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ICAC baton change a chance to review powers of office

Opinion

The end of Bruce Lander’s seven year tenure as Independent Commissioner Against Corruption is an opportunity to examine the powerful office’s role, responsibilities and success, argues Kym Davey.

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ICAC is back in the headlines with an announcement that outgoing Commissioner Bruce Lander is investigating the conduct of a number of Members of Parliament in respect of claims made by them for payment of the Country Members Accommodation Allowance.

The Auditor-General, who was undertaking the investigation after sensational media revelations, has stepped back from his enquiries.

It is not known whether the incoming Commissioner, former Supreme Court judge the Hon. Ann Vanstone QC, will take over the investigation when Bruce Lander concludes his seven-year term as the inaugural head of ICAC next month. His departure may mean his investigation lapses. That is not yet clear.

The last seven years of ICAC in South Australia have been a rollercoaster ride of high expectations, tempered with often modest results.

Bruce Lander surprised his audience recently when he told a parliamentary committee that he should be the last Independent Commissioner Against Corruption in South Australia. He voiced his intention to recommend to the government that the title of his office be abolished and that a new Commission for Public Integrity be established by legislation.

Clearly they have decided not to accept that advice. Not at this point in time at least.

The Independent Commissioner Against Corruption Act 2012 (ICAC Act) commenced operation on 1 September 2013, establishing the office of the Commissioner and the Office for Public Integrity (OPI). On the same day, by way of amendments to the Parliamentary Committees Act 1991, the ICAC Act established the Crime and Public Integrity Policy Committee (CPIPC).

The ICAC Act sets out the administrative basis and operational functions of both the Commissioner and OPI. It states the primary objective of ICAC is to investigate serious or systemic corruption in public administration. It also provides for the role of an ‘inquiry agency’ (currently limited to the Ombudsman) for the purposes of investigations under the ICAC Act.

The last seven years of ICAC in South Australia have been a rollercoaster ride of high expectations, tempered with often modest results.

Commissioner Lander’s advocacy for a change of focus should now raise an important debate in SA on the future of the high profile anti-corruption body. Mr Lander proposes that a new Commission for Public Integrity should have “jurisdiction and powers which reflect the present model”. He has also suggested that the definition of corruption be widened beyond criminal offending to include “conduct that is wanting in integrity”.

Two months ago Mr Lander gave wide-ranging evidence to the CPIPC on the current and past operations of ICAC and reflected on his time in the role as Commissioner. On corruption and the role of ICAC he said:

“The powers and functions held and discharged by that office holder are much broader than simply the identification and investigation of corruption in public administration… Much of my work and the work of the OPI concerns matters of misconduct and maladministration in public administration. A significant amount of work is also undertaken in the education and prevention space”.

In 2018 the Ombudsman, Mr Wayne Lines, gave evidence to CPIPC that he supports a model where the ICAC deals with potential issues of criminal corruption in public administration, and the Ombudsman deals with potential issues of misconduct and maladministration in public administration. He said:

“I support ICAC being thoroughly focussed on corruption or anti-corruption and my office being focused administrative matters, including maladministration, with the proviso that if ever there is a detection of dishonesty or corruption that is immediately reported to ICAC and that there is a good flow of information between the agencies.”

The relationship between the leaders of the two integrity bodies is not known to be convivial. It would appear that there is a fundamental difference of view on the respective jurisdictions of the Ombudsman and the ICAC. The Commissioner’s suggestion that ICAC should now become the Commission for Public Integrity has exposed an underlying tension that has dogged both integrity agencies in SA for the last seven years.

Notwithstanding an impressive list of activities, many in the public service have long questioned the outcomes produced by ICAC.

One public manifestation of this has been Mr Lander’s reluctance to state that he exercises the investigative powers of the Ombudsman under the ICAC Act. He has consistently preferred the opaque description of “an inquiry agency” to refer to the Ombudsman. This led to an unedifying spat with then Premier Jay Weatherill in 2018 when the Premier referred to the Oakden inquiry conducted by Mr Lander as “an Ombudsman investigation”. Mr Lander took public offence at what he considered a slight to his authority and independence.

That episode highlights a difficulty Mr Lander has recently encountered in his dealings with Members of Parliament. It would not be unreasonable to observe that Mr Lander’s forthright manner has been perceived by many MPs as a strong dislike of their class. The earlier and obvious political deference to the ICAC has now been replaced by a more sceptical tone. The 2019 dispute with Treasurer Rob Lucas over Mr Lander’s submission for $2 million to conduct an anticorruption ‘evaluation’ of the Central Adelaide Local Health Network is a case in point.

Mr Lander’s vigorous public position on that claim was undercut by media revelations that the ICAC budget had been underspent by $1.43 million since 2017. At the same time, it was reported that Mr Lander had angered senior government officials for revealing a private conversation with a ‘furious’ Premier Steven Marshall over his report on alleged corruption risks in SA Health.

It would appear that incoming Commissioner Ann Vanstone has some fence-mending work to do with the government and with MP’s generally. More than that, her appointment provides an opportunity for a major rethink in the operations of our key public integrity bodies.

