Second Reading Speech of the ICAC Act

Excerpt from Hansard, Legislative Assembly, 26 May 1988

Mr Greiner (Ku-ring-gai), Premier, Treasurer and Minister for Ethnic Affairs: I move:

That this bill now be read a second time.

The establishment of the Independent Commission Against Corruption was a clear and unequivocal election undertaking by the Government. The people of this State have given the Government an equally clear and unequivocal mandate to implement that undertaking. This bill honours our commitment – and honours it to the letter. The bill does precisely what I said the Government would do. It is not a pale imitation of the institution that we promised to set up. Its powers, jurisdiction and functions replicate the blueprint that was endorsed by the people of this State on 19th March.

Before going into the details of this legislation, I want to say something about the rationale and the objectives of the independent commission. There has been considerable speculation about the Government's reasons for setting up this body. I indicated before our being elected to Government that I was appalled by the sort of reputation this State had acquired around the country and indeed, overseas. There was a general perception that people in high office in this State were susceptible to impropriety and corruption. In some cases that has been shown to be true.

In recent years, in New South Wales we have seen: a Minister of the Crown gaoled for bribery; an inquiry into a second, and indeed a third, former Minister for alleged corruption; the former Chief Stipendiary Magistrate gaoled for perverting the course of justice; a former Commissioner of Police in the courts on a criminal charge; the former Deputy Commissioner of Police charged with bribery; a series of investigations and court cases involving judicial figures including a High Court Judge; and a disturbing number of dismissals, retirements and convictions of senior police officers for offences involving corrupt conduct.

No government can maintain its claim to legitimacy while there remains the cloud of suspicion and doubt that has hung over government in New South Wales. I am determined that my Government will be free of that doubt and suspicion; that from this time forward the people of this State will be confident in the integrity of their Government, and that they will have an institution where they can go to complain of corruption, feeling confident that their grievances will be investigated fearlessly and honestly.

Let me make it absolutely clear that this initiative is a component of the Government's program to restore the integrity of public administration and public institutions in this State. Nothing is more destructive of democracy than a situation where the people lack confidence in those administrators and institutions that stand in a position of public trust. If a liberal and democratic society is to flourish we need to ensure that the credibility of public institutions is restored and safeguarded, and that community confidence in the integrity of public administration is preserved and justified. This is not just empty rhetoric. We have a program of reforms that we will carry through.

The strategies we will implement embrace a whole range of areas all aimed at restoring the integrity and accountability of public administration. We will reform practices and procedures for awarding government contracts; reform and clarify the criminal law on corruption , graft and perverting the course of justice; and review codes of conduct operating across the public sector. We have already introduced a code of conduct for Ministers and we are in the process of adapting that to ministerial staff. We will bring in freedom of information legislation; strengthen financial accountability through reforms to the methods of public accounting; and systematically review and reform public management in this State. That is the first point honourable members should understand. This legislation is a crucial part of the Government's long-term strategy for restoring the integrity of public administration.

The second thing I want to make absolutely clear is that the establishment of the ICAC is not a political stunt. The commission will not be set up to pillory our political opponents or to engage in political witchhunts. It has an extensive jurisdiction that applies across the entire ambit of the public sector. No one has been exempted. Ministers, members of Parliament, the judiciary and the Governor, will all fall within the jurisdiction of the ICAC. The independent commission will have jurisdiction to investigate corrupt conduct occurring before the commencement of the legislation. However, in deciding whether or not to investigate a matter the commission will take into account whether the conduct occurred at too remote a time to justify investigation. Obviously there will be no point in committing valuable resources to investigate matters that are too old to be effectively pursued.

I have made no secret of the fact that there are a number of matters that the Government will bring to the attention of the commission – matters of public concern that we raised in opposition and that the Wran and Unsworth governments did nothing about. But matters referred by the Government will be given no special treatment. The commission will have an independent discretion, and will decide what should be investigated and how it should be investigated. That is the whole point of having a commission independent of the Executive Government and responsible only to Parliament. The only matters that the commission must investigate are matters referred to it by resolution of both Houses of this Parliament.

