Bruce Lander also wants the Independent Commissioner Against Corruption moniker ditched, the definition of “corruption” narrowed, the law’s controversial secrecy provisions amended and the establishment of a new Commission of Public Integrity, according to correspondence seen by InDaily.
In a letter sent to Attorney-General Vickie Chapman, the outgoing Commissioner – who will hand over the former Supreme Court Judge Ann Vanstone next month – details a range of reforms he wants implemented, including “a simple amendment” to a section of the state’s ICAC laws stipulating that his office can refer matters to a relevant public authority or law enforcement agency for further investigation.
The letter is dated last Friday, August 7.
That same day, District Court Judge Liesl Chapman handed down a bombshell finding that the ICAC had acted contrary to that same section of the Act in an investigation of former Liberal MP Troy Bell, who has pleaded not guilty to 20 counts of theft and six counts of aggravated dishonestly dealing with documents.
The judge found that the ICAC’s referral of the Bell matter “direct to the DPP with the provision of information and evidence at the time, was contrary to the ICAC Act”.
“The matter should have been referred to SAPOL for further investigation and prosecution… the involvement of the ICAC investigators in the prosecution of the charges once laid was beyond the functions of the ICAC,” she found.
She cited a section of the Act that states the Commissioner, on completing an investigation or at any time during an investigation, may “refer a matter to the relevant law enforcement agency for further investigation and potential prosecution [and/or] refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible”.
The judge said the “plain meaning of the text” of the ICAC Act “does not support a power invested in the ICAC to refer a matter for prosecution to a body which is not a law enforcement agency” and the DPP “did not submit otherwise”.
However, Lander insists in his letter to the Attorney-General that a different section of the Act prescribes him the statutory function “to identify corruption in public administration and to investigate and refer it for prosecution”.
“Alternatively I can ‘refer it to a law enforcement agency for investigation and prosecution’,” he writes.
“There is little doubt in my view that I am entitled to investigate corruption in public administration and refer the evidence I collect in respect of that investigation directly to the office of the Director of Public Prosecutions to consider the laying of criminal charges,” Lander continued.
“That must clearly be the case because of the express words used in [that section of the Act].
“Nevertheless it has been asserted that I am not entitled to refer a matter directly to the DPP because of the words [in the section cited by Judge Chapman].”
He argues, however, that the latter section is “clearly a facultative provision in that it facilitates the Commissioner’s ability to refer a matter to a law enforcement agency or a public authority either at the conclusion of an investigation or at any time during an investigation”.
He says the word “may” indicates this power is “discretionary”, arguing “when one considers the ICAC Act as a whole… such a referral is not the only way in which an investigation can be resolved”.
Nevertheless, he argues, “while I have no doubt that section [of the Act] is to be interpreted in the way I have explained, in an effort to avoid further argument (and in turn further cost) a simple amendment could be made… to make it clear that the words of that section do not detract from the Commissioner’s ability to refer a matter directly to the DPP.”
I recommend that the name of the office is changed and that South Australia move to the establishment of a public integrity commission
Lander did not comment to InDaily yesterday about Judge Chapman’s ruling which the Attorney-General’s office has indicated it will review.
The controversial suggestion headlines a range of reforms laid out in his correspondence to Vickie Chapman, a copy of which has been seen by InDaily.
“Perhaps most fundamentally I recommend that the name of the office is changed and that South Australia move to the establishment of a public integrity commission,” he wrote.
Lander argues that despite the common use of ‘ICAC’ as a shorthand way to refer to his office, “there is not and nor has there ever been an anti−corruption commission in South Australia”.
“Instead there is a Commissioner, a Deputy Commissioner, an Office for Public Integrity and the staff employed by the Commissioner,” he continues.
“In an effort to reduce confusion and for convenience we often refer to ourselves collectively as ‘the ICAC’ even though the ICAC is the Commissioner alone [but] to avoid unnecessary administrative costs we largely operate as a single organisation.”
However, he adds, “it is unnecessarily complex and confusing”.
Lander proposes returning to an earlier proposal for the state’s anti-corruption watchdog, and “calling the office that I currently hold the ‘Commissioner for Public Integrity’”.
“I think there is also good reason to establish a ‘Public Integrity Commission’, which would be headed by the Commissioner for Public Integrity,” he argues.
“I think the change in name would better reflect the broad functions and powers presently given under the ICAC Act and would establish a single agency, rather than the existing bifurcated and complicated system.
“It would allow the public to understand better the scope of the work that my office undertakes and also its purpose [which is] much broader than corruption alone.”
On that point though, Lander advocates “narrowing the definition of ‘Corruption’”, despite having “previously expressed reservations” about doing so.
“Nevertheless with the benefit of almost seven years’ experience I now think there is merit in narrowing the definition,” he writes, noting that the current “broad” definition in the Act “can lead to curious results”.
“For example, if a public officer commits a road traffic offence while acting in his or her capacity as a public officer that offence would be corruption for the purposes of the ICAC Act,” he writes.
Lander also wants changes to various secrecy provisions in the Act, which he says are “over-engineered”, with “too little regard for the public interest and too much regard to avoiding reputational harm”.
He also pushes again for “the question of public hearings will be reconsidered”, after a Liberal election pledge to allow open inquiries for maladministration matters was subsequently put in the too-hard basket.
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