INDEPENDENT COMMISSIONER AGAINST CORRUPTION (MISCELLANEOUS) AMENDMENT BILL 18 November 2014

Second Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:31): 

I rise to speak on the Independent Commissioner Against Corruption (Miscellaneous) Amendment Bill 2014 and indicate that the opposition will be supporting this bill. Consideration has been given to whether, in fact, other aspects of the current Independent Commissioner Against Corruption Act 2012 need amendment, and I think they do. I think there are a number of issues that have been raised (most recently by the commissioner in his first annual report in 2013-14) for which there are various advances as to how they are being looked at and resolved.

It is not our intention to advance amendments to this bill for two reasons: firstly, we are satisfied that the amendments that are being presented for our consideration in this bill are exclusively those that have been requested by the commissioner, and which we have considered and agree ought to be advanced; and secondly, that for the application of the duties of the commission, and for that to be more efficient and effective, it would be in the interests of the operation of that entity that we progress these reforms as quickly as possible.  

I do not agree with the Attorney's assertion in his second reading that the progress of this bill needs to be dealt with as a matter of urgency. As usual, he exaggerates the position in his contribution, especially when he starts talking about the nature of the models of ICAC that we debated in the principal debate, and describes the model for New South Wales being 'like reality TV'. Going through all the flowery language of the Attorney, we are satisfied that these amendments
require attention, and now that the ICAC has been operating for some 12 months, it has actually been able to identify some deficiencies in the original legislation.  

I will refer to one other area of transparency that I think does need to be considered in the future when we are dealing with this at a more substantive level, but in the meantime I will just refer to the principal areas of amendment that are the subject of this bill. The first is essentially to relax the strict confidentiality provisions which the commissioner claims have caused some confusion. There will be a new definition of 'publish', to allow for communications between two persons.  

This has become abundantly clear in consultations that I have had, and in meetings that I have had in respect of potential breaches of the ICAC Act, and indeed in advising our own side of the house as to how they might conduct themselves in respect of ensuring that they are fulfilling any obligation that they have as members of parliament. In all these environments, it has been very difficult to advise sufficiently to give people protection against the current breaches that could occur in publishing or allowing any communications to another party.  

The most obvious ones are if there is any information that might transfer between a person who is a witness or the subject of an inquiry and their spouse or personal partner. There is obviously the question of communication with someone in that circumstance and their employer, because it seems logical that when one is involved in any activity that might come under the microscope of ICAC, the two groups of people who are going to be somehow or other swept up in that are a personal partner or family and employment.  

Sometimes it is just to make an appointment, to conduct an interview or to be available, and the secrecy surrounding the investigations of ICAC and those that they might touch in that process have made it very difficult for those who were receiving instruction. They, of course, are not just members of this house, but obviously people in the Public Service, because we are talking about potential corruption in public life.  

Of course, we know from the commissioner's annual report that he has conducted extensive educative seminars and the like with various agencies to try to assist them in making sure that they are not in breach of any level of public integrity that is captured by the act. Clearly, it has come to his attention that the strict confidentiality provisions are too strict. There needs to be a measure of protection against publication for all the reasons that we have discussed, even though on our side of the house we have been completely at odds with the government in respect of the aspect of the public hearing of ICAC matters.  

We are not here to traverse that substantive difference again, but we were always, I think, agreed that prior to the assessment and progressing of an investigation people should be protected against unfair public announcements about them being under inquiry of some kind, whether they are a witness or someone who is under scrutiny. In the case of our model, prior to any assessment of the Office for Public Integrity, which is the entity that is the gatekeeper for these matters, that should be kept confidential. We cannot have a situation where people can say, 'I have referred this to ICAC. It is on the front page of the paper,' by anybody out there who wants to cause mischief and the simple protection for that is to prohibit any publication of that at all prior to any assessment by the Office for Public Integrity.  

As I say, we have a different view to the government as to the operations after that and, in particular, the issue of the transparency at the level of hearings, but we are agreed that there needs to be some protection against the mischievous, certainly vindictive and sometimes even lunatic, actions of those who want to hurt another, so let us be clear about that. The commissioner has understood it. The Attorney has now introduced amendments to give a fairer balance.  

