Attorney-General (SA) v Corporation of the City of Adelaide (the Street Preachers Case).

The AACL and the AIAL are jointly presenting two seminars to explore the administrative and constitutional issues emerging from the decision.

Seminar 1:  The Scope of Council By-Law Making Powers After the Street Preachers Case

Michael Roder SC, Howard Zelling Chambers

Date:            14 May 2013

Time:           1-2pm

Venue:        Pilgrim Hall,12 Flinders Street

RSVP:          10 May 2013 to Sarah Mitchell: mitchell.sarah@agd.sa.gov.au

 Seminar 2:  Freedom of Political Communication After the Street Preachers Case

Luci Byers & Mike Wait, Crown Solicitor’s Office

Date:            29 May 2013

Time:           1-2pm

Venue:         Pilgrim Church,12 Flinders Street

RSVP:          24 May 2013 to Sarah Mitchell: mitchell.sarah@agd.sa.gov.au

* Please ensure that you specify in your rsvp which seminar(s) you wish to attend.

In Australia, integrity and accountability of the exercise of public power are now core principles that we associate with a democratic government under the rule of law. A myriad of mechanisms are in place to oversee government action and provide redress to those affected by it. However, one of the difficulties that these mechanisms face is that they are often on the outside looking in. One of the most important mechanisms in an accountability framework therefore is the protection of those within the public sector who have disclosed inappropriate behaviour they have witnessed. Whistleblowers find themselves in an extremely vulnerable position, facing a bewildering potential range of civil, criminal and administrative liabilities.

There are legitimate reasons for governments to protect public secrets and information in some instances. A balance must be struck that encourages and protects persons making disclosures about conduct that they bona fide believe is wrong, but prevents abuse of that system which may unnecessarily hamper efficient and effective government.

In Australia, the States and Territories have all implemented whistleblower protection regimes. The Commonwealth, however, has held out. There is limited protection afforded by s 16 of the Public Service Act 1999, which protects a member of the public service from victimisation or discrimination because they have reported breaches of the APS Code of Conduct.

On 21 March 2013, the Commonwealth Government introduced the Public Interest Disclosure Bill into Parliament. Clause 6 states that the objects of the Act are:

(a) to promote the integrity and accountability of the Commonwealth public sector; and

(b) to encourage and facilitate the making of public interest disclosures by public officials; and

(c) to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and

(d) to ensure that disclosures by public officials are properly investigated and dealt with.

While the objects are lofty, in a submission to the Senate Legal and Constitutional Affairs Committee inquiry into the Bill, we (Gabrielle Appleby, Judith Bannister and Anna Olijnyk) highlighted a number of concerns about the protections actually offered to potential whistleblowers under the legislation.

It is clear that the Bill’s primary focus is to encourage persons to make internal disclosures about inappropriate conduct. An internal disclosure must be to an ‘authorised internal recipient’, which includes authorised officers within agencies, the Ombudsman and the Inspector-General of Intelligence and Security. It is only if the investigation conducted following an internal disclosure is ‘inadequate’ that a whistleblower may make an external disclosure – for example to a journalist. The whistleblower must be sure, among other things, that the investigation of the internal disclosure was ‘inadequate’, as defined in the legislation, and that ‘the disclosure is not, on balance, contrary to the public interest’.

We agreed with concerns that have been expressed elsewhere about the exclusion of the conduct of Ministers, the Speaker of the House of Representatives and the President of the Senate from the definition of disclosable conduct in the Bill; and the exclusion of conduct that is connected with intelligence agencies. History has demonstrated that it is often the conduct of these officials that transgresses appropriate boundaries. These concerns have been well canvassed elsewhere, see for example, Suelette Davis’ piece on The Conversation. As such, we focussed on other shortfalls of the legislation.

Our major concern is the complexity of the scheme – both in terms of the process that must be followed to ensure an individual enjoys the protections afforded under the legislation and also the legal tests that must be satisfied. By its nature, this complexity militates against disclosures being made. An individual who is contemplating ‘blowing the whistle’ would find it extremely difficult to determine whether they would be protected under this legislation. 

We recommended a number of changes to the Bill, including changes to simplify the legal tests involved (particularly the legal tests that must be satisfied before a protected disclosure may be made to an external source), and to assist persons who are seeking to make a disclosure, or whistleblowers who have to bring or defend actions in court.

