediately have an apparent victim to complain. It is generally accepted that it is necessary to have a body that is vested with very specific extra powers to be able to investigate that.

The most common powers, of course, are to be able to require people to submit to questioning, provide documents and statements, have their phones tapped, etc. These are extraordinary powers for extraordinary circumstances, so we support the government in ensuring that the nature of investigations by ICAC are at that serious level and are not being applied, using that structure with its extraordinary powers, to deal with cases which, frankly, can be dealt with by other agencies.

I undertook an exercise just recently of listing all of the public servants, police officers and even the head of a department who, in the last 18 months or so, had been the subject of an ICAC inquiry of which the commissioner had made a public statement—in fact, his usual practice was to issue a media release—to confirm that he had referred these persons to the police or to the DPP for prosecution or further investigation. Indeed, there was a very healthy list of people who were largely charged with theft or abuse of public office. There were some accounts of aggravated theft and some accounts of dishonesty.

That was the nature of the types of charges that resulted and, to be frank, most of them were for relatively minor amounts. Sometimes it was stealing some of the property of the government, sometimes it was using a credit card for some purpose that was not allowed and sometimes it was misappropriating moneys for which they had responsibility for a specific purpose. I think one of them was for a sports fund for young children, and the misappropriation of those moneys was for their benefit.

So, we are not usually talking about really large amounts of money or valuable property. These are matters which could have been reported, identified perhaps by the Auditor-General or some other body within government, referred to police and prosecuted. Frankly, I do not think any of these matters needed the involvement of an ICAC. However, some of these matters were the joint investigation of South Australia Police and ICAC, and in any event they have all gone on to be prosecuted. Most of these have been dealt with now that have been made public, and they have been appropriately dealt with in the end—a very expensive process to go through, I suggest. It gets the Rolls-Royce treatment for relatively small amounts of money or value of assets.

The other thing I make the point on is that our police force, which is largely our investigative agency in South Australia, actually is pretty good at investigating a number of these matters anyway. Indeed, they have even been prepared in recent times to identify, investigate and prosecute their own, so I do not think we should be in any doubt that SAPOL themselves have successfully investigated, as part of their own anticorruption operations, even their own.

There was a very public case several years ago of Amanda Boughen, who was a police officer charged with abuse of public office, attempting to pervert the course of justice, later pleading guilty to fabricating and concealing evidence in a major drug investigation. Most recently, there have been allegations involving six police officers of evidence for crime scenes being taken, and theft and corruption charges are pending. So, we have some very good agencies that do their work, but for the special high-level cases we need to be clear that we have a corruption commission to be able to deal with it. The new primary objects will be substituted to read:

(2) Whilst any potential issue of corruption, misconduct or maladministration in public administration may be the subject of a complaint or report under this Act and may be assessed and referred to a relevant body in accordance with this Act, it is intended—

(a) that the primary object of the Commissioner be to investigate corruption in public administration; and

(b) that matters raising potential issues of misconduct or maladministration in public administration will be referred to an inquiry agency or to the public authority concerned (unless the circumstances set out in section 7(1)(cb) or (cc) apply).

This is important, I think, to record. The exercise of this by the commissioner is to take into account, and this is defined in clause 5(3)(2)(a), as follows:

…serious or systemic if the misconduct or maladministration—

(a) is of such a significant nature that it would undermine public confidence in the relevant public authority, or in public administration generally; and

(b) has significant implications for the relevant public authority or for public administration generally (rather than just for the individual public officer concerned).

Let us consider the one and only case so far that the commissioner has reported on at length to the parliament, which is in this category, that is, the sale of public land at Gillman. A very comprehensive inquiry was undertaken by the commissioner, acting as though he were the Ombudsman under the Ombudsman Act, and there was a finding of maladministration.

I do not think there is any doubt that a case such as that which involved a government agency, in particular Renewal SA and the multitude of parties that were relevant to investigation and consideration by the commissioner, that that would qualify and remain qualified as an issue that ought to be within the purview of Mr Lander to undertake. The amendments in this bill would not remove his opportunity to do just that and, frankly, I would expect him to do it.

Can I just leave aside the other area in relation to police complaints and the conduct of all employees in the police department, from the Commissioner of Police down. It is proposed that there be a rewrite of the police complaints procedure in this area of integrity management. We have already given notice of our bill, from our house. We have been waiting a long time for this, but we understand the government is now going to advance this, and we are happy to work with them in relation to it.

