Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (12:04): I rise to speak on the motion of the Attorney-General, which has been supported by the Premier today, and to confirm that it was on 17 July 2003 that we made a contribution to discuss at the time having a select committee to consider by both houses of parliament a code of conduct for members of parliament.
In October 2004 that committee concluded its deliberations and provided a report recommending that there be a statement of principles as outlined in the motion that is before us today. That committee comprised the Hon. John Gazzola (the Chairman), the Hon. Rob Lawson and the Hon. Nick Xenophon of the other place and me and the Hon. John Rau of this chamber. I think that there are only two of us still here in the parliament and, sadly, of course, we have lost the Hon. Bob Such—
Mr Picton: John Gazzola is still here.
Ms CHAPMAN: —not in this chamber—who was the Independent member of that committee. Can I say this: I have not heard, either from the Attorney-General who formally moved this motion that is now before us or from the Premier, as to why, firstly, there was a failure on the part of the government to move this motion ahead when the Hon. Bob Such moved this motion back in 2012, which I spoke to then encouraging the government to post haste move on with this motion and let us have a code of conduct, let us have a statement of principles.
Back in 2004 the Hon. Bob Such made it clear to this house that when we were doing that investigation already six jurisdictions around the country had a code of conduct or similar level of integrity rules that were to apply. He asked the government of the day to consider and support this motion to be progressed, and I am saddened that that was not sufficient to encourage the government to then progress it.
I am sad that he is not here today to be able to see us accept responsibility for what we are here for and to conduct ourselves in a manner consistent with these principles to those who elect us to office. I am very saddened by that, and at least we know that Mrs Such, I am sure, will be pleased, to see its passage.
However, just let us consider what happened post 2012 while the Such motion sat languishing on our Notice Paper with a failure of commitment from the government. Since then the newlyappointed Independent Commissioner Against Corruption, His Honour Mr Bruce Lander, prepared an annual report after the first part year of his operation, and he recommended to the parliament that it have a code of conduct.
Again he pointed out in his report—what appeared to be obvious to everyone and we all knew— that there ought to be a code of conduct. He made the observation that Public Service employees, police officers, protective security officers, elected members of local government, employees of local government, ministers of the Crown, all of them, had in one form or another codes of conduct. He made recommendations in his report at that stage back in October, I think it was, 2014, and he subsequently gave evidence to the standing committee of this parliament, the Crime and Public Integrity Policy Committee, setting out his position on that and answering some questions about it.
We had that evidence back on 31 October 2014. When the Premier finally indicated that he would move the motion himself in late 2014—again which languished on the papers before us, again which never got a vote, again which lapsed—we then have another commitment from his government that he is going to advance it. So, we welcome it. It might be 12 years later, but we finally have it.
I wish to place on the record two important pieces of correspondence that I have sought and received from the Attorney-General and from the Independent Commissioner Against Corruption to outline matters relating to what overlap or independence the area of responsibility the Independent Commissioner Against Corruption might have in respect of any misconduct on behalf of a member of parliament. In particular, what involvement, if any, would the commissioner have if there was any finding by a privileges committee of this parliament, for example, that there had been a failure to comply with a statement of principles? I read first the letter of 2 December 2014 from the Attorney-General:
Dear Ms Chapman
I refer to your letter of 21 October 2014 headed 'Statement of Principles — Members of Parliament'.
You have sought clarification of the Government's position on the role of the Independent Commissioner Against Corruption ('the Commissioner') in dealing with matters concerning misconduct by a Member of Parliament.
The existence or otherwise of a Statement of Principles or Code of Conduct of Members of Parliament is irrelevant to the exercise of the powers of the Commissioner. A complaint of misconduct made to the Office for Public Integrity and assessed to fall within the definition of maladministration, misconduct or corruption in public administration under the Independent Commissioner Against Corruption Act 2012 ('the Act') could be investigated by the Commissioner.