If, as he himself suggests, the end of Mr Lander’s service is an opportunity to review the fundamental role and purpose of ICAC, then it is appropriate to review the budget allocations and the respective role and powers of both major integrity agencies.

Currently ICAC receives an annual budget of about $16 million. The organisation has a large staff team of 75, including 12 executives – handling a fairly static 1200 reports and complaints each year. In 2018/19 almost 40% of complaints and reports concerned inappropriate conduct, workplace bullying, harassment, and failure to comply with policy or procedure in state government. Mr Lander has presided over a substantial boost to the original annual $8 million ICAC budget with a staff of 38.

Whilst the comparisons are not exactly proportionate, the Ombudsman has an annual budget of under $3 million and two executives with a staff complement of 25 handling a workload of about 4200 complaints every year. This does not include those matters of misconduct and maladministration Mr Lander currently refers to the Ombudsman to investigate. These investigations use Ombudsman resources. In addition, there was a cost to the taxpayer of relocating the Ombudsman’s office to facilitate the expansion of OPI and the building of the public hearing rooms – now not needed.

So, how has the ICAC/OPI model performed during his period of office? Inter alia, Mr Lander reports that ICAC has:

Notwithstanding an impressive list of activities, many in the public service have long questioned the outcomes produced by ICAC. Mr Lander has himself complained that he is ‘not getting sufficient people reporting to the OPI’. Perhaps unwisely, he declared in his first year that there was no systemic corruption in SA. Against that claim, some have been quick to mark ICAC down for failed prosecutions or the unwillingness of the DPP to prosecute on the strength of some ICAC investigations.

Aside from the recent publicity covering the arrest of a sitting magistrate, there have been no significant corruption ‘busts’ resulting in successful prosecution.

Two further issues have served to erode what Adelaide lawyer Samuel Joyce referred to in 2018 as “an unhealthy deference to the present Commissioner”. The first is the recent failure of the amending legislation designed to enable the ICAC Commissioner to conduct public hearings into serious or systemic misconduct and maladministration. The reasons for that failure could fill several volumes. Suffice to say here that the Commissioner pushed hard to get his way on the legislation. He pursued a public all or nothing high stakes game with the political class on his favoured model. The parliament decided on nothing. The irony is that in 2018 Mr Lander had considerable public, media and parliamentary support for his proposal to hold open hearings.

The second matter is less obvious. It concerns what has become a running skirmish with senior police officers and the police association on the handling of police complaints.

In 2015, Mr Lander proposed that the Office of the Police Ombudsman be abolished and that new legislation be enacted to give him oversight of police complaints. The resulting Police Complaints and Discipline Act 2016 has pleased no one. The best Mr Lander can report is that the new system is “working tolerably well”. Almost all stakeholders disagree.

There have been public complaints that ICAC oversight has, in fact, given police more control over complaint handling than under the old Police Ombudsman system. The media have railed against a “cone of silence” because they believe the new law keeps internal investigations of officer misconduct under wraps. Police complain because they claim Mr Lander is referring hundreds of small matters to them for investigation and then cross-questioning their handling of these, which costs police resources. The cost-saving measure of abolishing the Office of the Police Ombudsman now looks to have created more problems than it solved.

So, where to from here? Mr Lander’s imminent departure and the appointment of Ann Vanstone creates an opportunity to take a hard look at where ICAC sits in relation to the Office of the Ombudsman and the statutory responsibilities and powers of the Auditor-General.

A possible change option might be to adopt the model proposed by the Ombudsman. That would require a legislated jurisdictional division between Ombudsman SA and ICAC on misconduct and maladministration matters – and a commensurate reallocation of resources if a smaller ICAC retains a defined corruption mandate.

Other options may be to revisit the police complaint handling legislation and consider a revised Ombudsman-type mechanism.

In among the debates about form, function and budgets, it should be an open question as to whether SA needs an anti-corruption body of the ICAC type. It may be possible, for example, to upgrade the SAPOL Anti-Corruption Branch to handle those matters that require the most serious level of investigative scrutiny.

With regard to matters such as investigations of alleged irregularities in parliamentarians claims for payment of allowances, it would appear that the Auditor-General already has wide-ranging powers under the Public Finance and Audit Act 1987. The current ICAC investigation of parliamentarians’ allowances has highlighted the potential overlap of responsibilities with the Auditor-General. There is a good case to be made for clarifying respective roles here.

With the appointment of Ann Vanstone as the new Commissioner, it is reasonable to expect operational review and change.

Despite his organisation’s many challenges, Commissioner Lander has served the state with vigour and probity. His stewardship of the ICAC experiment has thrown up some important issues for legislators and his successor to consider in ensuring integrity and improvement in public administration. They include lessons both from his achievements and from the over-engineered secrecy provisions of the ICAC Act in 2012.

One thing is now clear: more of the same is not an option.

Kym Davey was the Manager Administrative Improvement for the Ombudsman SA, working in the Ombudsman’s office from 2011 to 2019.

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