In a submission to parliament’s crime and public integrity committee described by Liberal committee member Dan Cregan as “surprising” and having “considerable impact”, Law Society president Amy Nikolovski raises serious questions about both the current legal framework and proposed Government changes.
Her submission says the investigative power of the state’s ICAC is derived from the Ombudsman Act, but that proposed new Government legislation “seeks to remove the requirement for the Commissioner, when dealing with an investigation into matters raising a potential issue of serious or systemic maladministration or misconduct in public administration, to exercise powers of inquiry and agency”.
“As such, the Society considers that the present framework does not permit or give jurisdiction for the making of findings of misconduct or maladministration, pursuant to the definitions given to those terms in the ICAC Act, by either the Ombudsman or the ICAC,” she wrote.
“However, it remains a matter of some tension, as highlighted by the ICAC’s Gillman and Oakden Reports… that are tantamount to findings as to whether or not individuals have committed misconduct or maladministration.”
Nikolovski told a hearing of the committee today that under proposed new laws to allow public hearings into maladministration matters, “ICAC will become both investigator and decision-maker”.
Law Society policy lawyer Anna Finizio told the hearing the ICAC’s role was “to collate the facts and evidence and provide a report, as opposed to making a finding”.
She said the Society had not been consulted on amendments to the Government’s ICAC Bill, but expressed “concerns” about several elements of the legislation.
Lander disputed the Society’s interpretation under questioning today, as Labor frontbencher Tom Koutsantonis crossed swords with the Commissioner in a parliamentary hearing.
Koutsantonis said he believes parliament is headed for a “deadlock” on the proposed amendments.
In a sometimes terse exchange today, Koutsantonis suggested the Opposition would not support the latest iteration of laws to allow open maladministration hearings, amid “grave concerns” they do not give subjects appropriate rights to legal representation.
Labor opposed open hearings in government but has shifted that position since last year’s election. However, it stymied the Government’s first attempt to introduce its laws – instead referring the changes to the committee – and subsequently (and unsuccessfully) added a series of its own amendments to take more power from the hands of the Commissioner during open hearings.
The Government’s latest version of the Bill removes a clause giving “a person who is required to give evidence” the right to be represented “by a legal practitioner at any other examination of a person held for the purposes of the public inquiry”.
Commissioner Lander insists the right to legal representation is already embedded elsewhere in the Bill, but concedes he would have ultimate discretion.
“You must not treat an investigation like a trial, and you must not treat the ICAC like a judge,” he told Koutsantonis.
“If you’re going to give ICAC power to conduct investigations in public… you must allow the ICAC to run the investigation and direct the way the investigation goes.”
The committee is examining prospective reforms to the operation of the state’s public integrity bodies, with various submissions suggesting a lack of clarity on roles and responsibilities, and poor resourcing of offices whose workloads have increased since the introduction of the ICAC Act.
The State Ombudsman has told state parliament he needs an extra $500,000 a year to reduce a backlog created by new “unfunded” functions being foisted on his office, saying his budget is instead set to be “cut by 10 per cent over the next three years”.
“My Office has never been funded to undertake the work referred by ICAC [and] with the closing down of the Office of the Police Ombudsman in 2017, my Office has acquired [new] functions,” he wrote to the committee.
“These unfunded functions do have consequences for the timeliness of my investigation work… at time of writing, my office has a backlog of 23 investigations that were commenced more than 12 months ago.
“While this backlog is not extreme, it is lamentable especially given that timeliness is a fundamental characteristic of an Ombudsman.”
Police Commissioner Grant Stevens has also taken issue with the removal of the Police Ombudsman, saying it has prompted an explosion of complaints against police, with 882 in 12 months to September 2017 and 2406 in the 12 months thereafter.
“Whilst there has been an increase in the reports, there is nothing to support that police behaviour has deteriorated at all,” he said.
“Arguably the increase in complaints has not contributed to any improvement from the previous reporting system… it has however significantly increased SAPOL’s workload.”
He also blamed the commencement of the Office of Public Integrity, which the Commissioner oversees, and “the enthusiasm in which they receive and dispatch complaints, adding to them along the way”.
“With the entry of the ICAC and the resources allocated to it, it was assumed the workload of the anti-corruption branch would diminish as the ICAC took over the remit for significant investigations the branch had held until that time,” Stevens wrote in his submission.
“This has not proven to be the case.”
He says the definition of corruption under the Act is too broad, and “trivialises the concept of corruption and provides an unnecessary reporting regime for run of the mill offending which only contributes to bureaucracy”.
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