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Richardson: The Strange and Rapid Death of SA’s ICAC

The end came quickly for the great ICAC experiment in South Australia.

Indeed, the strangest thing about the bizarre death of state independent anti-corruption watchdog Mark One was the unseemly haste with which it was ultimately dispatched.

There were other strange things though.

The fact, for example, that a government that surrendered to the last election promising open and transparent public hearings of the ICAC on misconduct cases has thankfully removed these issues from the hands of the ICAC.

It is true that these questions have been going on for some time.

Indeed, Daily first reported over a year ago that an upcoming report by the Parliamentary Committee on Crime Policy and Public Integrity was being prepared to inform a legislative review of the ICAC Act, and noted that a key recommendation would limit the Commissioner’s ability to investigate cases of maladministration and misconduct.

Bearing in mind, of course, that issues of maladministration and misconduct made up the bulk of the public reporting of former ICAC Bruce Lander, including Gillman, Oakden, SA Health and a sexual harassment complaint against the Vice-Chancellor of the University of Adelaide, Peter Rathjen.

But when the government was slow to respond to the committee’s report, its chairman – SA Best MLC Frank Pangallo – took matters into its own hands, tabling its own legislation to cut the wings of the ICAC.

And at this point, parliament has taken action.

Debate on Pangallo’s bill began Wednesday in the upper house; it was adopted the same evening.

The government then introduced it the next day in the House of Assembly – again, it passed in about an hour, with minor changes.

It was sent back to the Legislative Council, spending about as long as it took to read the new amendments aloud.

All in 24 hours.

Farewell ICAC, we barely knew you.

Which, to be fair, was in large part because of these notorious secrecy provisions.

No one is claiming that there were no loopholes in the ICAC law before – but that is part of the problem.

The original ICAC bill was the subject of forensic debate and scrutiny and still contained major loopholes that raised such concern about the powers of the office, it established that all The world, from the media to the bureaucracy to the upper echelons of government, trembled with fear at the mere mention of the anti-corruption watchdog.

The secrecy provisions were so entrenched that a person under investigation could not even publicly declare themselves under investigation, even if they wished to.

This made the ordeal more difficult for his subjects, even those who were ultimately elucidated: the mere whiff of the ICAC would see colleagues and superiors running for the hills as they effectively vanished from existence for the duration. of an investigation, without ever being mentioned, even in a low voice. .

There was also confusion over whether the ICAC Act replaced the convention of parliamentary privilege – a gray area that has offended the sensibilities of many politicians who have long believed that parliament is a forum where everything can be broadcast without legal accountability.

But in general, this week’s reforms won’t create more transparency around state anti-corruption agencies – but less.

And deliberately: Pangallo’s beef has always been about undue reputational damage caused by ICAC investigations that did not end in a conviction.

The media, of course, always want more transparency – so I’ll admit some personal interest in this complaint.

But this is where the shoe pinches: everyone in a debate approaches the problem from a self-interest perspective.

So, the approach of parliament getting this bill through in record time, with minimal debate, and in so doing effectively dismantling the still recently state-created ICAC, is simply unbelievably bad.

Initially, the ICAC was created to crack down on this kind of idealized “money in a brown paper bag” corruption – of which, in reality, there is very little.

But this bill feels less “brown paper bag” than “the back of the envelope.”

You can rest assured that we will be back here soon, fixing any foreseeable but unforeseen issues with this new iteration.

When the government backed down from the original draft, Pangallo was persuaded to add a stack of amendments – which were said to have been removed in collaboration with Liberal committee members Dan Cregan and Steve Murray, at the behest of the Prime Minister, the Attorney General Vickie Chapman and The Leader of the Upper House, Rob Lucas.

To give you an idea of ​​how quickly all of this was done, the second draft of the bill was not even available when Daily asked for it yesterday – after it had already been adopted by the Legislative Council.

One MP today described the need for speed as follows: “We had to remove the bandage.

Another said to me: “Over 100,000 public servants have just recovered their rights to a fair investigation.

“The media will say that these are a few MPs under investigation, but these complaints will continue,” they insisted, adding that the situation “reminds me that Don Dunstan has taken over the special branch. – the special branch had crossed the line and placed second. ”.

But if MPs felt they were doing a good job with these changes, it was incumbent on them to explain and debate them carefully.

If they return to the drawing board on the original ICAC law, with a private member’s bill that has gone through Parliament unopposed and with minimal debate, you can rest assured that we will get back here quickly. , fixing all the foreseeable but unforeseen issues of this new iteration.

Meanwhile, the fact that there are politicians being investigated or charged in ICAC investigations only reinforces the impression that parliament is protecting. his own, at least in the future (although Commissioner Ann Vanstone’s conflict of interest allegations were of no help, made without knowing that the individual MEPs would be withdrawing from the Chamber for this specific reason).

Vanstone insisted today that his concerns were “not about maladministration and malpractice”, which will henceforth be the sole responsibility of the mediator, but “the decimation of jurisdiction over corruption”.

Having signaled her potential resignation, she is staying for the time being – although chairing an agency she has already conceded no longer has an effective purpose.

“I can stay because I have responsibilities to my staff and I have a work in progress which the transitional arrangements allow me to continue,” she told ABC Radio Adelaide this morning.

“I’m not going to leave this messy place and leave no one to oversee the changes that need to be made – I’m not going to.”

You can tell who the winners and losers of these changes are from their various responses – after all, as Keating once said, the horse called self-interest is always trying.

The ombudsman’s office will be improved by these changes, and possibly strengthened, as various jurisdictional disputes with the ICAC have been resolved in its favor.

Wayne Lines told Parliament this week he was “very supportive of the misconduct and maladministration jurisdiction”.

As Mandy Rice-Davies would say, “Well, he would, right? “

The Ombudsman continued, “I think this serves a very useful purpose in focusing the resources of the ICAC on corruption.

“I know you’ve heard horror stories about how the ICAC conducted certain investigations and the results of these, but I think if the ICAC is able to focus on corruption investigations and does not have mismanagement and misconduct in its portfolio, so many of these issues can be alleviated as investigations will be faster and more focused [so] I am in favor of this change of jurisdiction, ”he declared.

He also noted, however, that the bill “has certain shortcomings and could be improved”.

But overall, he said, investigations of misconduct and maladministration “are more suited to an ombudsperson’s office, and maladministration, in particular, is sort of a brother of the administrative error, which is the main competence of a mediator… so I think that fit well ”.

All of this comes as no surprise to the state’s first ICAC, Bruce Lander, who said Daily today: “He would be delighted.

But Lander is not a fan of the new legislation, a law which he says “will protect corrupt politicians and corrupt police officers.”

I think there is nothing more to do for the ICAC

He says what the law has done is narrow the definition of bribery to just five types of offenses relating to public officials: bribery, threats, demand for benefits, appointment offenses and abuse of public office.

Of these, he says, in the seven years he has held the post, only the last has arrived.

“So all the ICAC has to do now is investigate the abuse of public office,” he said.

And even then, such investigations usually begin as misconduct or maladministration, and often only become offenses of abuse of public office at the prosecution stage.

“I don’t think most of them would be identified at the complaints stage as abuse of public office,” he said.

“I think there is nothing more to do for the ICAC.

This includes investigations of police officers accused of assault, which previously fell under the purview of the ICAC but which Lander says will now be the responsibility of the police themselves.

“I’m not sure the public will accept it,” he said.

But the point is, they have to.

Because no South Australian politician has voted against it.

Tom Richardson is a senior reporter at InDaily.

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