The hasty introduction and passing of a Bill which has drastically altered the structure, functions and power of South Australia’s Independent Commissioner Against Corruption, has dominated media coverage in recent weeks. The changes come at the same time as an ICAC investigation interstate has led to the resignation of former NSW Premier, Gladys Berejiklian, and a continual debate rages as to the merits of a national ICAC.
Given the pace at which this recent Bill progressed through both Houses of Parliament, many within the profession and wider community may have an incomplete understanding of the Bill and its implications.
This explainer attempts to provide a non-exhaustive summary of the context of the Bill, its brief consideration in the Parliament and some of its implications for the identification of, and investigation into, corruption, misconduct and maladministration in public administration in South Australia.
What is ICAC?
South Australia’s Independent Commissioner Against Corruption was a statutory office created by the Independent Commission Against Corruption Act 2012 (SA) (ICAC Act).
Under the enacting legislation, the ICAC had the ability to identify and deal with “corruption”, “maladministration” and “misconduct” in public administration. As summarised by the ICAC itself in its 2020-2021 Annual Report, its purpose was to
Preserve and promote public integrity in public administration through proactive prevention and education initiatives, the investigation of corruption in public administration, and the investigation or referral of misconduct or maladministration in public administration.
The Office of Public integrity was established alongside ICAC with functions to assess and receive complaints about public administration and reports of misconduct, maladministration and corruption. It was also required to report such matters to ICAC or refer complaints as approved by ICAC.
Since ICAC’s inception, there have been two people appointed to the role of Commissioner.
The Judicial Conduct Commissioner was introduced via a separate Act at the same time. Until September 2021, the role of Judicial Conduct Commissioner was also held by the person who had been appointed to the role of Commissioner under the ICAC Act.
What led to these changes to the Act? Who was consulted?
The Bill comes after the Crime and Public Integrity Policy Committee’s Inquiry into matters of Public Integrity in 2020 which considered the roles of the three statutory offices being the ICAC, the Ombudsman and the Auditor-General.
The Committee received submissions from 16 organisations/people and held 14 public hearings which included representatives from the Law Society, SAPOL, the ICAC and the Ombudsman. Tabled by SA Best Legislative Council Member, Hon Frank Pangallo in December 2020, the Committee’s Final Report made 17 recommendations as to the functions of the ICAC and various other organisations.
The Bill itself was introduced into South Australia’s Legislative Council by Mr Pangallo on 25 August 2021. During the Second Reading Speech, Mr Pangallo noted the Bill was necessary and timely and designed to make ICAC a “more streamlined and more effective corruption-busting tool and, importantly, a more accountable integrity body than it has been.”
The Bill was brought back on for further debate in the Legislative Council on 22 September 2021 and passed that same day after 19 pages of amendments were tabled and subsequently supported. The following day, the Bill was introduced into, and passed, the House of Assembly.
The Society is unaware as to the full extent of the public and stakeholder consultation on this Bill, however did receive a copy of the Bill from Mr Pangallo’s office on 14 September 2021, after it had been introduced into Parliament. The Society was not advised of a required timeframe to consider the Bill, though it had indicated a submission could be provided by the October sitting week. However, before a submission could be put together, the Bill had passed the Parliament and was awaiting assent.
Concurrently, a Parliamentary Committee, which commenced on 2 December 2020 and is also chaired by Mr Pangallo, continues to inquire into “damage, harm and adverse outcomes” resulting from ICAC investigations. Former Commissioner Hon Bruce Lander QC appeared before this Committee on 27 September, after the changes to the ICAC Act had passed Parliament.
How does this Bill alter the powers of ICAC?
Essentially, the Bill renames, restructures and redefines the powers of ICAC.
The Bill removes the title and office of Commissioner and as a result, ICAC becomes the Independent Commission Against Corruption.
ICAC’s powers and responsibilities have also been revised so that it only handles matters of serious and systemic corruption, removing its powers to inquire into misconduct and maladministration in public administration. The power to deal with maladministration and misconduct is now conferred on the Ombudsman via amendments to the Ombudsman Act 1972 (SA).
Other changes to the ICAC Act ensure ICAC is unable to investigate matters to which Parliamentary Privilege applies (for example, documents tabled in Parliament).
The Office for Public Integrity will continue, but becomes a separate entity and is no longer required to report to ICAC. The Office for Public Integrity will receive and assess complaints about public administration from the public and assess reports of corruption in public administration, or other matters which should be dealt with by an inquiry agency. In receiving these reports or complaints, the Office for Public Integrity is to consider whether they raise a potential issue for ICAC (being issues relating to corruption) or another agency, or whether the report/complaint is trivial, vexatious and should not be furthered.
The changes also create the role of Inspector, to replace the reviewer under the previous Act, who is to conduct annual reviews examining the operations of the Office for Public Integrity and ICAC during each financial year.
There are also changes to cater for and limit harm to those who are subject to ICAC investigations, such as an ability to disclose a summons to close family members, legal practitioners, doctors and psychologists. Public Statements made by the Minister, ICAC or the Office for Public Integrity, must not disclose that an investigation is about to start or is ongoing, or advise whether a person has been referred for further investigation and potential prosecution.
How was the ICAC Bill amended during Parliamentary debate?