Our full submission can be accessed here.

Media reports indicate some recent controversies have arisen in the City of Adelaide regarding trees growing within the confines of the city. First there was the axing of an avenue of 105 year old White Cedar trees behind the Adelaide Oval redevelopment to make way for a carpark. Now debate is raging about the proposal to remove the shade trees from Rundle Mall to facilitate a redevelopment of the Mall to open it up to encourage people to come and shop there more often. Trees will play an increasingly important role in Australian urban environments particularly given the predicted increase in temperatures as a consequence of climate change. Australian cities receive a significant amount of solar radiation. Adelaide, capital city of the driest State in the driest inhabited continent on earth now experiences long hot summers and relatively dry winters. With climate change the city and State as a whole will face significant adverse impacts including less rainfall, more extreme weather events such as sudden violent storms and flash flooding and more hot days each year.

Based on a trajectory of mid-range greenhouse gas emissions in 2030, the average number of days a year over 35 degrees C is projected to increase to 21-26 and the average number of days a year over 40 degrees C is projected to increase to 3-5.[1]

Urban trees are and will be important because they provide shade and aesthetic improvements to our streetscapes, privacy, shelter for fauna and humans during inclement weather and contribute to biodiversity and the overall maintenance of a healthy ecosystem. They also help address what has been called the ‘urban heat island effect’.[2] Urban areas are hotter than the surrounding unbuilt and undeveloped areas for a range of reasons. There is a significant heat release from human activities within those urban areas from building heating and cooling systems, public transportation systems, vehicular traffic and energy use within commercial and residential buildings. There is less of an albedo effect which results in shortwave radiation being absorbed within the dark surfaces of roads and buildings rather than being reflected back into the atmosphere resulting in a build up of heat within the urban area. The greater preponderance of impervious surfaces results in less natural soil and vegetation thereby reducing evapotranspiration and latent heat cooling.[3]

With the exception of urban trees listed or protected under State heritage legislation few cities in Australia have regulatory controls to simply protect trees. South Australia was an exception. In April 2000 the State Government introduced the concept of a ‘significant tree’ into the land use planning system controlled under s 4 of the Development Act 1993 and made ‘tree damaging activity’ within the area of metropolitan Adelaide a form of development for which development approval under the Act was required. These changes were accompanied by a Ministerial policy amendment to all council Development plans to ensure that there were provisions in place against which proposals for tree damaging activity could be assessed.[4] Outside of Metropolitan Adelaide there are no controls over the pruning and removal of non-indigenous vegetation although there are strong vegetation clearance controls for indigenous vegetation through the provisions of the Native Vegetation Act 1991. Thus substantial exotic trees outside the metropolitan Adelaide area are not protected unless given designation as a State or local heritage place under either the Heritage Places Act 1993 or by a development plan. There are, for example some magnificent species of fig trees in a number of South Australian country towns which if unprotected can be removed without any approvals or community consultation. A good example are the massive old but still very healthy fig trees in the public squares in the historic heritage townships of Wallaroo and Moonta on Northern Yorke Peninsula. Similar examples can be found in many other SA country towns.

The original significant tree controls designated trees as significant either because they were listed as such in a council development plan[5] or if they met prescribed criteria, namely, that they had a trunk with a circumference of 2 metres or more or, in the case of trees with multiple trunks, that they have a total circumference of 2 metres or more and an average circumference of 625millimetres, measured at a point 1 metre above natural ground level.

The provisions worked reasonably well given the intention was to stop developers removing perfectly healthy suburban trees simply to facilitate development without any consideration of alternative design solutions that might have resulted in the tree’s preservation. There were some issues. If the tree was a healthy specimen and posing no unreasonable risk to persons or property it was often very difficult to obtain clearance approval, particularly when the tree made an important contribution to the character or amenity of the local area.[6] Furthermore, councils were increasingly requesting that applicants seeking development approval for tree removal and pruning provide expensive reports from arborists and landscape specialists in support of their application. The existence of trees which were classified as significant trees on existing residential allotments under the previous controls would often be seen to hamper the redevelopment of those allotments for more intensive forms of development or create significant costs for developers as they sought alternative design solutions to accommodate those trees. Increasing the density of residential development in the Metropolitan Adelaide area is part of the State government’s overall strategy for development in South Australia[7] and there was an obvious inconsistency between the two policy positions. There is also a perception that the State Labor government (particularly under the leadership of former Premier Mike Rann) was beholden to the development industry which can be seen to have had particularly favourable treatment in a number of areas of State planning policy and legislative enactments.[8]

