South Australia’s incoming Independent Commissioner Against Corruption says he plans to use his powers to make public statements about corruption cases – particularly if allegations are raised under the protection of Parliamentary privilege.

While the ICAC legislation makes it an offence for the public to identify a person who is the subject of a corruption complaint, MPs will be still be protected by Parliamentary privilege.

Incoming commissioner Justice Bruce Lander said that statements in Parliament about corruption might prompt him to use his powers to make public statements about the details of investigations, which will otherwise remain secret.

“In parliament, if questions were asked that indicated a claim of corruption, and the answers were unsatisfactory, it may not be appropriate to let the matter lie there,” Lander told InDaily this week.

“It may be appropriate at the end of the investigation to announce what the result was. At other times it might be appropriate to say something about a matter before the commissioner.

“Say the claim was that ‘Minister X has been guilty of corruption’ or ‘it’s a well-known fact that the minister is being investigated for corruption’ – it might be appropriate to make a statement, depending on what was said.”

He said if he felt a statement was needed to maintain public confidence in the Government or the Commissioner’s role, he would be prepared to talk about evidence gathered during an investigation.

Lander, a Federal Court judge who will take up his position as Commissioner when the anti-corruption body opens its doors on Monday, September 2, is beginning a public education campaign about his new role.

He has been briefing media on the powers of the anti-corruption body that he will oversee, including the unusual quirk that there isn’t actually a “Commission”.

The legislation establishes an Office of Public Integrity headed by an Independent Commissioner Against Corruption. So ICAC really stands for the position, not the body – a potential nightmare for headline writers.

Lander is pressing for greater understanding of his role and powers – and the implications for the public and the media if they breach the ICAC Act.

The following information is taken from a paper written by Lander, and an interview with InDaily.

Definition of corruption

Lander says corruption includes offences such as bribery and abuse of public office, but the Commissioner’s powers will also allow him to investigate any offence committed by a public officer while acting in a public capacity.

“This would include offences of a kind which would not come within the ordinary description of corruption,” he said.

While the primary task of the Commissioner is to investigate “serious or systemic corruption in public administration”, he could take over investigations from SA Police of other offences if they are committed by public officials.

This makes the Commissioner’s jurisdiction potentially very wide.

“It extends to persons who were, but are no longer, public officers,” he said.

Office for Public Integrity

The OPI is responsible to the Commissioner. However, all complaints about corruption, misconduct and maladministration in public administration must be made to the OPI – not the Commissioner.

The Commissioner can initiate investigations without a complaint or report.

It is an offence to make a false or misleading statement to the OPI, or to make a complaint or report “knowing that there are no grounds”.

The OPI will assess the complaints and make recommendations to the Commissioner.

“If the matter is assessed as raising potentially an issue of corruption that might lead to a prosecution, the matter must either be investigated by the Commissioner or SAPOL or the Police Ombudsman…”

However, Lander said he won’t be using his discretion to refer corruption complaints to SAPOL.

“You may assume that all matters that raise an issue of corruption that are reported to the Commissioner will be investigated by the Commissioner.”

The OPI will open its doors on Monday, September 2. It will have an online complaints process and a physical office in Currie St.

Investigative powers

The Commissioner has no judicial power and has no prosecutorial function – he is an investigator.

Lander says the Commissioner and his staff are a law enforcement body – like the Australian Crime Commission or SA Police.

He said the Commission’s standard operating procedures for investigations will be published on the OPI website.

If a decision is make to investigate a potential corruption case, the Commissioner must oversee the investigation.

“Investigators will report to me – nobody else,” Lander said.

With senior Police officer Grant Moyle seconded as Chief Investigator, he will have the power to issue a search warrant.

Public officers and authorities will be compelled to produce written statements about “specified matters” within “specified timeframes”. It will be an offence to obstruct investigations, and an OPI investigator is empowered to arrest a person without a warrant if he suspects a person has, or is planning to, obstruct an investigation.

The Commissioner can also order SA Police and other agencies from taking action in an investigation.

“That means the Commissioner can require SAPOL to step aside from an investigation and allow the Commissioner to proceed,” Lander said.

The Commissioner has the power to summon witnesses and take evidence, and it will be an offence for witnesses to refuse to answer questions or produce documents.

The lack of public hearings

Lander strongly supports the South Australian ICAC model, despite widespread criticism that it is too secretive, unlike similar bodies interstate which conduct public hearings.

He said people’s reputations can be destroyed by allegations that can’t be proven.

“At the end of the hearing, there will either be evidence sufficient to put the person whose conduct is under examination on trial or not,” he said.

“If there is such evidence, the evidence will be adduced in public at the person’s trial and the public will have the opportunity of judging the conduct of the person accused for itself. If there is not sufficient evidence to put the person on trial, the person will not have suffered the reputational damaged that would be occasioned by a public hearing.

“Public examinations should not be used to shame a person where there is not sufficient evidence to charge that person with a criminal offence.”

What can or cannot be published?

The Commissioner has the power to make public statements about his investigations.

However, for everyone else, there are penalties for revealing any information about complaints or ICAC inquiries.

It will be an offence to publish information “that identifies or tends to identify” a person about whom a complaint has been made, or information that might tend to identify a person.

Media or individuals must not publish the fact that a person has made, or is about to make, a complaint or report to ICAC, or identify people who have given, or are about to give, information or evidence under the ICAC Act.

In effect, only information made public by the Commissioner can be published about any ICAC matter, unless it goes to court.

Lander has written a paper on the role of the ICAC which will be published on the ICAC website soon.