The second is to confirm that police officers, while working for the commission, retain their full powers, including their use of general warrants. This is an interesting area and I do not want to dwell a lot on it but, unsurprisingly, the people who work in ICAC and are often the valued employees, of course, can be existing and serving police officers. In some other ICACs around Australia, quite often we find in the employment of the people who are doing the work, in respect of the scrutiny of these investigations, retired police officers—people who have had some other investigative role in their lifetime and in their prior work life. 

In our ICAC, of course, we are relying at present on a number of existing South Australian police officers who are then retained by the commission to undertake that work, but they have certain powers and responsibilities as existing police officers. My understanding is that the commissioner has accepted that they can be treated as retaining the powers that they have as existing police officers. As I said, one of them is this capacity to be able to have a general search warrant. It has been operating on that basis, but the legislation could be confusing and it could be challenged. It needs to be tidied up and we accept that.  

It is fair to say that we have a situation where we have the South Australian police and the ICAC. They are both investigative bodies and they both have certain powers that certainly the general public do not have and they have them at different levels. The police obviously have powers to enter property, stop vehicles and exercise the powers they have under their general search warrant position. For a number of other categories they have to get approval either from a senior police officer or a court to deal with searches, or particularly where warrants are required with court approval.  We have that level and then we have the ICAC employees who have a different set of powers. I think it is fair to say that they can—for the very specific purpose of the nature of what they are investigating—have more invasive capacity against the general civilian population when they are undertaking those duties, so we have to be very careful about how they are carried out, but, for the purposes of these amendments, they are accepted.  

There are a number of other practical amendments which have been brought to the attention of the Attorney which I want to summarise. One is to allow the commissioner, 'by written notice, to authorise an investigator to inspect and take copies of financial records'. This is, we are told, similar to the power under section 49 of the Evidence Act 1929. This is specifically to deal with the capacity to be able to take copies of financial records when investigating banks and the like, so we do not have an issue with that. There is also examination powers.  

The next is to add in provision for the commissioner to have regard when he is considering whether it is in the public interest to make a public statement, and that expanded so that if, in the commissioner's opinion, it is appropriate to do so, he will make a statement in the public interest. This can often be in response to a public statement (that is, that has been made in the media), and it allows him to take into account whether a person has requested that the commissioner make a statement. I suppose that is to deal with the reactive circumstances, usually for something that is out in the public arena. It will allow for the commissioner or the Office for Public Integrity to request further information from an agency to make that assessment, which, of course, relates to the whole question of whether an investigation is to advance any further.  

It also provides for the person leading an investigation to require, by written notice, the production of a written statement of information, which is a little bit like our interrogatories process in court actions. It will require then for answers, to be given in writing if necessary, to a list of questions that is provided. Like our interrogatories situation, it is not an offence not to answer these questions but, of course, there are consequences in respect of further inquiry that can happen if one does not. It allows for a more efficient process, we are told. It is a time-honoured practice in our court system to expedite matters and obviously to be able to identify the issues in dispute and sometimes to clarify matters so that there is not unnecessary investigation or waste of public resources.  

There is also a proposal to provide for evidence or information obtained by the commissioner to be provided or used by other law enforcement agencies and prosecution authorities. I am told that current investigations or information from those have not been held back, but the commissioner has sought that this be absolutely clear so that it is beyond doubt as to making that provision available. It seems a logical step, as they are an investigative agencies just like the police that they have the capacity to hand over the material that may be relevant to the DPP or police prosecutors, if appropriate.  

The practical amendments provide for the extension of the period that a retention order applies, currently for six months, to a period of two years. Probably, the commissioner has found that wrapping up these investigations as quickly as he would have liked in some instances has not been achieved and that therefore, for practical purposes, there be a more realistic extension granted in the legislation. 

Similarly, there is the removal of the application of the designated period for items that are seized and retained by an investigator for the purpose of an investigation into corruption in public administration. It also allows, by agreement with the police commissioner, the persons performing functions under ICAC to have access to confidential information and databases held by SAPOL for the purposes of ICAC's investigations and assessments. So, it is really just a question of allowing the sharing of that data. Again, they are both investigative agencies; one is obviously very much more targeted, namely ICAC, but obviously each has the same objective.  