When the Commissioner appeared before the Crime and Public Integrity Policy Committee on 31 October 2014, he was asked by the Honourable Stephen Wade whether 'if something was misconduct in the g eneral sense by a Parliamentarian, it could be investigated by the Commissioner'. The Commissioner answered, 'I think it could be investig ated, but no disciplinary procedure could be taken by me because I don't have that power. It would go to the Privileges Committee to be [ deal t] with, I would have thought' (page 12 of the Transcript of 3 1 October 2014).
As you correctly point out, the decision to take a matter to the Privileges Committee is not made by the Commissioner. However, should the Commissioner determine a complaint about a Member of Parliament to be within the jurisdiction of the Act, the Commissioner could draw the matter to the attention of the House of Assembly or the Legislative Council as the appropriate public authority under Schedule 1 of the Act. The Commissioner could not, however, direct the House of Parliament in relation to the matter (see section 38(4) of the Act).
I hope this has helped clarify the matter.
The letter from the Independent Commissioner Against Corruption dated 9 December 2015 reads as follows:
Dear Ms Chapman
Statement of Principles for Members of Parliament
Thank you for your letter dated 4 December 2015. I have read the motion proposed by the AttorneyGeneral and the proposed Statement of Principles.
On Tuesday 10 November 2015 I appeared before the Crime and Public Integrity Policy Committee when the following exchange took place (based upon the draft transcript that I have been provided):
The Presiding Member: I note that at page 51 of your report you raise the issue of codes of conduct for both Parliamentarians and local government. In terms of state Parliamentarians, how would you see that being enabled and, for that matter, monitored. I would have thought that is a role for Parliament itself, and privileges committees generally come to mind.
Mr Lander: I think that's right. This is the only state that doesn't have a code of conduct for its members of parliament, as I understand it. I think that it would be in the public interest that Parliament did adopt a code of conduct or statement of principles, I think it was, that the Premier mentioned in 2014. If Parliament does adopt a statement of principles or a code of conduct it will be for parliament to ensure that its members behave in accordance with that; it won't be for me. I don't want to be seen to usurp the powers of Parliament. ¹
I remain of the view I expressed to the Crime and Public Integrity Policy Committee.
Parliament does, and should, have the power to deal with its own members. Indeed, Section 6 of the Independent Commissioner Against Corruption Act 2012 ('ICAC Act') provides that:
[n]othing in this Act affects the privileges, immunities or powers of the Legislative Council or House of Assembly or their committees or members.
I am obli g ed by Section 24 of the ICAC Act to deal with potential issues of corruption, misconduct and maladministration in public administration in particular ways.
Putting aside potential issues of corruption which I would ordinarily investigate or refer to another law enforcement agency to investigate, matters of misconduct or maladministration are to be dealt with by way of:
1. referral to an inquiry agency (being relevantly the Ombudsman or the Commissioner for Public Sector Employment (section 24(2)(a));
2. referral to the public authority concerned (section 24(2)(c)); or
3. Investigation by me using the powers of an inquiry agency (section 24(2)(b)).
First let me say I would not in any circumstances entertain a complaint or report relating to the conduct of a member of Member of Parliament in P arliament. I see that as clearly a matter for the P arliament.
I cannot envisage a matter concerning potential misconduct by a Member of P arliament that I would refer to an inquiry agency. Similarly, while I cannot foreclose the possibility, I think it highly unlikely that I would exercise the powers of an inquiry agency to investigate the conduct of a Member of P arliament. Certainly if it was a matter of potential misconduct or maladministration that was already being considered by Parliament , I would not be minded to interfere.
In the vast majority of cases of potential misconduct and maladministration in public administration , I refer the matter to the relevant public authority pursuant to section 24(2)(c).
Under S chedule 1 of the ICAC A ct the publ ic authority responsible for a Member of Parliament is the M embe r's House. It follows that if a compla int or report were made to the Office for P ublic I ntegrity relating to potential misconduct or maladministration concerning a M ember of Parliament , I would ordinarily refer the matter to the relevant public authority , which would mean I would be referring the matter to the House of A ssembly or the L egislative Council (depending on the H ouse to which the member belongs ) .