The third fundamental point I want to make is that the independent commission will not be a crime commission. Its charter is not to investigate crime generally. The commission has a very specific purpose which is to prevent corruption and enhance integrity in the public sector. That is made clear in this legislation, and it was made clear in the statements I made prior to the election. It is nonsense, therefore, for anyone to suggest that the establishment of the independent commission will in some way derogate from the law enforcement role of the police or bodies such as the National Crime Authority. On the contrary, the legislation makes it clear that the focus of the commission is public corruption and that the commission is to co-operate with law enforcement agencies in pursuing corruption.

Honourable members will note that the bill makes specific provision to allow the commission to refer to matters to other investigatory agencies to be dealt with. Obviously that will be the most sensible way to deal with the majority of matters that will come to the attention of the commission. The commission will monitor those investigations and will retain only the most significant and serious allegations of corruption.

My fourth point is that the independent commission is not a purely investigatory body. The commission also has a clear charter to play a constructive role in developing sound management practices and making public officials more aware of what it means to hold an office of public trust and more aware of the detrimental effects of corrupt practices. Indeed, in the long term I would expect its primary role to become more and more one of advising departments and authorities on strategies, practices and procedures to enhance administrative integrity. In preventing corruption in the long term, the educative and consultancy functions of the commission will be far more important than its investigatory functions.

Honourable members will note that the commission is given specific functions to educate and advise public authorities, and to co-operate with the Auditor-General, the Office of Public Management, and similar bodies. For those sorts of reasons it would also be crass and naive to measure the success of the independent commission by how many convictions it gets or how much corruption it uncovers. The simple fact is that the measure of its success will be the enhancement of integrity and, most importantly, of community confidence in public administration in this State.

The final point I want to make by way of introduction concerns the question of civil liberties. This commission will have very formidable powers. It will effectively have the coercive powers of a Royal commission. Those are features of the legislation that I foreshadowed in the election campaign. There is an inevitable tension between the rights of individuals who are accused of wrongdoing and the rights of the community at large to fair and honest government.

There will be those who will say that this legislation is unjustified interference with the rights of individuals who may be the subject of allegations. Let me make a number of points in response to that sort of claim. First, though the commission will be able to investigate corrupt conduct of private individuals which affects public administration, the focus is public administration and corruption connected with public administration. The coercive powers of the commission will be concentrated on the public sector.

Second, corruption is by its nature secretive and difficult to elicit. It is a crime of the powerful. It is consensual crime, with no obvious victim willing to complain. If the commission is to be effective, it obviously needs to be able to use the coercive powers of a Royal commission. Third, the commission will be required to make definite findings about persons directly and substantially involved. The commission will not be able to simply allow such persons' reputations to be impugned publicly by allegations without coming to some definite conclusion. Fourth, the commission's activities will be monitored by a parliamentary committee. This committee will not be involved with specific operational matters, but will be concerned with looking at the overall effectiveness of the commission's strategies. Fifth, there will be an operations relations review committee, which will advise the commission on actions to be taken in relation to complaints. In contrast to the parliamentary committee it will be closely involved in operational matters, and will have the necessary forensic expertise to provide the commissioner with advice on operations.

The bottom line is simply this: the people of this State are fed up with half-hearted and cosmetic approaches to preventing public sector corruption. This legislation will establish an institution that has strong and effective powers and has jurisdiction to look at the entire public sector. That is what the people expect. It is our responsibility to ensure that that expectation is met and not disappointed.

I now turn to the main features of the legislation. The proposed Independent Commission Against Corruption will be constituted as a statutory corporation consisting of a single commissioner. The commissioner will have total direction and control of the commission. He or she can be appointed only for a term or terms totalling five years and can be removed from office only by the Governor on the address of both Houses of this Parliament. This is one way in which the independence of the commission from the Executive is safeguarded.