We then move to another more substantive amendment, that is, to amend the Crown Proceedings Act 1992 to remove the obligation to give notice to the Crown Solicitor before a summons is issued to a minister; currently, this is required. I had experience of this myself in practice, when it was necessary to serve a minister (under the Bannon government) and give notice of those proceedings before issuing the summons. In that instance, it was ultimately to apply for a warrant for the arrest of the minister, which was not necessary in the end because he turned up, I am pleased to say, or at least his representation turned up.  

That, the commissioner felt, though, was giving an unreasonable and unfair advantage to ministers in the notice of inquiry, that every other civilian in South Australia does not have access to, a sort of notice of the problem coming. Therefore, his view was quite clear that notice should not be given, that ministers should be treated the same as everyone else. It is the taxpayer who often picks up the bill for some of these things, whether it is a defamation action or any other proceedings, where the conduct that is complained about is carried out in the course of ministerial duties, or at least it is claimed to be, so that there is a call on the taxpayers funds to meet that. It is not unreasonable in those circumstances that persons who are issuing proceedings give notice to the Crown Solicitor of their intention to do this.  

In fairness, it is also a situation where the Crown has special privileges in limitations of being sued for the recovery of money owed and things of that nature. The Crown sits in a unique position, and its ministers, accordingly, have certain protections and support. In the ordinary course of litigation, it is not unreasonable that they know about it, but this is not a court action; this is ICAC undertaking its ordinary investigation. Here, we are talking about a summons being issued for the production of a document or the provision of information by a minister in an investigation as distinct from court action. I think it is reasonable that we support the initiative of the commissioner in seeking this amendment.  I think I said earlier that this is a bill that is exclusively to cover the provision of the matters raised by the commissioner. I think there is actually just one small amendment in this bill, which relates to the TAFE act. It is not necessarily something that the commissioner has brought to the attention of government but, if my recollection is correct, this was a matter that was identified in the briefing as needing some correction. It relates to the fact that in 2012, at the time a new TAFE act was passed in this parliament, a rather peculiar process was undertaken. I have never seen it before in the time I have been here, nor since, but it was a process where the new bill came in setting up the whole new structure for TAFE but attached to it, as a schedule, was the old act.  

I still think it is bizarre; nevertheless, I think it was something to do with at least one of the unions being concerned that something might be missed when it was redone and, to make sure it was not missed, it was added as an attachment. So we now have this bizarre piece of legislation that sits in our statute books which is, firstly, double the thickness it needs to be and, secondly, just adds a lot of confusion when trying to read what is actually to apply. However, apparently that is what was insisted upon so that is the way it was done.  

Having done that, they omitted to identify the question of application, because the schedule—the old reference of employees under the Technical and Further Education Act 1975—did not match up with the reference to an officer or employee, I think, in the new act. As a result we have a mix-up, and we need to fix it up. Of course, we agree to do that. I think I had something to say at the time about how ludicrous it was, and it is funny how things come full circle, but we need to resolve that. I thank Ms Barbara Tiffin from the Attorney-General's Department for the provision of her thorough briefing in respect of the bill, and indicate that we will be supporting the same.  

I will just mention one other matter, and that is that there are still a lot of things to be fixed up, according to what the commissioner reported to us in his annual report. One is a question of the
use of social media, and apparently that is being looked at as best one can. We are not sure what the government is going to do about that; in any event, it is a problem.  

The other issue is that of the claim by the commissioner that there is use of private emails to communicate official information by persons in the government, either members of government or employed by them. That is very concerning. We have asked a number of questions in this house about that, and I have to say that the 'head in the sand' approach is not one that we accept as being anything like responsible of a government. The fact is that it is weeks now since this report was tabled on 14 October—six weeks since it has been tabled—and we still have no indication from the government as to why they have not issued a direction to members of the government in respect of this practice, which the commissioner strongly recommended take place.  

I am hoping that the government will suggest that that is imminent, but I make this point. Let us assume it goes out in the next few days, even. What possible action has been taken to ensure that there is not a breach of the State Records Act—which, of course, requires the keeping of records and making them available under various processes—in the last six weeks? The answer to that is: nothing. They could have easily, and it is not acceptable that the government should have dragged the chain in this regard and not have acted immediately.  

