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Parliament to consider clipping ICAC’s wings

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UPDATED | A review into the operations of the state’s anti-corruption commissioner is set to recommend dramatically limiting the watchdog’s powers to investigate matters of maladministration, InDaily understands.

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State parliament’s Crime and Public Integrity Policy Committee has been inquiring into the functions and interrelationships between various state watchdogs, including the Independent Commissioner Against Corruption, the Auditor-General and the Ombudsman, with a report understood to have been finalised.

While it is yet to be released, it is likely to inform a legislative review of the controversial ICAC Act, with one of the key recommendations expected to be a move to curb the ICAC’s ability to investigate matters of maladministration and misconduct – which have comprised the vast bulk of Bruce Lander’s most publicly-visible inquiries.

Several insiders have suggested the report will recommend solving a long-standing demarcation dispute between the ICAC’s Office of Public Integrity and the Ombudsman, with members of both sides of parliament privately arguing the latter is better placed to investigate matters of misconduct and maladministration.

 InDaily has also been told the Attorney-General’s department is expected to prepare draft legislation to amend the Act, although Vickie Chapman’s office would only say that “the State Government will assess the need for a review of the ICAC Act after the Crime and Public Integrity Committee reports”.

Any move by parliament to limit the ICAC’s powers would prove controversial, particularly after Lander yesterday fired a parting shot at MPs in his final ‘Looking Back’ report, declaring parliamentarians were effectively immune from a finding of misconduct under the ICAC Act because they’re not bound by a Code of Conduct.

“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 said.

Lander, who next week hands the Commissioner’s role to Ann Vanstone when his seven-year term expires, has made several determinations of misconduct and/or maladministration, covering high-profile matters including the former Labor Government’s Gillman land deal, the Oakden aged care mental health facility and this week’s report into unwanted sexual advances by former Adelaide University vice-chancellor Peter Rathjen.

Responding to the latter, Rathjen’s lawyer Nicholas Iles said in a statement this week that it was “difficult to see what purpose has been served by Mr Lander’s investigation” and “the decision to investigate this matter underscores the urgent need to amend the ICAC Act to limit the role of ICAC to matters of genuine ‘corruption’”.

That appears to be a conclusion shared by influential voices on both sides of state parliament, who have told InDaily there would be bipartisan support for such a proposal.

Former Attorney-General John Rau has previously spoken about the need to hone ICAC’s investigative focus to corruption cases alone, telling parliament during a 2016 debate on an amendment to the ICAC Act that he wanted to clarify “the primary object of the Commissioner… to investigate serious or systemic corruption in public administration and to refer serious or systemic misconduct or maladministration in public administration to the relevant body”.

Rau told InDaily today he was still of the view that the ICAC’s fundamental role was to investigate corruption rather than maladministration and misconduct.

Debating the same amendment, now-Treasurer Rob Lucas ventured: “From my perspective… the title of this body, Independent Commissioner Against Corruption, was indeed what its focus should have been, should be and hopefully in the future will be: that is, its focus should be against corruption.”

To which now Opposition Leader Peter Malinauskas interjected: “Hear, hear!”

For his part, Lander has proposed instead formalising his office’s broader ambit by renaming it as the Commissioner for Public Integrity, and establishing a formal Commission for his successor to oversee.

In his ‘Looking Back’ report, he defended his office’s authority to investigate “serious or systemic misconduct or maladministration”, saying: “The ICAC Act assumes that matters raising a potential issue of misconduct or maladministration in public administration will be referred to an inquiry agency or public authority for investigation… however, the Commissioner is empowered to personally investigate a matter assessed as raising a potential issue of serious or systemic misconduct or maladministration in public administration.”

“Where the Commissioner decides to conduct an investigation into serious or systemic misconduct or maladministration, the Commissioner is not able to use the investigative powers provided for
 in the ICAC Act because those powers are preserved for corruption investigations,” he notes.

“Rather, the Commissioner must utilise the powers of an inquiry agency.”

This distinction led to an ongoing standoff with Rau when the then-Attorney-General frequently referred to Lander’s Oakden inquisition as an ‘Ombudsman’s inquiry” – much to Lander’s chagrin.

In yesterday’s report, Lander conceded that plainly, “the Commissioner must proceed along a convoluted path to be invested with powers to investigate serious or systemic misconduct or maladministration”.

“In my opinion it is appropriate that the ICAC Act continues to operate on the assumption that matters of misconduct or maladministration will be referred elsewhere.

“But the Commissioner should continue to have the power to investigate serious or systemic misconduct or maladministration…

“The mechanism by which the Commissioner conducts such investigations ought to be made simpler. I think the ICAC Act should be amended to enable the Commissioner to investigate serious or systemic misconduct or maladministration using the powers of a Royal Commission… together with the requisite power to make findings and recommendations and to publish those findings and any recommendations publically if it is in the public interest to do so.

He told a hearing of the Crime and Public Integrity Policy Committee earlier this year that “much of my work… concerns matters of misconduct and maladministration in public administration” and disputed that such matters had previously been the purview of the Ombudsman.

“The Ombudsman has never had jurisdiction to investigate misconduct or maladministration, and he still doesn’t,” Lander told parliament in May.

“The Ombudsman’s jurisdiction is limited to investigating administrative acts – that’s not misconduct or maladministration.

“The only way the Ombudsman can investigate misconduct or maladministration is if I refer those matters to him under the ICAC Act.”

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