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Exactly how SA's politicians have protected themselves from ICAC

Opinion

South Australia’s parliamentarians have opened up a yawning legal loophole which could prevent ICAC from investigating them for corruption and kill off some inquiries already underway. David Washington explains how.

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Intricate legislation to transform the way South Australia’s integrity agencies work sailed through Parliament last week at light speed, with the unanimous support of the state’s politicians.

Some of the clauses have the potential to shield politicians from the operations of the ICAC Act and, as we will show, the lesser but still significant opprobrium of a misconduct finding.

While the Act’s author, SA-Best MLC Frank Pangallo, says he was motivated by a desire to provide greater protection to people who he believes have been victims of  ICAC over-reach, his legislation has thrown open a new legal avenue for politicians to avoid investigation for corruption.

These measures could also apply retrospectively in some cases, allowing politicians who may be under investigation right now to avoid any further action.

Code of protection

The Ombudsman made history this year, with the first-ever misconduct finding against a state minister – former transport and infrastructure minister Stephan Knoll.

However, it is possible that this will never happen again because the Parliament has added significant caveats to the definition of misconduct.

Adding to the degree of difficulty of any agency to prove misconduct – which must relate to a breach of a code of conduct, of which there isn’t one for MPs, only for ministers – the clause now insists that misconduct must be “intentional” and “serious”.

It’s now perfectly fine to breach the ministerial code of conduct – as long as you didn’t mean to and, your honour, it was only a small misstep.

Cue the lawyers.

Special privileges

More significantly, the new ICAC Act has opened up an expansive new avenue for legal protection against corruption investigations for members of Parliament that did not exist in the previous legislation.

The relevant clause relates to parliamentary privilege and is so broad as to open up almost comical possibilities for legal defences for politicians and public officers.

The clause says this (the new material is in italics):

Nothing in this Act affects the privileges, immunities or powers of the Legislative Council or House of Assembly or their committees or members and powers under this Act may not be exercised in relation to any matter to which parliamentary privilege applies.

Note the extraordinary breadth of the language.

Privilege covers the proceedings of parliament and its committees, including statements made, papers tabled, evidence presented – the whole show – and means that these matters can’t be used in a court of law. The definition of privilege is also malleable – parliament itself is the final arbiter of matters of privilege.

The ICAC amendments take the concept to a whole new level.

A lawyer could drive a truck through this clause. An entire fleet of trucks.

At best this gives even a moderately skilled advocate a whole new armoury to run legal skirmishes on any ICAC investigation into a politician.

At worst, it could be used to kill off ICAC investigations into a broad sweep of matters.

For politicians and their lawyers, the sky is the limit.

As assistant parliamentary counsel in SA, Carren Walker, puts it in this paper: “The privileges of the House originate from the House and are ultimately adjudicated by them. The Parliament of South Australia has not attempted to limit or define these privileges since the parliament was established in 1856.”

Let’s take a hypothetical example: if an MP in the future fears they might come under investigation by ICAC, they could table documents relating to the matter. Those documents would then become subject to parliamentary privilege. Given the changes passed by our politicians last week, a lawyer could then reasonably argue that the issue is beyond the reach of the ICAC because it relates to “a matter to which parliamentary privilege applies”.

Parliament could vote to limit privilege if it knew what was afoot – but given the capacity of the ICAC to comment publicly has been further restricted by this Act, that isn’t guaranteed. Nor has the parliament shown any appetite to do so in matters of privilege in the past.

Even if you dismiss this particular hypothetical scenario, given the wide scope of parliamentary activity, a huge range of matters could be inadvertently swept up and out of the reach of the ICAC.

It is an extraordinarily open-ended piece of legislative drafting which obviously arms defence lawyers with a new way to attempt to move their politician clients beyond the reach of the ICAC.

Retrospective protection

This is the pointy end of the legislative changes which could have immediate, real-world consequences.

The Act potentially provides retrospective protection to politicians who are facing prosecution or potential prosecution as a result of an ICAC investigation.

The new ICAC will only be able to investigate corruption, not misconduct or maladministration. And the definition of corruption has been narrowed to, primarily, bribery or corruption of public officers, threats or reprisals against public officers, abuse of public office, demanding or requiring benefit on basis of public office and offences relating to appointment to public office.

All other offences under the Criminal Law Consolidation Act, such as those relating to dishonesty, can no longer be investigated by the ICAC.

The means the kinds of investigations that led to one MP being charged, and two referred to the Director of Public Prosecutions, over alleged abuse of travel allowances, would no longer be possible by the ICAC with all the powers and status that it once possessed. Other investigative bodies could do so, depending on how their powers are enshrined in the Act.

What’s more, though, it looks like existing investigations could be under a legal cloud when the new Act comes into force over the coming weeks.

In the section on transitional arrangements, the provisions of the previous Act are to remain in force in relation to “any complaint or report” or any investigation begun before August 25.

However, there is a caveat: the next clause says that the new, broader definition of parliamentary privilege applies to this provision.

The broad-brush privilege exemption discussed above has been made retrospective.

Country MP travel allowance documentation has been tabled in parliament, meaning they are now covered by privilege.

We are about to go down a legal rabbit hole.

Fees paid

To cap it all off, if an MP or minister successfully uses their expensive QC to see off any ICAC action thanks to these new clauses, then you, the taxpayer are guaranteed to pay for it.

Under the new Act, any government employee or government board appointee, Minister or Member of Parliament who has not been convicted of an indictable offence that constitutes corruption in public administration now has an enshrined-in-law right to have “reasonable” legal costs reimbursed. They can even get a guaranteed interim payment before an investigation is finalised if it looks like they’re going to spend more than $100,000.

It’s easy to be sympathetic to public servants and others who have suffered financial hardship due to successfully fighting prosecution, but for politicians this clause conveniently closes the loop of protection for their reputations and bank balances.

Perhaps unsurprisingly, it’s difficult to find a local lawyer who is prepared to go on the record about the loopholes that have been opened up by the quicksilver decisions of parliament last week.

Conversely, the Adelaide political, media and legal establishment is very comfortable with the ICAC’s powers being curbed. Some politicians and lawyers are positively gleeful.

Director and Professor of Public Policy at the University of Adelaide’s Stretton Institute, Adam Graycar, who has a particular interest in corruption, is one who is prepared to provide an independent view.

And he is scathing.

“The bottom line here is that what I think we have got is a great protection screen for members of parliament,” he told InDaily.

“We already have the weakest ICAC in the country.

“We now have an accountability deficit.”

In attempting to swing the pendulum of power away from ICAC, to rein in what it sees as an overreach by the previous Commissioner, the parliament has taken the opportunity to give itself protections not open to any other member of the community.

When it comes to protection from accountability, they are now – literally and figuratively – the most privileged class of people in South Australia.

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