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Opinion

ICAC reform a headache of its own making

Opinion

The state anti-corruption body’s own history prompted parliament’s move on it, argues Kym Davey.

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The reports of the death of ICAC are greatly exaggerated. Indeed we now have a proper anti-corruption Commission in place, rather than unwieldy legislation that mandates the appointment of an unaccountable czar.

Last week’s media and talkback radio were laden with claims that the Parliament of South Australia had mugged our Independent Commissioner Against Corruption in a wild statutory coup. Not much has been said yet about the virtues of the legislation and what it intends to achieve. More of that later.

It is reasonable for people to be concerned that the ICAC (CPIPC Recommendations) Amendment Bill 2021 was rushed through the Parliament in a matter of hours. The haste was unseemly and unnecessary. A more thorough debate was warranted, if only to reassure the public that the new direction is sound and well intentioned.

We should note too the warning about changes made to parliamentary privilege. It is said these may provide too much protection for politicians with something to hide from their electors.

It’s also fair for the incumbent Commissioner, the Hon Ann Vanstone QC, to complain that she had not been consulted on the refined Bill that was presented to the Legislative Assembly on Wednesday 22 September.

But she has said much more than that. She has accused Parliament of crafting legislation deliberately designed to protect corrupt politicians. She surely knows better than to accuse the Parliament of deliberate malice – the implication being that passing the new ICAC law is in itself a corrupt act.

In fact our Parliament is doing the job we elected it to do. Just as it did recently in widely celebrated legislation to remove abortion from the criminal code and to enact long fought for voluntary assisted dying laws. History might well look kindly on the 54th Parliament of South Australia.

Certainly the former Commissioner Mr Bruce Lander won’t. He went further than Ms Vanstone when he said: “[This is] an act that’s designed by politicians to protect corrupt politicians, and it has that effect. It’s also designed to protect corrupt police officers, and it has that effect.

“It will also incidentally, because of the major changes that have been made, protect senior public officers who also are corrupt.”

He might well reflect that these changes are largely the legacy of his controversial tenure as Commissioner. As one senior official told me, the sweeping reforms to ICAC may have been unnecessary, or much less dramatic, if Ms Vanstone had been appointed to the position in 2013.

The current Treasurer, the Hon Rob Lucas MLC, complained from opposition in 2015 that ICAC was acting to ‘intimidate and scare the bejesus out of public servants’.  He wasn’t far wrong.

Readers of InDaily and other serious news outlets will not have been surprised by the passage of the new laws. Many calls have been made for reform in recent years. Recommendations to redefine corruption in public administration and refocus the work of the ICAC headlined the Crime and Public Integrity Policy Committee (CPIPC) report tabled in Parliament in November 2020.

Complimentary proposals to confer the Ombudsman with powers to identify and investigate misconduct and maladministration in public administration, establish a separate Office of Public Integrity (OPI) and upgrade the toothless ICAC Reviewer to become a powerful Inspectorate were the key changes recommended.

The 217 page CPIPC report made the case that substantial change was needed across South Australia’s principal integrity bodies. It effectively signalled then that South Australia’s initial experiment with a high-profile, all-powerful ICAC was not working.

Indeed, the current Commissioner conceded early in her tenure that the main game for ICAC should be anti-corruption work. Last Friday she underlined that position when she said: “I’m not talking about maladministration or misconduct, I don’t mind losing that, that can go to the Ombudsman happily…

“It’s the corruption jurisdiction that has been decimated and my powers to investigate have been decimated that’s what I’m really worried about.”

The irony here is that maladministration and misconduct have been the principal interest of the ICAC since its inception. Yet much of that work has been farmed out to the Ombudsman to handle, without the necessary resources to cover both that work and his own jurisdictional remit.

A recent example is the investigation of the Hon Stephan Knoll MP, where the Ombudsman found misconduct in the former minister’s dealings with the appointment of the Adelaide Cemeteries Authority Board. Another matter was the investigation report of serious financial irregularity and debt mismanagement in the District Council of Coober Pedy.

