Recent Posts

Tags

ICAC (Investigation Powers) No 2 Amendment Bill

The Hon. J.A. DARLEY (12:18): I rise to speak on the Independent Commissioner Against Corruption (Investigation Powers) No. 2 Amendment Bill. The bill follows another similar bill that was introduced by the government last year. The opposition had a number of questions about the bill and moved to refer the bill to a committee for further investigation. This was done and the final report made a number of recommendations. The government have accepted most of these recommendations and have included these changes to produce this new bill.

The key aspect of this bill is to give the commissioner the discretion to hold public inquiries for matters relating to misconduct and maladministration. It does not concern corruption matters. Investigations regarding corruption will not be able to be held in public under this bill. The commissioner must be convinced that there is public interest to hold the inquiry in public. I support the idea of allowing the ICAC to hold public inquiries and have done so for a number of years, ever since the commissioner publicly called for the power to hold public inquiries. I commend the work the government did in opposition on this matter but also the work of the Hon. Dennis Hood.

The secrecy provisions in South Australia's ICAC Act are amongst the strictest in the country, and I would have hoped that members in this place take notice of what the commissioner is asking for in terms of legislative reform. After all, the Hon. Bruce Lander is best placed to be able to advise the parliament on which parts of the act are working well and which parts need change and why.

There has been indication previously that, if he had had the ability to hold public inquiries, he would have elected to do so when investigating matters such as the Oakden nursing home scandal and the sale of state-owned land at Gillman. There was clearly a lot of public interest in these matters. Whilst I hope that we will never experience similar misconduct or maladministration again, I suspect I would have rose-coloured lenses on if I believed this would actually be reality.

The interstate open ICAC investigations have exposed alleged corruption matters concerning MPs and senior public officials. In some cases, these have led to criminal charges. Clearly, when elected officials are concerned, there is a public interest in these matters. This bill seemingly fulfils the government's election commitment to move a bill to allow the ICAC to hold public hearings for matters concerning misconduct and maladministration. However, it should be noted that the current commissioner, the Hon. Bruce Lander QC, has indicated that, should the bill pass in its current format unamended, the provisions in the bill would mean he is unlikely to ever hold a public inquiry. As such, after consultation with the commissioner, I have made a number of amendments to the bill.

The bill outlines that parties affected by the commissioner's decision may appeal to the Supreme Court to determine whether the commissioner's decision to hold a public inquiry was properly made. Affected persons can also apply to the person heading the investigation to not disclose or publish information. If the person heading the investigation refuses, this can be appealed to the Supreme Court. The commissioner has raised a concern with these parts, as it may mean that parties that are affected by an open investigation may use the court process to frustrate and delay the investigation.

There is also concern that the commissioner may need to disclose information on which the investigation is being relied upon as part of the court process. In effect, this would render the investigation useless. Having such provisions would seriously make the commissioner reconsider having open investigations. If appeals to the court are made, the process would likely mean that any investigation would be fruitless, and therefore the commissioner would rarely opt to hold an open investigation. In the words of the commissioner, these changes would only give the illusion of open investigations rather than practically allowing for open investigations to occur.

Similarly, the bill requires the commissioner to advise on their website and in a newspaper that they intend to hold a public inquiry. This notice needs to be published 21 days in advance of the commencement of the public inquiry and will need to contain information regarding the subject of the inquiry and why they believe it is in the public interest to conduct the investigation in public.

The commissioner has raised concerns that some of the information that is required to be published will interfere with the investigation, as information that is being relied upon for the investigation will be disclosed. As such, I have filed an amendment, which will give the commissioner the discretion to not disclose certain information if they believe it will prejudice the investigation. As mentioned before, I have moved these amendments in consultation and on the recommendation of the ICAC commissioner. It will not make the bill perfect, but it will go some way to address the concerns he has raised and at least provide a workable framework for public hearings.

In a briefing on this bill earlier this week, the commissioner made it very clear that, if the bill were to be passed unamended, the whole purpose of the bill—that is, to provide for public hearings—would not be met because he would not be comfortable holding public hearings under these terms. The commissioner went one step further and said, if the opposition's amendments to the bill were to pass, it would severely hinder his ability to conduct investigations privately, too, therefore rendering his office largely ineffective.

As such, I indicate I will not be supporting the opposition's amendments and urge my colleagues to support my amendments to allow the commissioner to do what is intended by this bill—to hold public hearings. I support the second reading of the bill.

Follow

Contact

08 8237 9114

Address

Parliament House
Adelaide, South Australia 5000

Some rights reserved. Authorised by J. Darley, Parliament House, SA 5000

©2017 BY JOHN DARLEY.