It was therefore a combination of factors which lead to the enactment of major changes to the significant tree provisions, the Development (Regulated Trees) Amendment Act 2009, which came into operation in November 2011. These changes have relaxed the controls potentially facilitating a much greater level of urban tree removal. At the time the controls came into operation the Planning Minister, The Hon. John Rau said:

The changes are designed to balance protection of trees with the need to remove inappropriately located trees and inappropriate tree species for reasons such as public safety. The intention is to provide greater clarity for people wanting to undertake reasonable and expected development or to remove inappropriate trees for legitimate reasons, while also providing appropriate protection for trees that give Adelaide much of its character.[9]

What do the changes do? First they create a concept of ‘regulated trees’ which are trees with the 2 metre circumference requirements previously applying to ‘significant trees’. Significant trees will in future be trees declared as significant by a council’s development plan or trees with a circumference of 3 metres measured at a point 1 metre above natural ground level. Development now includes any tree damaging activity to a regulated tree. Tree damaging activity includes the killing or destruction of a tree, tree removal, severing of branches, limbs, stem or trunk of a tree, ringbarking, lopping or topping of a tree and any other substantial damage to a tree. At times excavation work associated with building construction, such as for a pool or dwelling may sever significant roots of trees and therefore come within that definition on the basis it comprises ‘other substantial damage to a tree’. Acceptable pruning of regulated trees which is excluded from the definition is pruning that does not remove more than 30% of the crown of the tree; and is necessary to remove dead or diseased wood, and branches posing a risk to life or property.

On first glance the changes might appear acceptable. However, there are a range of exceptions which in my opinion significantly undermine the efficacy of these planning controls as an urban tree protection mechanism. First, unless trees are Willow Myrtles or of a Eucalypt species, even if they meet the measurement criteria, they will not be regulated trees if they are located within 10 metres of an existing dwelling or an existing in-ground swimming pool. Secondly, there is a list of exotic tree species, many which have been traditionally grown in the Adelaide area since European settlement in 1836 which can also be removed or pruned without approval, as can trees effectively listed as pest plants under the provisions of the Natural Resources Management Act 2004,[10] even though they may meet the measurement requirements for regulated trees.

All development applications have to be assessed against the relevant development policy contained in council development plans. With the initial introduction of significant tree controls, the Planning Minister authorised an amendment to all council development plans to introduce policies against which applications for approval to undertake tree damaging activities could be assessed. With the changes to the legislation he introduced a Development Plan Amendment to add to, and, in some places, alter those existing policies. The Regulated Trees Development Plan Amendment came into operation on an interim basis on 17 November 2011. Public consultation followed and on 15 November 2012 the Development Plan Amendment (DPA) was authorised without any apparent changes despite many representations, some of which made sensible suggestions for changes to the policy. During that interim period the policy provisions were operative and planning applications for tree damaging activities had to be assessed against the new policies. Query whether the fact the DPA was finally authorised by the Minister without any changes means public consultation on planning policy in South Australia is a largely perfunctory process these days. If so, it does not augur well for future planning in the State and the right of the community to have input to how the areas within which they live, work and recreate are developed.

The Regulated Trees DPA continues the previous policy criteria for the removal of significant trees. Thus tree damaging action in relation to significant trees should not be undertaken except in circumstances where the tree, is diseased and its life expectancy is short; or it represents an unacceptable risk to public or private safety; or it is within 20 metres of residential tourist accommodation or an otherwise habitable building and is a bushfire hazard within the relevant development plan’s Bushfire Protection Area or it is shown to be causing or threatening to cause, substantial damage to a substantial building or structure of value; and all other reasonable remedial treatments and measures have been determined to be ineffective. Further, it must be demonstrated that all reasonable alternative development options and design solutions have been considered to prevent substantial tree-damaging activity occurring.[11]

For the new category of regulated tree the policy provisions are similar although there is more emphasis on the balancing of development (presumably of the built form) and preservation of regulated trees. However, in the new policy there is a significant variation from the significant trees criteria in terms of when regulated trees can be removed or damaged in Principle of Development Control 2 (d). It provides that removal or damage may be appropriate when ‘development that is reasonable and expected would not otherwise be possible’. It is not clear what this means. There appears to be no objective criteria for determining what is ‘reasonable’ development. Nor does the policy explain by whom or what the development is expected? Perhaps it is meaning development that the development plan expects within a particular zone or policy area. This would be extremely broad criteria. The policy as expressed gives planning authorities a very broad discretion as to when they authorise the removal or damage to a regulated tree. The protection ultimately afforded to trees classified as regulated trees and not significant trees is minimal.

