BILL: ICAC investigation powers

Today Mark outline the Greens' support for the Government's Bill to provide the Independent Commissioner Against Corruption with the power to hold some hearings in public, and flagged Greens amendments.


Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018

The establishment of the office of the Independent Commissioner Against Corruption five years ago was a very long time coming. For years, the now opposition maintained the position that such a body was unnecessary. However, once the ICAC was established, I think we collectively knew that we would need to learn from experience and that further amendment to the legislation would be required. Various reforms were made in 2014 and 2016, and now we are back again.

This time, the primary objective of the reforms is to allow for the commissioner to hold public hearings in certain circumstances, particularly in relation to maladministration and misconduct. The Greens are supportive generally of providing the commissioner with this power. However, with increased power and responsibility comes the need for increased accountability. That is why the Greens have a number of amendments, which we have placed on file and which we will get to in detail later on.

There are a number of submissions that we have received in relation to this legislation that I want to refer to very briefly. The first one is not a formal submission, but it is, I think, a relevant document. It is the five-year review of the office of ICAC and the Office for Public Integrity. That requirement for a five-year review is set out in the legislation. The minister gave the job of writing the review to, of all people, the reviewer; it makes sense. The reviewer, the Hon. Kevin Duggan, prepared this report, which was tabled—I do not know if it has been tabled; I assume it has been tabled—in parliament, but it covers the period up to 24 November 2017.

In that report, the reviewer outlines the fact that in the original legislation there was no complaints mechanism available to people who were dissatisfied with the processes that ICAC or the OPI followed. He points out that the legislation has been amended to fix that up. He also points out—and goes into some detail—that this issue of being able to hold public hearings is something that does exist in other jurisdictions. To quote one paragraph from his report, he said:

I recommend that the Act be amended so as to provide that the default position in the case of hearings into misconduct or maladministration in public administration, is that they be held in private. However, it is my view that the Commissioner should be given a discretion to hold a hearing or part of a hearing in public.

I think the legislation should set out the grounds upon which the discretion is to be exercised.

He notes:

'It is significant that in Victoria, Queensland, Western Australian and now New South Wales, the discretion whether to order a public hearing is to be exercised by reference to criteria which is set out in the relevant legislation.'

So the person charged with overseeing ICAC and the Office for Public Integrity thinks that the discretion to allow public hearings is a good idea.

The second submission is from the Law Society of South Australia, which I will refer to briefly, and I thank them. They have a number of queries in relation to the legislation. Their submission goes for some nine pages and they have recommended a number of things that parliament should look at in more detail. I think we will need to come back to their submission when we get into the committee stage and start to look at the bill in more detail.

I mentioned earlier that the Greens' view is that with increased power and responsibility should come increased accountability. We know that it is an ongoing process. I mentioned before that there was not much in the original legislation. It was changed in 2016 to give the reviewer the ability to take complaints directly. But the question that has concerned me is: how does that work in practice? Unless you are a lawyer or a member of parliament, it is actually incredibly difficult to find out how you go about lodging a complaint about ICAC or the Office for Public Integrity.

It is easy enough to lodge a complaint or make a report to ICAC, but it is very difficult to work out how you make a complaint about ICAC. Also, there are no records, to my knowledge, that have been published about how many people have made complaints about ICAC and what happens to those complaints. I suspect that many of them will go nowhere, and that is not a criticism of the reviewer because the role of the reviewer is not to be an appeal body or a second bite of the cherry. It is not the reviewer's job to second-guess every decision of the commissioner or the Office for Public Integrity, but there is an important role to be played in relation to the processes that are followed and how the commissioner's extensive powers are used, especially their coercive powers. I have drafted a number of amendments that go to that point.

