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"Lacuna of oversight": MPs in accountability vacuum, warns ICAC

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Parliamentarians are effectively immune from a finding of misconduct under the state’s ICAC Act because Parliament refuses to impose a Code of Conduct on its own members, the state’s outgoing anti-corruption commissioner argues.

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Independent Commissioner Against Corruption Bruce Lander, whose seven-year term ends on Tuesday, today released his final Looking Back report, a six-monthly roundup of his office’s operations with recommendations for future action.

In it, he laments that the current lack of a formal code of conduct for MPs “fails to inspire confidence”, arguing that “members of parliament and their conduct exist in a lacuna of oversight”.

“There is no principled reason that a member of Parliament ought not be the subject of a code governing their behaviour during their elected term,” he finds.

“The unique relationship between members of Parliament and their electorates should not be invoked as an argument against accountability.

“Misconduct and improper behaviour by members of Parliament does not need to be tolerated as the price for maintaining parliamentary supremacy.”

Lander recently instigated a broad inquiry into the alleged misuse of state parliament’s Country Members Allowance, having earlier begun a formal investigation into a number of unnamed MPs.

However, he revealed last week his inquiries had been frustrated by several MPs claiming parliamentary privilege over the release of key documents – warning the investigation will be a matter for his successor, Ann Vanstone, and may not be able to proceed.

Today, he noted that recent events “in the South Australian Parliament… have caused me to reflect upon the manner in which the conduct of Members of Parliament is assessed, managed and addressed” – and urging parliament to adopt a Code of Conduct for all members.

“The South Australian Parliament currently has no code of conduct by which to guide and regulate the behaviour of its members,” he noted – adding that was despite such a code having been proposed as part of the initial ICAC Bill in 2012.

“I could see no reason why Members of Parliament would regard themselves as excused from such expectations, and [have previously] urged members of Parliament to work together to establish a code of conduct to lay the foundations for acceptable conduct and to define a mechanism to deal with unacceptable conduct,” Lander argues.

“Eight years on there is still no code of conduct.

“In the meantime almost every other Parliament in Australia has established a code of conduct to regulate the conduct of its members.”

SA established instead a ‘Statement of Principles’ in 2016, which Lander backed on the basis that “at least some collective agreement had been reached”.

“However, in the wake of recent events, the degree to which the Statement of Principles adequately spells out what the community might appropriately expect from their elected officials is now open to conjecture,” he said.

“Where a Statement of Principles vaguely offers aspirational principles to guide behaviour, a code of conduct provides for agreed clear standards and rules by which behavioural breaches can be measured, and provides the justification upon which appropriate disciplinary action may be taken by the Parliament.

“A Statement of Principles provides no such robustness.”

In fact, he points out, “the Parliament was careful to ensure that its Statement of Principles would not have the status of a code of conduct when it inserted a provision in the ICAC Act which states that ‘a code of conduct does not include any statement of principles applicable in relation to the conduct of members of Parliament’”.

Lander argued that ‘misconduct’ under the ICAC Act means is defined as “a 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”.

“Members of Parliament are public officers for the purpose of the ICAC Act… however, the absence of a Code of Conduct applying to Members of Parliament means that a member can only be guilty of ‘other misconduct’, which is not better defined in the ICAC Act,” he said.

“Even if a member of Parliament were found to have engaged in misconduct, there is no properly defined mechanism for Parliament to deal with that misconduct.”

He argues that parliamentarians opposing a formalised code claim “there is a need to maintain the sovereignty and independence of the Parliament, which will ensure that Parliament may conduct its business as it sees fit” and that “the electorate is the final arbiter of the conduct of Members of Parliament and has the right to dismiss them from office at elections”.

“Undoubtedly the Members’ relationship to the electorate puts Members of Parliament in a
unique position,” he concedes.

“Some say democratic accountability is an inviolable principle which should not
be diminished, such as by way of a code of conduct.

“But while the electorate may be the final arbiter of the conduct of members of Parliament, there is no principled reason that a member of Parliament ought not be the subject of a code governing their behaviour during their elected term.”

Nor, he continued, “is there a principled reason why the improper conduct of a member of Parliament should not be dealt with by the Parliament”.

“Parliamentary supremacy would not be compromised by establishing a code of conduct and a well-defined mechanism for Parliament to deal with misconduct.”

Lander again argued he was within his rights under the Act to refer matters directly to the Director Of Public Prosecutions, after a recent district court finding that his office had breached the Act by doing so in the case against MP Troy Bell.

Lander says he has “little doubt that I am entitled to investigate corruption in public administration and refer the evidence I collect in respect of that investigation directly to the Director of Public Prosecutions for consideration of the laying of criminal charges”.

“Nevertheless given the matter had been raised in court I proposed an amendment to bring any ambiguity to an end,” he said.

“I was surprised by that [District Court] finding and a number of other findings made… in that matter.

“Those findings are now the subject of an application for the reservation of questions of law for the Full Court of the Supreme Court so I do not propose to comment further about those matters.”

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