The South Australian government’s 30 Year Plan for Greater Adelaide included climate change Policy No 13 which says:

Create a more liveable urban environment through the establishment of a network of greenways, tree-lined streets and open spaces, which will have a cooling effect on nearby new neighbourhoods and new buildings.[12]

The drafters of the DPA said:

The DPA supports this policy by protecting trees that would be likely to have a tall height or large canopy. This in turn could result in an increased cooling effect in areas prone to the urban heat island effect. The legislation’s allowance for the establishment of urban tree funds also facilitates the creation of designated areas (potentially greenways and open spaces) for the planting of replacement trees that will be legally protected.[13]

These comments are correct, however the DPA also enables a greater number of urban trees to be removed, which cannot help to minimise the urban heat effect. It contemplates replacement trees which will, in time, also help with mitigating the urban heat effect, nevertheless there is a period of time after removal of the original trees during which the effect is likely to be more pronounced. Furthermore, where large trees have been removed from land and replaced by more intensive built form, replacement trees are rarely likely to provide the same level of canopy coverage.

The changes to the significant trees controls have increased the complexity of the rules and requirements in this area of land use planning law. Somewhat ironically, despite that increased complexity they afford less protection to trees in the urban landscape. In particular many of the exotic trees commonly planted on the Adelaide plains and in the foothills are no longer protected by law. An example is the London Plane tree, a popular street tree planted by many metropolitan local government authorities since colonial times. These trees currently make a significant contribution to the character and amenity of the Metropolitan Adelaide area as well as contributing to a reduction in the city’s urban heat bank. While in the longer term, climate change adaptation requirements will require us to plant more climate and water sensitive indigenous trees and vegetation rather than exotic foreign species, there should still be protection mechanisms in place for such species for the time being. Under the new regulated trees provisions it will be easier to obtain development approval for the removal of many trees in that category. Without careful management in the longer term, if tree removals increase accompanied by increased urban densities we will have a future metropolitan area that is warmer and less attractive.

In terms of reducing energy use for artificial cooling of buildings and reducing the overall output of urban generated heat preventing urban tree removal is a modest yet worthwhile measure for mitigating and adapting to the effects of climate change. Urban tree protection controls in South Australia were originally driven by a desire to protect habitat and for character and amenity reasons. However, with the increased awareness and knowledge of climate change and its predicted impacts the role that urban trees play in moderating temperatures within urban areas and buildings has become increasingly apparent and accepted. It is therefore a retrograde step for the State government to undertake major amendments to the controls on urban trees which facilitate a greater level of urban tree removal.

Paul Leadbeter is a Senior Lecturer at the Adelaide Law School. He has written a chapter on the relaxation of urban tree removal controls in Adelaide in an upcoming book celebrating the work of Emeritus Professor Adrian Bradbrook, which will be published by the University of Adelaide Press later this year.

On Thursday 19 and Friday 20 July 2012, the 2012 National Administrative Law Conference will be held at the National Wine Centre in Adelaide. The theme of the conference is ‘Integrity in Administrative Decision-making’.

In 2004 Chief Justice Spigelman delivered the Australian Institute of Administrative Law (AIAL) National Lecture Series about the fourth branch of government, the integrity branch. This Conference will provide an opportunity to consider the concept of the integrity branch, the institutions that constitute it and its health in 2012. In addition to addressing these and related topics the Conference will also review the state of administrative law in the Commonwealth, States and Territories.

Further information on the conference, including the full program and registration details, can be found here.