I forwarded my amendments—they were filed, so all members of parliament get them—specifically to the Attorney-General's advisor and also to the shadow attorney-general. Somewhat flippantly, perhaps, I included in my email a line from a popular action series on television:

Your mission (should you choose to accept it) is to put yourself in the shoes of a member of the public, visit the ICAC website and find out how to make a complaint about ICAC…

In the event that there are other people listening to this or reading the Hansard later who might want to take up the challenge, there is a spoiler alert coming: I am going to tell you how to do it. It is possible because the link is there but it is well buried. It is not on the front page. You either have to go through the fine print at the bottom of the web page and find the site map and then you have to scroll down about three pages—and even then it is not clear where the link is—or you can go to the drop-down menu on the home page. You then have to go to the 'About Us' page. Then you have to look for another button called 'Accountability' and once you have clicked on that button you will eventually get a link to the independent reviewer's web page. Once you are on that page, you will then find another link called 'Making a Complaint'. I am pretty computer savvy but it was well enough hidden that I absolutely struggled to find how to go about making a complaint, if I wanted to—which I do not—about ICAC.

I also sent a copy of my amendments to the reviewer, the Hon. Kevin Duggan. I am very grateful to him that on very short notice he did find time to send me back some feedback. I will go into his response in more detail when we get to the clauses to which they relate in committee, but I think it is probably fair enough for me to say now that he was generally either supportive or neutral as to what I was trying to achieve, but he did think that some of the amendments were unnecessary because he thought they were already being implemented. We can explore whether that is, in fact, the case.

There were other amendments that he was, I think, quite reasonably nervous about, that he thought might result in an unreasonable expectation on the part of the community as to what the reviewer was actually able to do, given the provisions of schedule 4 of the act. I think there is, perhaps in the reviewer's mind, a fear of the floodgates argument coming true, but I am sure that is something we can deal with.

The final thing I want to say in relation to this bill is that, in spite of the fact that the Greens are generally supportive of giving the commissioner the power to hold some hearings in public, I understand that there will be at some point a motion to send this bill to the parliamentary Crime and Public Integrity Policy Committee for review and for report back to parliament. I want to put on the record that, if such a motion were to be moved, I think that is an excellent idea.

Members with whom I have discussed these matters over the years would not find it unusual that my position has always been that, in complex pieces of legislation, we should be sending more rather than fewer of these bills to committees where we can hear directly from experts. I am a big fan of scrutiny of bills committees. If we do not have a general committee to scrutinise bills, we should at least take the opportunity of the specialist committees that we have, and occasionally we will set up select committees.

However, in this case, there is a ready-made committee that already has responsibility for ICAC and the Office for Public Integrity, so I think it does make sense to send it to that committee. I do not sit on that committee, but I would urge those members who do to get the commissioner and the reviewer in to ask them about the bill. I would also appreciate if they could be asked about the amendments that have been filed, including mine, to get their views on it.

I think the Law Society should be invited in. It has made a nine-page submission and it has concerns about aspects of it, so let's get them in. There might even be some room, bearing in mind that I would anticipate a fairly short hearing, for some critics out there who probably deserve to be heard. Members who read InDaily may have seen a week or so ago an opinion piece from a local young solicitor with the heading, 'Why aren't alarm bells sounding over ICAC changes?' I do not know this particular lawyer—I did ring him up and we had a bit of a chat on the phone; I have not met him—but he raises some interesting points. It may well be that he would be someone who would appreciate the opportunity to explain why he feels there are concerns about the bill.

I think that sending this to a committee is a very good idea, and I think it could ultimately save time for this chamber when we come back after the winter break, because it may be that some of the amendments can be supported by consensus—we will perhaps have some answers there. There may be other amendments that need to be abandoned, and there will be yet others that we have not even thought of that will come out of the evidence and findings of the committee.

I have not discussed this with the government. My experience of governments—well, of the other persuasion—is that generally they are not fans of sending things to committees, especially if they think they either have the numbers or are close to having the numbers to get it through without that, but I think this is too important. I do not think that there is urgency involved. We have been talking about legislating for open hearings of ICAC for at least four years. I do not think another month or two will make much difference.

I hope that, if it does end up going to the committee, it will look at it quickly, that it will not drag its feet, and I would expect that we will be back here in this chamber going through the bill again very soon after the winter break. That would at least be my hope. Whilst I know there is no motion before the chamber, word in the corridor is that this might be a move that is forthcoming, and I am anticipating now that that is something I would welcome. I think it would make a lot of sense. Apart from that, as I say the Greens are generally supportive of the thrust of the bill, and we look forward to its more detailed consideration, I hope after the winter break.