Earlier this month (May 2012), the South Australian Weatherill Labor Government introduced a Bill to establish an Independent Commissioner Against Corruption. This is a move that had been opposed by the Rann Government for years. Gabrielle Appleby explores the change in policy, before looking to the Bill itself. She focuses on the extent to which the Bill balances the rights of individuals reporting to and appearing before the Commissioner, against the Commissioner’s broad coercive powers, and how the Government has sought to achieve the balance between ensuring the Commissioner’s independence from government and the need to maintain accountability for the exercise of its powers.
Calls for South Australia to establish an independent anti-corruption commission have been made by many and often. In 2010, an embattled Victoria Government announced it would adopt an Integrity and Anti-Corruption Commission in the wake of a series of scandals over the conduct of senior police officers. This left South Australia as the only state in Australia without a specialist anti-corruption commission. An anti-corruption commission would be able to undertake investigation of corruption and maladministration by public officials that the current investigatory agencies are not equipped to do. For example, the Ombudsman and the Police Complaints Authority, while often effective, are limited as they both lack substantive investigative and referral powers.
The Rann Labor Government had long been an opponent of an anti-corruption commission. In 2010, Opposition member Stephen Wade introduced a Bill to establish an Independent Commission Against Corruption; but the Rann Labor Government did not support it then and the Bill stalled in the Legislative Council.
However, since then, South Australia has had a change of Attorney-General, with John Rau replacing Michael Atkinson after the election in March 2010. In October 2011, Jay Weatherill replaced Mike Rann as Premier. These changes in leadership brought the opportunity for fresh ideas and retreat from previously entrenched positions. In May 2012, the Government introduced the Independent Commissioner Against Corruption Bill 2012 into the House of Assembly. Unlike Victoria, the South Australian Government is not embattled by allegations of corruption forcing its hand, making the introduction of the Independent Commissioner Against Corruption (ICAC) a proactive, positive story for the Government. The purpose of the Bill is to meet community expectations of openness and accountability in public administration.
The Independent Commissioner Against Corruption Bill 2012
The 2012 Bill establishes an Independent Commissioner Against Corruption (ICAC) and the Office for Public Integrity (OPI). The Commissioner’s functions are threefold (clause 6). First, the Commissioner is to identify and investigate corruption in public administration and refer it either for prosecution, or to the Police or Police Ombudsman for investigation and prosecution. Secondly, the Commissioner is to assist inquiry agencies (including, for example, the Ombudsman, the Police Ombudsman or the Commissioner for Public Sector Management) and public authorities to identify and deal with misconduct and maladministration in public administration. Assistance takes several forms, including giving directions and guidance and evaluating practices, policies and procedures. (Interestingly, it also seems that the Commissioner can exercise the powers of an inquiry agency in respect of a matter referred to it – so the ICAC could refer a matter to an inquiry agency, and then conduct the inquiry (clause 35(5)). This sits uncomfortably with the concept that the ICAC investigates and refers matters for action.) Thirdly, the Commissioner is to conduct educational programs designed to prevent or minimise corruption, misconduct and maladministration in public administration. While the ICAC may investigate any issue, the Bill indicates its primary objective is to investigate serious or systemic corruption in public administration (clause 6(2)).
The key terms are defined in clause 5:
Corruption in public administration is criminal conduct by a public official, this includes offences under the Criminal Law Consolidation Act 1935 (which includes bribery or corruption of public officers; threats or reprisals against public officers; abuse of public office), the Public Sector (Honesty and Accountability) Act 1995 and the Public Corporations Act 1993.
Misconduct in public administration means contravention of a code of conduct by a public officer while acting in his or her capacity as a public officer that constitutes a ground for disciplinary action against the officer; or other misconduct of a public officer while acting in his or her capacity as a public officer.
Maladministration in public administration relates to conduct by a public officer that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources or involves substantial mismanagement in relation to the performance of official functions.
Public officers are listed in Schedule 1. The list includes members from the judicial and legislative arms of government (including members of Parliament and judicial officers), as well as the executive arm (including statutory authorities, local governments officers, public servants, public sector workers and police officers). As with many contemporary accountability mechanisms, the Bill extends to contractors working for a public authority or the Crown, in recognition of the increased contracting out of government services that occurs.