Section 38 (4) of the ICAC Act provides :
The Commissioner may not give directions to the to the House of Parliament or the Joint Parliamentary Service Committee in relation to a matter concerning a public officer.
Accordingly , even i f I were to refer a matter or potential misconduct or maladministration concerning a M ember of Parliament to the relevant H ouse , I could not give any directions to the H ouse concerning that matter. The action to be taken ( if any ) would be entirely for the H ouse , including the question whether or not the matter ought be taken to the Privileges Committee.
I trust this addresses th e matter raised in your letter.
I have no objection to you providing a letter to your Parliamentary colleagues.
The Hon. Bruce Lander QC
That is there now in the Hansard for the viewing of any future commissioner upon what one day I am sure will be the retirement of the commissioner—not something that I wish to occur in haste; many of us may go before that occurs—but, in any event, it is clear.
It is not to say that members of this parliament have not been the subject of scrutiny as a result of another role. There was a member of the other place who has in recent years traversed through the criminal prosecution courts, and some would argue, and I would be one of them to say that his involvement in that and subsequent conviction was a matter of great shame for me as a member of parliament to be, I suppose, lumped in that profession with someone who has now been convicted and is paying the price for a heinous crime, and I think it is a sad day when that happens. That is a criminal matter and it is independent of this. This is a separate matter; this is for members of parliament.
Similarly, but not in a criminal element to the extent of child pornography, the ICAC provided a report to this parliament on the Gillman land deal, about which many statements were made in respect of what were findings of maladministration among public servants and very significant criticism of the conduct of at least one minister of the government who is still with us, and the scathing report and findings in respect of the evidence given and the conduct of that minister, particularly toward public servants, is all on the record. It is a matter of record, and it relates to an inquiry in respect of a particular action. And, as a minister of the Crown at the time, namely, the minister for housing and urban development, that minister had to front up to the ICAC commissioner.
I mention both of those because they are recent examples of where there has been scrutiny of persons who are members of this parliament but they have a different role, or they have exercised conduct unbecoming in one area, and criminal in another—which is the best and most kind I could describe them as—of which they have received the appropriate attention of the authorities. I distinguish those, and we all should in this debate, as to action and relation to other authorities that deal with the criminal behaviour of a member of parliament.
Can I just say one other thing while we are commending the Hon. Bob Such for bringing to our attention important law. The Hon. Bob Such was also keen to ensure that we have legislation dealing with the sexting phenomena, which we debated back in 2012 along with this motion. That is, where we were having to deal with people who filmed or distributed images that were humiliating—they were disturbing examples at the time—the Hon. Bob Such urged the government to ensure that we have legislation to protect people against revenge texting and the like.
One thing he said at the time—and I supported him in this house, as did the Hon. Stephen Wade— was: 'Be careful when you draft this legislation that you don't inadvertently capture children who are offenders.' We do treat our children differently when they are offenders: we have a youth criminal justice system; we give them a fair go; we give them a second chance; and we treat them differently. And we should. The Hon. Bob Such was very strong on that point, and I endorse his comments which I have heard so many times outlined in this house.
It is a great disappointment to me that here we are again, an announcement was made by the government in the dying days of last year—I think it was 30 December, actually—when the Attorney-General finally said, 'Yes, I want to deal with revenge sexting, and I'm also going to tidy up this issue of how we might capture children who will end up on the Child Sex Offenders list.' He made a public statement at the time that there was no child on that list yet, thankfully, but that when he dealt with revenge texting he would do it; he would tidy this up so that we would make sure that children who were stupid in doing something were not unfairly put on the list.
The submissions finished on 5 February on the public consultation list, and we still do not have a bill from the Attorney-General. It is one thing to say that we recognise the significance or contributions of past members of parliament who have brought worthy recommendations to the parliament, outlined a persuasive case to justify legislative reform asking a government to act on it, and then years later it is not even dealt with, and I think that is shameful. I hope that the government wake up to themselves and advance not just this motion but the legislation in respect of revenge sexting and ensure that, when our children act stupidly they receive punishment, but are not branded with being listed on the Child Sex Offenders Register for life, which they do not deserve. May Bob rest in peace.