Yet, with all of the proffering of the importance of having transparent processes, all the speeches we had just the other day in this place by the Premier about his need to have a new model of governance in respect of his boards and accountability to government, and all that contribution purporting to commit to the transparency of his government, this has been identified by the senior investigating officer of the state and six weeks later nothing has happened. I find that unacceptable and quite irresponsible of the government in that regard.  

There is a third area in respect of lobbyists and there is a recommendation in respect of legislation to formalise what has been a relatively informal process here. There are some serious questions to be asked about how this is addressed. The statutory provision is one option, and that is recommended by the commissioner so we will look forward to further advice from the Attorney as to what he is prepared to do, but the real question is going to be what we are going to do with employees, rather than just retired MPs and the like, and what we are going to do with persons who take on another role, that is, in legal firms and continue to carry on lobbying work.  

These are not easy issues to resolve but they clearly need to be if there is going to be any genuine consideration of ensuring that the lobbyists seeking to influence government are clearly identified, which reduces the risk of any unscrupulous behaviour in respect of that activity. It is a little bit like having political donations, which is, indeed, also referred to by the commissioner, and ensuring that there is a disclosure of political donations.  

In essence, we have a situation where giving money to a political party—which I think should be to anyone who is running for parliament rather than to just political parties but, in any event, that is another matter that Independents seem to escape the scrutiny of. In itself, there is nothing wrong with the giving of money to a person who is interested in standing for parliament, whether they are a member of a political party or not. What is important, though, is that people know where there are relationships of gift; and, similarly, for lobbyists, that people have presented submissions and put persuasive arguments and, presumably, advocated presentations on behalf of parties and companies and the like, at any level where a decision should be made either in policy legislation or on funding. There is absolutely nothing wrong with that. What is unacceptable is if it is a secret, so we do need to tidy this up and, clearly, the commissioner has that view.  

There are a few other matters which I will not refer to today, but one is the code of conduct for members of parliament. Interestingly, the Premier has made a statement to the parliament indicating that in response to the commissioner's annual report he has tabled a statement of principles and it is consistent with the statement of principles that was recommended arising out of the 2003 report— chaired, I think, by Mr Gazzola and which has been the subject of applications for support by a motion of the late Hon. Bob Such.  

Again, I will not traverse that because it has been tabled, but what I wanted to say was that I am advised that recently the commissioner, in reporting to the parliament, has indicated, as the Premier had, that in some way this statement of principles is to be treated as a code of conduct. I do not share that view. I was on the committee. It may indicate a list of things members of parliament should abide and which they should acknowledge are part of their responsibility as an effective member of this parliament, but neither the committee nor I on this side of the house accept that it is a code of conduct. It is not a code of conduct, and that was made very clear at the time of its publication from the report.  

The reason it is important is that my understanding is the commissioner has made comment to the effect that, if he felt there were a breach of this code of conduct in some way, it could be the basis of a privilege motion back to this house. I think implicit in that was that it was something he would refer to us or to the Speaker. If that is the case, I think we need to make it abundantly clear that, if there is conduct (whether it is in breach of a statement of principles or indeed any other conduct) that a member of this parliament presents to the Speaker and the Speaker finds that there should be some precedence attached to that, then that is a matter for the Speaker and then of this house. It is not a matter for the commissioner of ICAC or anyone else.  

On the basis that that is acknowledged and agreed upon, I think we can move forward on that and I would hope, as soon as the Premier is ready to deal with that matter, that we can move on. I think the commissioner needs to be clear about what his responsibility is in that regard or what limits he is at, because he is the investigator, not the arbiter. Perhaps his considerable experience in other fields and in previous occupations gives him certainly the learned experience to be able to assist the committee he was reporting to and indeed our parliament, but we just have to make sure that he does not overstep the mark in respect of what his responsibility is in that regard.  

Finally, I just come to the situation for reporting. I thank the commissioner and the registrar of the commission, Ms Patricia Christie, who is active in the operations of the commission. Both the commissioner and Ms Christie have, I understand, given reports to the government from time to time and have generously provided time in briefings in respect of the bill and the progress of their work, and I have appreciated that. I appreciate that these reports are filled up with all sorts of statistics and glossy pictures, which is nothing new—I will not blame the commissioner for that—but what information is in it has been quite helpful and provides, obviously, the appropriate audited summary of the financial accounts.  