The OPI assists the ICAC as a ‘one stop shop’ for complaints. Its functions are to receive and assess complaints and reports about public administration (whether from the public, or inquiry agencies, public authorities or public officers) and make recommendations as to whether and by whom the complaint or report should be further investigated (clause 15).
Powers: Balancing Powers to Investigate Crimes with Protecting the Rights of Individuals
The Commissioner has substantially the same powers as the Australian Crime Commission, on which the South Australian ICAC is based. This includes sweeping investigative powers. The Commissioner may issue a warrant to enter, search, seize and retain property (other than in a private place, which requires a warrant from a Supreme Court judge) (clause 29). It is an offence to obstruct an investigation with a maximum penalty of $10,000 fine or 2 years imprisonment (clause 31(1)). An investigator may arrest a person without warrant in the course of an investigation if the investigator reasonably suspects the person has, is or will, obstructing an investigation, or committing other offences under the legislation (clause 31(2)). Although not yet introduced, the Attorney-General has also indicated the Government will sponsor the Telecommunications (Interception) Bill 2012 that will allow use of telephone intercepts by the ICAC.
The ICAC also has the power to undertake examinations in the course of an investigation (Schedule 2). In relation to corruption, an examiner can issue summons for persons to appear, and to produce documents. Failure to comply with directions of an examiner can result in contempt and giving false or misleading evidence in an examination is an offence with a maximum penalty of $20, 000 or four years imprisonment.
These sweeping powers give rise to questions about how they are balanced against the need to protect the rights of individuals appearing before the Commissioner, and those who report conduct to the ICAC.
Examinations are conducted in private, and persons giving evidence before an examiner are entitled to legal representation. In an examination, legal professional privilege still applies. The privilege against self-incrimination doesn’t apply, but any answers or documents provided are not admissible in evidence against the person in most criminal or civil proceedings provided they claim the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.
Persons making complaints and giving evidence are protected under the Bill from possible reprisals. It is an offence to prevent, hinder or obstruct another person from making a complaint or report (clause 19). It is also an offence to cause detriment to another because they have made a complaint or report, or intend to make a complaint or report, under the legislation (clause 55). An examiner has power to make arrangements (including with the Police) to protect any person appearing at an examination, or furnishing information (Schedule 2).
Balancing Independence and Accountability
The Government has attempted to balance the ICAC’s independence with some form of its own accountability. This is important, particularly in light of the sweeping powers granted to the Commissioner. In terms of independence, the Bill provides that the Commissioner cannot be directed in relation to any matter under the Act (clause 6(2)). The Commissioner’s independence is also secured by tenure (clause 7). Removal is not possible except on address of both Houses of Parliament (although the Governor can suspend the Commissioner and this requires an address from either House of Parliament for the Commissioner’s reinstatement). The Commissioner must be a legal practitioner of at least seven years, or a former judge, and is appointed for a fixed term. The Commissioner is eligible for reappointment but cannot hold office for consecutive terms that exceed 10 years in total.
In terms of accountability, the ICAC will have to report annually to Parliament (clause 43), and the Attorney-General must appoint a person to undertake an annual review of the exercise of the Commissioner’s powers (clause 44). These reports will be reviewed by a new joint Committee – the Crime and Corruption Policy Review Committee (clause 45). The Commissioner is also directed to perform his or her functions in a manner that is as open and accountable as is practicable (clause 6(4)).
In short, the Government must be commended on its move to introduce an ICAC to South Australia, although it has been a long time in the making. The Bill performs many delicate balancing acts: between sweeping powers of investigation and protection of vulnerable witnesses and whistleblowers; and between the competing issues of independence and accountability. Perhaps one advantage of waiting so long is that South Australia has been able to look to other jurisdictions for guidance in achieving these balances.
Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School. She is currently writing the next edition of ‘Law and Order’ with Professor John Williams, to be published in State of South Australia (edited by John Spoehr).