During debate in the Legislative Council, 19 pages of amendments were tabled, some of which supplemented parts of the Bill and others of which were more in the nature of technical amendments. The Legislative Council considered, and supported a range of amendments to the initial Bill which included:
- An amendment to the offence of “Abuse of Public Office” in the Criminal Law Consolidation Act 1935 (SA) to provide a qualifier that the offence does not apply in relation to the use of information by Members of Parliament in the course of, or for the purposes of the proper exercise of the functions of a Member of Parliament.
- Strengthening the changes to the ICAC Act to remove ICAC’s power over matters to which Parliamentary privilege applies, by expressly noting examples such as statements made or documents or material tabled in Parliament or a Parliamentary Committee.
- Requiring that the Office for Public Integrity’s system for complaints ensures consideration is given to the motives of the complainant and/or whether complaints are apparently made in bad faith or for an improper purpose.
What is the defined meaning of “corruption”, “maladministration” and “misconduct”, and have these changed?
It is essential to understand these three definitions and how their scope and operation has been affected by the changes to the legislation.
ICAC can now only inquire into “corruption in public administration”, with its powers pertaining to “maladministration” and “misconduct” removed. While ICAC retains its original power in this regard to inquire into “corruption”, it is important to note that the definition of this term has also changed in this process, with the effect of restricting ICAC’s reach in this context.
The definition of “corruption” includes offences against a range of different Acts, which, until this Bill, included offences against Part 5 of the Criminal Law Consolidation Act 1935 (SA). However, the recent Bill carved out those offences from this definition. The practical implication of this change is that a whole suite of dishonesty offences now fall outside of ICAC’s reach to investigate in the context of public administration, including:
- Money laundering
- Dishonest dealings with documents
- Dishonest exploitation of position of advantage
The terms “maladministration” and “misconduct” have been moved to the purview of the Ombudsman Act 1972 (SA) and, as a result, ICAC’s remaining responsibility in this area appears to be simply referring such matters to the Ombudsman. While the definition of “maladministration” remains unchanged, it is important to note changes to the definition of “misconduct” mean that term now requires a “serious and intentional” contravention of a code of conduct.
Does this Bill have any implications for other pieces of legislation?
The changes to the ICAC Act also have potential implications for South Australian legislation which exists to protect those who make certain disclosures of information in the public interest, commonly known as “whistle-blowers”. The scope and operation of the Public Interest Disclosure Act 2018 (SA) (PID Act) has been affected by the changes to the ICAC Act, with potential consequences for whistle-blowers in South Australia.
The PID Act creates a framework for the protection and investigation of disclosures made to "relevant authorities" which identify certain public administration, health or environmental issues. There is some overlap between the mandatory disclosure requirements under the ICAC Act (which required public officers to report conduct which met the reportable threshold of corruption or “serious or systemic” misconduct or maladministration to the ICAC) and the protections offered for disclosures made in the context of the PID Act, which can be made to a range of different "relevant authorities" depending on the nature of the information being disclosed.
Of particular relevance in this context is the ability for “public officers”, who make up a significant cohort of the South Australian community, to be protected from liability which might otherwise arise if they disclose “public administration information” under the PID Act.
The definition of “public administration information” under the PID Act is information that raises a potential issue of “corruption”, “misconduct” and/or “public maladministration,” with these three terms defined in the PID Act by reference to their respective definitions in the ICAC Act.
It is important here to consider the object of the Public Interest Disclosure Act, being:
“To encourage and facilitate the disclosure, in the public interest, of information about substantial risks to public health or safety or to the environment and about corruption, misconduct and maladministration in public administration by ensuring that proper procedures are in place for the making of such disclosures and by providing appropriate protections for those who make such disclosures and to ensure that there is appropriate oversight of public interest disclosures about corruption, misconduct and maladministration in public administration.”
Given the altered definitions of “corruption” and “misconduct” (outlined above), the meaning and scope of that conduct for the purposes of protected disclosures now differs from what it was when the PID Act was drafted and implemented.
The definition of “misconduct” has a higher threshold as a result of the changes made by the recent Bill, but the practical impact of that change is at present uncertain. The new, arguably narrower definition of “misconduct” is yet to be tested in Court and so it is not yet clear what the implications of that change might be in the context of whistle-blowers seeking to rely on the protections in the PID Act in reporting potential misconduct.
The alteration to the definition of “corruption” is simpler in terms of its potential consequences, namely that for the purposes of the PID Act, corruption no longer includes any of the dishonesty offences under the Criminal Law Consolidation Act 1935 (SA), and so disclosures by public officers to relevant authorities about those offences may no longer come within the PID Act's ambit and whistle-blowers may be left open to potential liability or unable to rely on protections against victimisation as a result.
The Society is currently unaware as to whether Members of either House of Parliament knew of the implications for the PID Act when the changes to the ICAC Act made, or indeed whether there is another proposal contemplated which might address this issue. However, it is notable that this Act was not referenced at all during the Parliamentary Debate in relation to the Bill, and the Bill only makes minor inconsequential amendments to the PID Act (such as replacing references to the ICAC Act with references to the Ombudsman Act where required).
The prospect of sweeping changes to one Act disproportionately affecting another piece of legislation, with potential consequences including disincentivising people to seek the protection of the law to expose corruption and misconduct, is concerning. It emphasises the need for proposed legislation to be subject to critical analysis and consultation so that potential consequences can be identified and changes made to prospective legislation to avoid any which are not intended.