Richardson: The strange, swift death of SA’s ICAC

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

Sep 24, 2021, updated Sep 24, 2021
Ann Vanstone fronting parliament this week. Photo: Tony Lewis / InDaily

Ann Vanstone fronting parliament this week. Photo: Tony Lewis / InDaily

Indeed, the strangest thing about the strange death of the state’s 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 instance, that a Government which went to the last election promising open and transparent public ICAC hearings for misconduct matters has now happily taken such matters out of the ICAC’s hands together.

True enough though, these matters have been in train for some time.

Indeed, InDaily first reported more than a year ago that an impending report by parliament’s cross-party Crime and Public Integrity Policy Committee was set to inform a legislative review of the ICAC Act, and flagged that a key recommendation would curb the Commissioner’s ability to investigate matters of maladministration and misconduct.

Bearing in mind, of course, that matters of maladministration and misconduct made up the vast bulk of former ICAC Bruce Lander’s public reports, including Gillman, Oakden, SA Health and a sexual harassment complaint against Adelaide University vice-chancellor Peter Rathjen.

But when the Government dragged its feet in responding to the committee’s report, its chair – SA Best MLC Frank Pangallo – took matters into his own hands, tabling his own legislation to clip the ICAC’s wings.

And at this point, the parliament leapt into action.

Debate on Pangallo’s Bill began in the Upper House on Wednesday; it was passed the same evening.

The Government then brought it on the very next day in the House of Assembly – again, it was passed in around an hour, with minor amendments.

It was whipped back to the Legislative Council, passing in about as much time as it took to read the new amendments aloud.

All within 24 hours.

Farewell ICAC, we hardly knew ye.

Which, to be fair, was largely because of those notorious secrecy provisions.

No-one’s arguing there were not flaws in the ICAC Act previously – but that’s part of the problem.

The original ICAC Bill was forensically debated and scrutinised, and still contained major deficiencies that created such concern around the powers of the office it established that everyone from the media to the bureaucracy to the uppermost echelons of government quaked in fear at the mere mention of the anti-corruption watchdog.

The secrecy provisions were so entrenched that someone under investigation couldn’t even publicly declare themselves the subject of an investigation, even if they wanted to.

It made the ordeal more difficult for its subjects, even those ultimately cleared: the mere whiff of ICAC would see colleagues and superiors run for the hills as they effectively vanished from existence for the duration of an investigation, never to be mentioned even in hushed whispers.

There was also confusion about whether the ICAC Act superseded the convention of parliamentary privilege – a grey area that offended the sensibilities of many a politician who had long believed the parliament was a forum where anything can be aired free from legal accountability.

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

And deliberately so: Pangallo’s beef has always been about undue reputational harm caused by ICAC inquiries that didn’t end with a conviction.

The media, of course, always want more transparency – so I’ll concede some self-interest on that complaint.

But there’s the rub – everyone in any debate is coming at it from a perspective of self-interest.

So the optics of parliament waving this Bill through in record time, with minimal debate, and in so doing effectively dismantling the state’s still-recently-created ICAC, are simply, staggeringly bad.

In the first instance, the ICAC was created to crack down on that sort of ‘cash in brown paper bag’ type of idealised corruption – of which, in reality, there is very little.

But this Bill feels less ‘brown paper bag’ than ‘back of the envelope’.

You can rest assured we’ll be back here again in quick turn, fixing all the foreseeable but unforeseen problems with this new iteration

When the Government baulked at the original draft, Pangallo was convinced to add a stack of amendments – understood to have been nutted out in conjunction with Liberal committee members Dan Cregan and Steve Murray, at the request of the Premier, Attorney-General Vickie Chapman and Upper House leader Rob Lucas.

To give you some idea of how quickly this was all done, the second draft of the Bill wasn’t even available when InDaily requested it yesterday – after it had already passed the Legislative Council.

One MP today described the need for speed thus: “We had to pull the band-aid off.”

Another told me: “More than 100,000 public servants just got their rights to a fair investigation back.”

“The media will say this is all about a few MPs under investigation, but those complaints will continue,” they insisted, adding the situation “reminds me of Don Dunstan taking on the special branch – the special branch had overreached and came off second best”.

But if MPs feel they’re doing good work by these changes, it was incumbent on them to explain them and debate them carefully.

If they’re going back to the drawing board on the initial ICAC Act, with a private member’s Bill that was waved through parliament with no opposition and minimal debate, you can rest assured we’ll be back here again in quick turn, fixing all the foreseeable but unforeseen problems with this new iteration.

Meanwhile, the fact that there are politicians under investigation or facing charges from ICAC inquiries only enhances the impression that parliament is protecting its own, at least into the future (although Commissioner Ann Vanstone’s claims of conflict of interest were unhelpful, made without knowing that individual MPs would recuse themselves from the chamber for that precise reason).

Vanstone today insisted her concerns are “not about maladministration and misconduct”, which will now be the exclusive purview of the Ombudsman, but “the decimation of the corruption jurisdiction”.

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Having flagged her potential resignation, she’s staying on for now – albeit presiding over an agency she’s already conceded has no effective purpose any more.

“I can stay because I’ve got responsibilities to my staff and I’ve got ongoing work which the transitional provisions allow me to continue,” she told ABC Radio Adelaide this morning.

“I’m not going to walk away leaving this place in a mess and leaving no one to supervise the changes that must be made – I am not going to do that.”

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

The Ombudsman’s office will be enhanced by these changes, and presumably bolstered, while various jurisdictional fracas with the ICAC have been resolved in its favour.

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

As Mandy Rice-Davies would say: “Well, he would, wouldn’t he?”

The Ombudsman went on: “I think that serves a very useful purpose in focusing the ICAC’s resources on corruption.”

“I know you have heard some horror stories about how the ICAC has conducted some investigations and the outcomes from that, but I think if ICAC is able to concentrate on corruption investigations and not have maladministration and misconduct in its portfolio, then a lot of those problems may be eased in that the investigations will be speedier and more focused [so] I am supportive of that change in jurisdiction,” he said.

He noted too, though, that the Bill “has some deficiencies and could be improved”.

But on the whole, he said, misconduct and maladministration investigations “do fit better with an Ombudsman’s office, and maladministration, in particular, is sort of like a sibling to administrative error, which is the primary jurisdiction of an ombudsman… so I think that fits well together”.

All of which is no surprise to the state’s first ICAC Bruce Lander, who told InDaily today: “He’d be delighted.”

But Lander is no fan of the new legislation, an Act he says “will protect corrupt politicians and corrupt police officers”.

I think there’s nothing for ICAC left to do

He says what the Act has done is narrow the definition of corruption to just five types of offences relating to public officers: bribery, threats, demanding benefit, offences related to appointments and abuse of public office.

Of those, he says, in the seven years he held the office only the last ever came up.

“So all ICAC’s got to do now is investigate abuse of public office,” he says.

And even then, such investigations generally start off as misconduct or maladministration inquiries, often not becoming abuse of public office offences until the prosecution stage.

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

“I think there’s nothing for ICAC left to do.”

That includes investigating police officers accused of assault, something that previously fell under ICAC’s purview but will now, Lander says, fall to the police themselves.

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

But the thing is: they have to.

Because not a single politician in South Australia voted against it.

Tom Richardson is a senior reporter at InDaily.

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