Certainly, it is important to remember at all material times that, because police officers are in a unique position of service to the people of South Australia, they are often the repository of information—including criminal intelligence—which, for all our sakes and for our protection, they need to keep confidential, etc. So, we accept that they need a separate structure and that they should have it. For other government departments or, as has been identified in this bill, public entities that come under serious criticism, to the extent that they are a public authority or in public administration, where there is an undermining of confidence we must surely have someone at the level of Mr Lander to effectively investigate those allegations and restore public confidence.

There is only one other matter I want to address, and that is an issue that has not been adequately dealt with in this bill—that is, how we manage the time frames for items that are the subject of a retention order or a warrant that have either been handed up pursuant to a retention order or seized pursuant to a warrant, and the processes that operate currently. I am assuming that the amendments in this bill are consistent with what I have read in recent days. I still do not think that it actually resolves an issue that we have raised and I think does need to be raised, but we are happy to follow it through in the other place, and that is a question that I have advised the government about—that is, there being no time limit in some of the processes in respect of confiscated assets and documents.

I will outline the issue because I was referred to the ICAC website, in particular their standard operating procedure in respect of entering and search warrants and exercise of powers, and I have obtained that and read it. I do not think it actually resolves the problem. In fact, it does not really deal with the issue at all. What that document tells us is the process to be undertaken if a warrant is issued, how the powers are to be exercised and what notices should be given to the party receiving the warrant, etc.

I will try to be brief on this. Members would be aware that under the Independent Commissioner Against Corruption Act 2012, there is provision in section 31 for the 'Enter and search powers under warrant'. I hope I do not butcher this by my abbreviation, but the commissioner himself, on application, can issue a warrant authorising an investigator to enter and search if the place is in respect of an inquiry agency, public authority or public officer. If you want to get a warrant for a private place or a private vehicle, you have to get it from a judge of the Supreme Court. In short, that is what that tells us—for the purposes of an investigation into a potential issue of corruption in public administration. It has to fit within the objects of the act.

Provisions under section 31(7)(c)(v) and (vi) go on to tell us what the warrant authorises the investigator to do. In particular, subparagraph (v) states:

to seize and retain anything that the investigator reasonably suspects has been used in, or may constitute evidence of, a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator;

Subparagraph (vi) essentially enables the same thing in respect of an offence, other than 'other prescribed offence', and there are some qualifications. That tells us what is to happen and that there is the capacity to then issue a retention order.

We have two events that can result in goods being brought into the possession of ICAC; one has a time limit on it and one does not. If a seizure or retention order procedure is undertaken and, in particular, a retention order is issued, anything that is taken into possession essentially has a two-year limit on it—that is, if the retention order lapses after two years as defined in the designated period in the act. However, if an item is seized pursuant to a warrant, that can be held indefinitely. Obviously, the commissioner has the discretion to release that material, but it appears that there has been an evolution of our law in this regard, with two distinct alternate positions.

Bear in mind that in 2014 we were asked as a parliament to consider amending the six-month warrant limit and our parliament was happy to oblige. That was presented to us as too short a time for some inquiries and therefore there needed to be an extension, so we considered what I colloquially call the 'two-year rule'. I do not think that it was intended at that stage by anyone that there should be a limit on one and not the other, and I still do not think that there should be a distinction between these two items. I accepted that in 2014, and still today I accept that six months may be too short a time to deal with these matters.

Bear in mind that members might also be aware that in the issuing of warrants they lapse if they are not exercised within a month. We have certain protective rules around any potential abuse by any investigator who has the benefit of searching and seizing under warrants and some fairly strict guidelines that go with them, but there is nothing in the guidelines that I have been directed to that gives me any comfort that we have not dealt with this other matter.

I am happy for the Attorney to have a look at that between houses and to consider how we might best address it, but it seems to me that it is something that needs to be considered. Remember here that the items that are the subject of seizure under a warrant may not just be items owned by the person who is the subject of investigation. They may be the equipment or items of a third party; for example the most common, as one would expect, is other co-workers of the person under investigation, or agents for that person (an accountant, for example) who may have property or documents which are the subject of a seizure order—which, at present, can be indefinite, and I do think we need to tidy up that issue. I indicate that I am happy to work with both Commissioner Lander and with the government to have that dealt with.

I conclude by confirming my appreciation to Commissioner Lander for his ongoing work. He has had a busy three years, and he has served South Australia well in his work to date. I would also like to record my appreciation of his registrar, Ms Patricia Christie, who has acted so well in the administration and ensured that we have our annual reports to parliament promptly, something I cannot say for every agency of the government. I thank them for their continued work.