The commissioner will be a person who has the legal qualifications necessary to be a judge of the Supreme Court. Practising judges will not be eligible for appointment. This accords with the Government's policy that the resources of the judiciary should not be diverted from judicial work. There is provision for the appointment of assistant commissioners who will be subject to the same conditions of appointment as the commissioner.

Assistant commissioners, and only assistant commissioners, will be able to assist the commissioner in running hearings and exercising many of the commissioner's Royal commission-type powers. Mr Tony Fitzgerald, who is conducting the commission of inquiry into the Queensland police, has recently had a deputy appointed to assist him in exercising the hearings funtion. The staff of the independent commission will include specially selected police officers, financial and crime intelligence analysts, computer experts, and lawyers. The commission will institute a tough screening process for selecting staff, and will also establish a strong disciplinary code and internal audit and monitoring procedures. The final structure of the commission will, of course, be a matter for the commissioner, but there is provision for the appointment of a Director of Operations and a Director of Administration. The steering committee which has been advising the Government on the establishment of the independent commission has suggested the use of multi-disciplinary teams to investigate cases of corrupt conduct.

As I have already indicated, the functions of the independent commission will include advisory and educative functions and reviewing practices and procedures of public bodies. The commission will have educative and training officers, policy advisors and financial experts. It will develop programs to assist public authorities and departments and will co-operate with the new Office of Public Management, the Auditor-General, and similar bodies. I would hope that, in the long term, this educative and advisory function becomes the most important function of the commission. In the short term, one of the commission's primary functions will be to investigate allegations and complaints of corrupt conduct. Corrupt conduct has been carefully defined. As I said earlier corrupt conduct will focus on conduct of public officials. It will also include conduct of persons who are not‚ themselves public officials but whose activities impact on honest public administration. The most obvious example would be an attempt by a private person to bribe a public official.

The independent commission is not intended to be a tribunal of morals. It is intended to enforce only those standards established or recognised by law. Accordingly, its jurisdiction extends to corrupt conduct which may constitute a criminal offence, a disciplinary offence or grounds for dismissal. The commission's jurisdiction will cover all public officials. The term public official has been very widely defined to include members of Parliament, the Governor, judges, Ministers, all holders of public offices, and all employees of departments and authorities. Local government members and employees are also included. In short, the definition in the legislation has been framed to include everyone who is conceivably in a position of public trust. There are no exceptions and there are no exemptions.

The commission will be able to act on complaints of corrupt conduct which are brought to its attention, or to act on its own motion. The commissioner will have a wide discretion to investigate a complaint, to refer a complaint to another agency for investigation, or to decide that a complaint should not be investigated. In deciding whether to investigate a complaint the commissioner may have regard to whether the complaint is trivial, vexatious or not in good faith, as well as whether the conduct is too remote in time to justify investigation. An operations review committee also will be established to advise the commissioner in relation to the handling of complaints. The commissioner is required to consult the committee before refusing to investigate a complaint or before deciding to discontinue investigation of a complaint. The committee will include the commissioner and an assistant commissioner, the Commissioner of Police, a nominee of the Attorney General, and two persons appointed to represent community views. The committee will provide the commissioner with an independent source of advice and will allow persons with relevant expertise and legitimate interests to contribute to the work of the independent commission.

Where the commission investigates a matter it will have power to obtain statements of information and to inspect documents and premises of public authorities. In this respect the commission's powers will be similar to those of Ombudsman. The commission, like the Ombudsman, will be able to override claims of privilege by public officials in obtaining documents and information. There will also be powers similar to those of the National Crime Authority and the State Drug Crime Commission, to obtain documents and other things from private persons, where these may be relevant to the investigation. The commissioner will have the power to apply to a justice for a search warrant, or to issue a search warrant himself. The commission will have power to apply for warrants for listening devices under the Listening Devices Act. I will also be requesting the Commonwealth Government to make available to the commission, under Commonwealth legislation, the power to obtain warrants for telecommunication interceptions.