One might argue that these matters should have been of more interest to ICAC than the media-friendly investigation of former University of Adelaide Vice Chancellor Peter Rathjen. Many questioned why that matter was handled by ICAC.

If there is no remaining dispute about the transfer of maladministration and misconduct matters to the Ombudsman, there certainly has been heat and light on the issue of the alleged ‘decimation’ of the corruption jurisdiction. While there is no doubt the new ICAC Act narrows the definition of corruption, the claim that the jurisdiction has been decimated is hyperbole.

I suspect that what some critics of the new laws really mean is that ICAC is likely to be truncated in size and function because of the transfer of responsibilities to the OPI and the Ombudsman. Indeed there will need to be a major budget and staffing realignment across the existing three agencies, and probably a need for additional resources to staff the new ICAC Inspectorate. The current ICAC staff profile of some 75 FTE will necessarily be reduced. That’s not necessarily a bad thing as long as all the essential integrity functions are covered.

But for some to say the ICAC corruption jurisdiction has been destroyed is just plain wrong. All the key tests of deliberate and intentional wrongdoing in public administration remain.

The main concern seems to be that ICAC will now only investigate ‘abuse of public office’. This is not correct. The Act still provides for action to be taken against bribery, corruption, dishonesty, fraud, threats or reprisals against public officers, demanding or requiring benefits and offences relating to appointment to public office.

Offences against the Public Sector (Honesty and Accountability) Act 1995, the Public Corporations Act 1993 and the Lobbyists Act 2015 remain on the books. And while the solitary reference to abuse of public office makes the corruption powers sound thin, that reference actually encompasses a raft of offences that are separately listed in other state ICAC laws. These are matters such as defrauding public revenue, collusive tendering, and fraud in relation to applications for licences and permits.

Perhaps the new Mark 2 ICAC will need to look more closely at some of these practices rather than getting tangled up in maladministration matters that the Ombudsman is perfectly positioned to investigate. If the new Commission needs help it might continue to pick up on the public interest investigations done by the fourth estate in this fair city. Journalists here have done an excellent job of uncovering wrongdoing by lawmakers and public servants alike in recent years. All power to their elbow.

Two other areas of the new Act deserve mention as opportunities for advancement in the standard of public administration in South Australia.

One is the decision to appoint a full-time Inspector of the ICAC and the OPI. In my view, the Inspector (including the Deputy Inspector and a staff team), should be known as the Inspector for Public Integrity. This is because the role will have jurisdiction across not just ICAC and OPI, but also over the Office of the Ombudsman. Interestingly, the current Ombudsman, Mr Wayne Lines, argued last week that the ICAC Inspector’s new powers to take complaints, receive reports and adjudicate any abuses or irregularities in the operations of his Office were unnecessary. The Parliament disagreed, giving the Inspector a broad remit to oversee the operations of all public integrity bodies.

And so it should be, particularly now the Ombudsman has new powers, responsibilities and, presumably, resources at his disposal to uncover and investigate maladministration and misconduct.

The other area not yet highlighted in the ICAC talkback radio wars is the less sexy but vitally important work on the prevention of corruption. The new ICAC Act states that the Commission will have authority to:

Consequential changes to the Ombudsman Act 1972 will give the Ombudsman similar responsibilities in his patch. These roles are essential for planning sound administration and maintaining the governance health of state agencies. Along with the Ombudsman’s statutory audit powers, the intention here is that the Commission and the Office of the Ombudsman will work together to design and implement evaluation and educational tools to identify poor practice in government – and to highlight and encourage replication of the many good practices now in place.

To do that we need all the integrity agencies to work together to educate and prevent maladministration and stamp out any corruption uncovered. And we need the Hon Ann Vanstone QC to lead a new ICAC with the quiet excellence she has displayed for the past 12 months.

The policy objective is not to maintain little empires. Rather it is to demonstrate to the public that we have integrity bodies worthy of the name.

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

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