In a tense and bitter debate in parliament this morning, Labor used its numbers to defeat a Liberal bill that would have allowed ICAC inquiries into potential maladministration to be held in public when the commissioner deemed it appropriate.
Lander claimed yesterday such a power was essential to ensuring the “integrity” of his investigation into the disgraced Oakden Older Persons Mental Health Service.
The Government originally sought to shut down debate on Shadow Attorney-General Vickie Chapman’s bill by moving an adjournment – which Speaker Michael Atkinson emphasised was standard procedure under standing orders. However, the party then allowed the bill to be brought forward, duly killing it off with the support of independents Frances Bedford, Martin Hamilton-Smith and Geoff Brock.
Newly-independent Liberal Duncan McFetridge was not present for the vote, but manager of Opposition business John Gardner tweeted that he was paired and his vote “effectively counted in support of the Bill”.
To keep hearings secret in circumstances of maladministration in our public authorities I find galling and quite sickening
But in opposing the bill, Deputy Premier John Rau went to great pains to restate that the ICAC investigation was an “Ombudsman’s inquiry” – despite Lander yesterday taking “strong issue” with the characterisation.
“I’m very disappointed that the Government have characterised this as an Ombudsman’s investigation – it’s nothing of the kind,” he told InDaily at the time.
“The investigation is being carried out by me as the Independent Commissioner Against Corruption, using the powers given to the Ombudsman under the Ombudsman’s Act – which effectively means the powers under the Royal Commissions Act… I’ve had numerous conversations with the Deputy Premier about the powers under the act, and it’s especially disappointing he would characterise it in that way.”
But Rau was evidently unmoved, arguing that under legislation the ICAC could exercise the “powers of an inquiry agency in respect of a matter raising potential issues of misconduct or maladministration in public administration”.
“The agency in this context is the inquiry agency, namely the Ombudsman,” he emphasised.
He cited the legislation as providing that the ICAC would have “all the powers of the agency” and be “bound by any statutory provisions governing the exercise of those powers”.
“So we are really clear: as a matter of law the commissioner remains in title the Independent Commissioner Against Corruption… however, inasmuch as the commissioner is exercising a power pursuant to [the Act], I repeat, the commissioner has all the powers of the agency – in this case, the Ombudsman – and is bound by any statutory provisions governing the exercise of those powers as if the commissioner constituted the agency.”
He then argued that the Ombudsman was bound by law to conduct every investigation in private.
“So here we have a situation where we have a proceeding which, but for the exercise of jurisdiction under section 36A of the Independent Commissioner Against Corruption Act, would be dealt with by the Ombudsman,” he said.
“If it were dealt with by the Ombudsman it would be a matter which, as a matter of law, would have to be conducted in private.”
In an interview with Lander yesterday, InDaily asked how the commissioner would respond if the Government persisted with its “Ombudman’s inquiry” terminology – a term he believed could devalue or undermine his investigation.
“I don’t think there’s any recourse I can take [but] I can continue to be offended,” he said.
“It won’t affect the way in which the investigation’s carried out, because that would be inappropriate… but I would be grateful if the Government ceased referring to this as an Ombudsman’s inquiry.”
Chapman told parliament it was “quite disturbing” that Rau had sought to vote down her bill, which would have allowed for public ICAC hearings on matters on maladministration.
“For the first law officer of the state to stand in this parliament and say that he is going to keep hearings secret in circumstances of maladministration in our public authorities I find galling and quite sickening,” she said.
She also took Hamilton-Smith and Brock to task, saying: “They have skulked across the floor of this house and maintained support for a government that is wickedly concealing an opportunity for an open and public transparent approach to the investigation of this matter.”
“I find it sickening to think that there has been no capacity for independence,” said Chapman.
“Anyone over there [on the Government benches] who has one scintilla of commitment should ensure that we expose it when our public administration has failed, whether a minister has failed or not.”
Rau accused the Liberals of political expediency, claiming “we are seeing is an interesting change in the attitude of the Opposition to this matter over the course of the last few months”.
However, a policy document published when Isobel Redmond was Opposition Leader suggests the Liberals have long maintained a policy preference for public hearings, with the Liberals then promising to “lift Labor’s blanket ban on public hearings and empower the Commissioner to use public hearings in the public interest, while balancing the need to protect reputations”.
For the second day running, Premier Jay Weatherill has refused InDaily‘s interview requests on the ICAC standoff.
Bedford this morning told ABC Radio Adelaide “the way to hold an open inquiry, I believe, is through a Royal Commission, rather than ICAC”.
“The problem is very, very broad and even if we come up with some findings through our Royal Commission we can compel Federal people to come and speak to a Royal Commission,” she said.
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