The commission will have the power to apply for an injunction from the Supreme Court in circumstances where conduct which is about to occur could cause irreparable harm. There will also be power to apply to the court for restraining orders under the Crimes (Confiscation of Profits) Act. The commissioner or an assistant commissioner can also hold hearings in a similar way to a Royal commissioner, and with comparable powers. Hearings are to be held in public unless the commission is satisfied it is in the public interest that the hearing be held in private for reasons connected with the subject-matter of the investigation, or the nature of the evidence to be given. At the hearing the person presiding is to announce the general scope and purpose of the hearing. Persons who are substantially and directly interested in a hearing may be given leave to appear and to be represented by a specified legal practitioner.

As with Royal commissions, the commission will have the power to summon persons to give evidence or to produce documents. A person summoned to give evidence is obliged to answer questions notwithstanding any ground of privilege or any other ground. An answer which tends to criminate the person cannot, however, be used in subsequent proceedings against the person. The commissioner will also be able to recommend to the Attorney General that a witness assisting the commission be granted an indemnity. The commissioner, and only the commissioner, will have the power to issue a warrant for the arrest of recalcitrant witnesses. The commissioner will not be able to punish for contempt. Any contempt may, however, be certified to a judge of the Supreme Court, and the judge would then deal with the matter.

The proposed Independent Commission Against Corruption will not have power to conduct prosecutions for criminal offences or disciplinary offences, or to take action to dismiss public officials. Where the commission reaches the conclusion that corrupt conduct has occurred, it will forward its conclusion and evidence to the Director of Public Prosecutions, department head, a Minister or whoever is the appropriate person to consider action. In doing so the commission can make recommendations. The person to whom the matter is referred is not required to follow the recommendation. However, the commission can require a report back on what action was taken. Where the commission considers that due and proper action was not taken, the commission's sanction is to report to Parliament. It is important to note that the independent commission will not be engaging in the prosecutorial role. The Director of Public Prosecutions will retain his independence in deciding whether a prosecution should be instituted.

I made it clear in my statements before the election that the proposed Independent Commission Against Corruption would be responsible to Parliament, and not to the Executive Government. The independence of the commission and its responsibility to Parliament is constituted in a number of ways. In exercising functions and powers under the legislation the commission is not subject to direction and control by the Executive Government. The commission can be removed only by the Governor on the Address of both Houses of Parliament. There will be a parliamentary joint committee of the commission on the findings of investigations, the results of public hearings and on administrative and policy matters will be forwarded directly to the Presiding Officers of both Houses of Parliament. The commission will not be subject to public service legislation. With minor exceptions, regulations under the legislation will be made on the recommendation of the commissioner.

I have covered very briefly the main features of this legislation. I will, however, table additional material which may be of assistance to honourable members. The Government recognises the importance of appointing a commissioner with experience and judgement to exercise the important functions and formidable powers established by this legislation. The Government also recognises the need to appoint a person of strength, independence and impartiality who is not afraid to make difficult decisions. We are also mindful of the need to ensure that the independent commissioner and the commission do not become politicised. The position of commissioner will itself be a high office of public trust and the Government will ensure that the person appointed will be a person of integrity and independence, with the necessary experience and judgement.

In conclusion, I simply want to reiterate that my Government will not tolerate a soft or watered-down approach to corruption in public administration. Anything short of strong and decisive action will not meet the legitimate and, indeed, long overdue expectations of the people of this State. This Government is determined to take decisive action against corruption and to restore integrity to the public sector. We have a mandate to do that. We have a plan of action to achieve it. The bill is a central component of the Government's progra.

I commend the bill to honourable members. I suggest that they study it closely and when we come to debate the measure they bear clearly in mind the very great responsibility they hold in trust for the people of this State - to ensure that the public institutions that are central to a democratic society are beyond reproach and deserving of public confidence. The Government will be happy to provide technical briefings to all members of this House who may wish to receive them prior to the debate. I strongly commend the bill.