What it does not provide, and I think this is something we need to have some understanding about in respect of the importance of the commission reporting to the parliament, is what has happened with the prosecution of briefs that have been sent to the DPP and the outcomes. This annual report is silent in that regard.  

I will use what occurs in New South Wales as the example in this regard. I know the government has not embraced everything in relation to the model that operates there, and we will agree to disagree on this, but the ICAC in New South Wales does provide a running schedule of ICAC prosecution briefs that are with the DPP and also a separate schedule on the prosecution outcomes. To the best of my knowledge, we do not have the ICAC commissioner stand up in other jurisdictions next to the police commissioner and give media conferences and things of that nature when they refer a matter off for prosecution; they do it quietly and they do it, obviously, as part of their duty.  

However, there is a level of accountability that is published on the website and regularly updated, as to the progress of those matters. It includes names, but what it does not do, very appropriately, is identify where an investigation has been undertaken and there has been no outcome from that, to the extent of no indication of the need to refer it to prosecution, because there have been insufficient findings to advance it past that. Obviously, they disappear. They do not have a public component, and we would not ever be asking for that because, again, that is the nature of an investigation.  

It is the same as with the police, to be honest. Where they are investigating matters and they find that someone has a rational explanation for their whereabouts, for example, and they are no longer a suspect in respect of a matter, that information disappears from the public point of view, and that is as it should be, in our view. However, where there has been an investigation by ICAC and it has resulted in a referral to the DPP, part of the process of accountability in respect of the 
effectiveness of ICAC, in my view, is to have a regular publication of that information as to the prosecution and, secondly, the outcomes of those prosecuted matters. I think that is something we could learn a valuable lesson from.  

We will continue to listen to the commissioner. Obviously, he has the capacity and responsibility to account to our committee that has been convened in the parliament. Of course, he also has access to the Attorney, myself and probably any other member of parliament, seeing as he is accountable to the parliament, but we will listen to his advice as to how this new entity is progressing. It is pleasing to note that, although we might have been a bit Johnny-come-lately as far as actually enacting an ICAC in this state, with the government kicking and screaming for the first few years, there is clearly a role to play and it has resulted in the uncovering of some concerning behaviour. I will not make any further comment on that, because obviously that is going through other processes. Nevertheless, the commissioner has also been invaluable in identifying in his annual report some very significant deficiencies of other areas that need to be dealt with, some legislative and some others.  

I also place on the record my appreciation of the commissioner providing a report in respect of the Whistleblowers Protection Act, which has been tabled more recently. I am not quite sure why its tabling was delayed but, nevertheless, we have it. I was pleased to note that that report included a recommendation that, when someone who is in the whistleblower category has reported an act or conduct that is concerning, where there has not been action by the government in respect of that, in certain circumstances there will be a capacity to be able to report those matters to a member of parliament, and indeed the media.  

It is fair to say that information sometimes goes to someone higher in the department, such as the chief executive, a minister, ministerial staff or the cabinet, so there are plenty of opportunities for behaviour that ought to be acted upon by a government to actually have some remedy. It is very concerning to me, and clearly to the commissioner in his review of this act, that there are circumstances where someone's plight in this regard in trying to expose some unacceptable behaviour is left covered in silence and there is not any remedying of the situation—and that is unacceptable.  

It needs to be flushed out and there need to be mechanisms for that to occur when there has been either a serious neglect across to a cover-up of information that is legitimately brought to the attention of those in charge and it is not acted upon. We were so concerned about this type of situation prevailing that when we went to the 2010 election we even recommended this policy that there be the introduction of a provision for whistleblowers to go to the media after a fixed period of months when there has been no action and to be able to have some protection against a wrong being exposed.  

The government must deal with these matters and, if they are without merit, they can easily be dealt with to the extent that at least there has been some action on them and they have been disposed of, but people have a responsibility to bring these matters to attention and they should have a reasonable expectation that the behaviour that they are reporting is actually looked into, considered and acted upon where appropriate. With those few words, I commend the bill to the house for its support.