Legislative assembly

Exactly how SA politicians protected themselves from the ICAC


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

Complex legislation aimed at transforming the way South Australia’s integrity agencies work was passed by Parliament last week at lightning speed, with the unanimous support of state politicians.

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

While the author of the law, SA-Best MLC Frank Pangallo, says he was motivated by the desire to offer greater protection to those people who he believes have been over-outreached. ICAC, its legislation opened a new legal avenue for politicians to avoid corruption investigation.

These measures could also apply retrospectively in some cases, allowing politicians who may be under investigation at the moment to avoid further action.

Protection code

The Ombudsman made history this year, with the first-ever professional misconduct conviction against a Minister of State – the former Minister of Transport and Infrastructure, Stephan Knoll.

However, this may never happen again because Parliament has added important caveats to the definition of misconduct.

Adding to the degree of difficulty for any agency to prove fault – which must relate to a violation of a code of conduct, of which there is none for MPs, only for ministers – the clause now emphasizes that the fault must be “intentional” and “serious”.

It is now perfectly normal to break the ministerial code of conduct – as long as you didn’t want to and, your honor, that was just a small misstep.

Signal the lawyers.

Special privileges

More importantly, the new ICAC law opened a new avenue of legal protection against corruption investigations for Members of Parliament that did not exist in previous legislation.

The relevant clause concerns parliamentary privilege and is so broad that it opens up almost comical legal defense possibilities for politicians and public officials.

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

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

Note the extraordinary breadth of the language.

The privilege covers debates in parliament and its committees, including statements made, documents tabled, evidence presented – the whole show – and means these matters cannot be used in court. The definition of privilege is also malleable – parliament itself is the final arbiter on questions of privilege.

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

A lawyer could drive a truck thanks to this clause. A whole fleet of trucks.

At best, this gives even a moderately qualified lawyer a whole new arsenal for waging legal skirmishes over any ICAC investigation of a politician.

At worst, it could be used to kill ICAC investigations on a wide range of issues.

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

As Deputy Parliamentary Counsel in South Africa, Carren Walker, puts it in this article: “The privileges of the House flow from the House and are ultimately bestowed by it. The Parliament of South Australia has not attempted to limit or define these privileges since the creation of Parliament in 1856. “

Let’s take a hypothetical example: if a member of Parliament fears in the future that he will be the subject of an ICAC investigation, he could file documents relating to the case. These documents would then become subject to parliamentary privilege. In view of the changes adopted by our politicians last week, then a lawyer could reasonably argue that the matter is beyond the scope of the ICAC because it concerns “a matter to which parliamentary privilege applies”.

Parliament could vote to limit the privilege if it knew what was going on – but given that the ICAC’s ability to comment publicly has been further restricted by this law, that is not guaranteed. Parliament has also not expressed a desire to do so on matters of privilege in the past.

Even if you reject this particular hypothetical scenario, given the wide range of parliamentary activities, a wide range of issues could be inadvertently brushed aside and beyond the reach of the ICAC.

This is an extraordinarily open legislative drafting text that obviously arms defense lawyers in a new way to attempt to move their political clients out of the reach of the ICAC.

Retrospective protection

This is the sharp end of legislative changes that could have immediate and concrete consequences.

The law potentially offers retrospective protection to politicians who are the subject of 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 reduced, mainly, to bribery or corruption of public officials, threats or reprisals against public officials, abuse of public office, exigency or punishment. the requirement of benefits on the basis of public office and offenses related to appointment to public office.

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

The means, the types of investigations which led to the indictment of a deputy and to two referrals to the Director of Public Prosecutions, for alleged abuse of travel allowances, would no longer be possible by the ICAC with all the powers and the status he once had. Other investigative bodies may do so, depending on how their powers are enshrined in the Act.

Additionally, it looks like existing investigations could be under a legal cloud when the new law takes effect in the coming weeks.

In the section relating to transitional provisions, the provisions of the old law remain in force for “any complaint or report” or any investigation opened before 25 August.

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

The blanket lien exemption discussed above has been made retrospective.

The documents relating to the travel allowances of the country’s deputies have been tabled in parliament, which means that they are now covered by the privilege.

We’re about to sink into a legal rabbit hole.

Fees paid

To top it off, if a Member of Parliament or Minister successfully uses their expensive QC to prevent any action by the ICAC through these new clauses, then you, the taxpayer, are guaranteed to pay for it.

Under the new law, any government employee or member of a board of directors, minister or deputy who has not been convicted of a criminal act constituting corruption in public administration now has a right enshrined in law to obtain reimbursement of “reasonable” legal costs. . They can even get a guaranteed interim payment before an investigation is finalized 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 as a result of successfully fighting lawsuits, but for politicians this clause conveniently closes the loop of protecting their reputation and their interests. bank balances.

Unsurprisingly perhaps, it’s hard to find a local lawyer who is willing to speak publicly about the loopholes that were opened by Parliament’s swift rulings last week.

Conversely, the political, media and legal establishment of Adelaide is very comfortable with the limitation of the powers of the ICAC. Some politicians and lawyers are positively cheerful.

Director and professor of public policy at the Stretton Institute at the University of Adelaide, Adam Graycar, who has a particular interest in corruption, is ready to provide an independent perspective.

And he’s scathing.

“At the end of the day, what I think we have is a great protective screen for MPs,” he said. Daily.

“We already have the weakest ICAC in the country.

“We now have a liability deficit. “

By trying to move the pendulum away from the power of the ICAC, to slow down what it considers to be an overrun of the previous commissioner, the parliament took the opportunity to grant itself protections that are not open to any other member. from the community.

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

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