Last week, Fair Work Australia (FWA) President, Justice Iain Ross of the Federal Court, was calling for FWA to be covered by two Bills currently before the Parliament, the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. Justice Ross’ proposal is currently under consideration by the federal Minister for Workplace Relations Bill Shorten. I think that Justice Ross’ calls highlight an important oversight in the current processes, but I would like to see the government give greater consideration to how to bring accountability and transparency to the tribunal system before simply extending the judicial complaints process, limited as it must be, to tribunals.

The Bills establish two separate systems. The Parliamentary Commissions Bill allows for the Parliament to establish a parliamentary commission to investigate allegations of misbehavior or incapacity against a judge and recommend back to the Parliament whether evidence exists which may be capable of being regarded by the Parliament as misbehaviour or incapacity. The Judicial Complaints Bill formalises the role of the head of the court (the Chief Justice of the Federal Court, the Chief Judge of the Family Court and the Chief Magistrate of the Federal Magistrates Court), giving each the power to ‘handle’ complaints made about the performance by another judge in his or her judicial or official duties. (The Bills are currently before the Senate Legal and Constitutional Affairs Committee, you can read about the Adelaide Law School’s submission to the Committee on some earlier blogs here and here).

Tribunals and Courts

In our justice system, many people now settle their disputes in the non-judicial arena using the extensive tribunal system. This largely reflects the length, cost and formality of seeking redress in the courts. If the government’s policy is to bring greater accountability and transparency to the broader justice system, it makes sense at one level to extend the proposed measures to the tribunal system.

Justice Ross’ comments pick up on many similarities between FWA and the federal judiciary. Particularly, under s 641 of the Fair Work Act 2009 (Cth), the Governor-General may terminate the appointments of FWA members on an address of both Houses of Parliament on the grounds of proved misbehaviour or physical or mental incapacity. This section largely mirrors the guarantees of tenure for federal court judges in s 72 of the Constitution (although other sections allow for suspension of a FWA member, and removal on other grounds, which is not mirrored in the judicial setting). FWA is not alone in sharing these traits with the courts, similar provisions protect, for example, the tenure of the members of the Administrative Appeals Tribunal and the Australian Human Rights Commission.

The Parliamentary Commissions Bill

Given the similarities between the removal provisions between FWA members and the judiciary, there is a strong argument that the Parliamentary Commissions Bill should apply to these (and other) tribunal members as well. Although, even without expressly bringing these members under the Bill, the Parliament would be able to establish a committee to investigate a tribunal member in the same way on an ad hoc basis.

The Judicial Complaints Bill

Whether tribunals should be brought under the Judicial Complaints Bill is, however, a more difficult question. There are important differences between the bodies. Tribunals are quasi-independent from the Executive. They are established by legislation and while they may have statutory protections of tenure, this is not the same as the constitutional protection of independence guaranteed to the federal judiciary.

The Commonwealth faces constitutional limitations in introducing measures for handling complaints against the federal judiciary because of the constitutional protections of independence. For example, it would probably be constitutionally impermissible to establish an independent oversight body (that is, one not composed of judicial officers) with the power to discipline judges. This is the type of body that has been introduced in New South Wales, where the separation of powers is less strict than at the federal level. As the federal government operates within constitutional restraints when legislating for the federal judiciary, the mechanisms introduced in the Judicial Complaints Bill are a good compromise. They add greater transparency and accountability to the courts without breaching the limits in the Constitution. If, however, the constitutional limitations did not apply, other options would be available for consideration.

The constitutional restrictions do not apply to tribunal members. Tribunals are situated somewhere between the courts and the Executive. Tribunals are not subject to administrative oversight mechanisms such as the Ombudsman, or the Public Service Commissioner. As such, calls for a process that introduces greater transparency and accountability for these bodies correctly identifies a hole that should be plugged.

However, before the Government extends the Bill to cover tribunals such as FWA, it should consider whether an external, independent oversight body would be a better option. Such a body would be able to be entirely independent of the tribunal system. Such a proposal also avoids the question about how to deal with complaints against the head of the tribunal, which is a deficit in the current Bill.

Why extend the proposed judicial complaints-handling system, limited as it must be by constitutional restraints, to tribunal members? Why not consider the matter with fresh eyes? All options are available to the government if it decides to tackle the challenge of bringing accountability and transparency to an important part of our justice system.

Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School. She recently co-authored a submission to the Senate Legal and Constitutional Affairs Committee on the Parliamentary Commissions and Judicial Complaints Bills.

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)).

Concluding Comments

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).