Bringing the anti-corruption watchdog to heel
A parliamentary committee has recommended significant changes to the focus of South Australia’s anti-corruption body and moved to settle a demarcation dispute between it and the Ombudsman’s office, as Kym Davey explains.
Recommendations to redefine corruption in public administration and refocus the work of the Independent Commissioner Against Corruption (ICAC) headline the Crime and Public Integrity Policy Committee (CPIPC) report were tabled in Parliament yesterday.
Complementary proposals to confer the Office of the Ombudsman with powers to identify and investigate misconduct and maladministration in public administration, effectively means these matters will transfer away from the ICAC.
Those are two of 17 recommendations that will inevitably shift the centre of gravity of South Australia’s two principal integrity bodies – the ICAC and Ombudsman SA.
The Parliamentary Committee that has oversight of the two agencies has moved decisively to settle the demarcation dispute that has troubled the work of both agencies throughout the term of the former Commissioner, Mr Bruce Lander. The 214-page CPIPC report makes the case that substantial change is needed in our principal integrity bodies.
"It seeks to draw a line under South Australia’s initial experiment with a high-profile, all-powerful ICAC."
Should the main CPIPC report recommendations be accepted, the new Commissioner the Hon Ann Vanstone QC, will preside over a very different jurisdiction from that exercised by Mr Lander.
Other key recommendations from the Report of the Crime and Public Integrity Committee into Matters of Public Integrity in South Australia include:
- Establishing the Office for Public Integrity (‘OPI’) as a separate office, with responsibility to assess and, where appropriate, to determine matters;
- Removing references to serious or systemic misconduct or maladministration in public administration (being the classification that provided for the Commissioner to investigate such matters in the Independent Commissioner Against Corruption Act 2012 (‘ICAC Act’);
- Providing further exemptions from confidentiality or publication obligations set out in the ICAC Act, including to provide for the making of ministerial statements;
- Narrowing the definition of corruption to remove references to what may be considered less serious offending, and to otherwise include offending that may result in the imposition of a penalty of two or more years imprisonment;
- Renaming the office of the ICAC Reviewer as the ICAC Inspector, to enhance the investigative powers of the office and to provide for the office to review any additional functions conferred upon the Ombudsman or OPI as a separate entity;
- Providing for a right to make representations, where a person or body is to be named in a report, in respect of any proposal to include matters adverse to the person or body.
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Implementation of the report recommendations will depend on the views and resolve of the Attorney-General, the Hon Vicki Chapman MP. She will need to secure the support of her colleagues in government to make serious changes to the ICAC Act and to the Ombudsman Act 1972. (‘Ombudsman Act’).
Her task will perhaps be made easier because her parliamentary colleague, the Hon Denis Hood MLC, originally chaired the CPIPC Inquiry process. The SA Best representative on CPIPC, the Hon Frank Pangallo MLC, has now assumed that responsibility. He was elected to the chairperson position in September with support from Labor party members, the Hon Tom Koutsantonis MP and the Hon Justin Hanson MLC. Mr Pangallo has emerged as a parliamentarian with a keen interest in public integrity standards and the workings of the ICAC.
Interestingly, the CPIPC report looks to be a good example of party politics not getting in the way of a major policy review process. There is an apparent consensus reflected in the thoroughness and ambition of the report itself. That consensus appears to have been stimulated by concerns across the political spectrum about the way the ICAC was operating under Commissioner Lander. Sensational media reports, strong public statements by the former Commissioner and some memorable stoushes in committee hearing rooms over the past two years attest to the divide that has grown up between the political class and the ICAC.
So where exactly did this review process originate? The Inquiry report highlights Ombudsman Wayne Lines’ evidence to CPIPC in August 2018. At that time Mr Lines said he favoured a model by which the ICAC is conferred with power to deal with potential matters of corruption in public administration, and the Ombudsman is conferred with power to deal with potential matters of misconduct or maladministration in public administration.
Other issues emerged in 2018 and 2019 that piqued the interest of CPIPC. They included embarrassing problems with the confidentiality and publication provisions of the ICAC Act, issues with the management of police complaints and the apparent limitations on the role of the ICAC Reviewer. These, combined with the failed push by Mr Lander to secure ICAC powers to conduct public hearings for misconduct and maladministration cases, persuaded CPIPC that an Inquiry was needed.
Ombudsman Lines may well be surprised with the results of his advocacy in 2018. His complaint, that ICAC should be focussed more distinctly on anti-corruption work, and that the Ombudsman should be given the responsibility and resources to conduct misconduct and maladministration investigations, has been heard and supported. CPIPC has accepted similar submissions and recommended that the Ombudsman should take primary responsibility for these investigations, and consequently, there is no reason to make reference to ‘serious’ misconduct and maladministration in the ICAC Act. He may be daunted to see the seven new responsibilities CPIPC recommends he assume under an updated Ombudsman Act.
The report documents the evidence provided in submissions and oral evidence to the committee in some detail and provides comparison information on integrity bodies across all other state jurisdictions. While the particulars of these are too varied to summarise here, one statistic stands out about the resources allocated to each of the integrity bodies profiled. That is, in national comparative terms South Australia’s ICAC is currently generously funded and staffed (70x FTE and $19 million p.a.), while Ombudsman SA enjoys a staff and budget allocation only on par with Tasmania (20x FTE and $3 million p.a.).
If the main recommendations of the CPIPC are accepted, there will need to be a budget rebalance to provide for the allocation of misconduct and maladministration investigations and associated functions to the Ombudsman.
One of those important functions is not prominent in the report itself, but has significant ongoing implications for the public service. That is the proposal for much of the existing ICAC ‘education program’ to be assigned to Ombudsman SA. This is essential work that includes:
- the development and delivery of training to assist public authorities and officers to respond to and address incidences of corruption, misconduct and maladministration;
- evaluations of practices, policies and procedures of public authorities;
- and the publication of reports and research into corruption, misconduct and maladministration, demonstrating how they can occur and how they may be prevented.
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In his submissions the Ombudsman proposed that his office be conferred with a formal educative function. The report acknowledges this and recommends that while ICAC retain the anti-corruption education role, the Ombudsman should now take responsibility for the broader work seeking to raise standards of public administration. The Ombudsman has broad audit powers but these are not currently resourced. The transfer of the function to conduct evaluations of practices, policies and procedures of public authorities can potentially be catered for by tweaking powers already available under the Ombudsman Act.
This point is underscored by recognition of the requested change to the Ombudsman Act whereby Ministers will be required to explain to the parliament why inadequate steps have been taken to implement investigation report recommendations. Currently this strong incentive to corrective action is not in place. If it is introduced, it may in part address the concern raised by Commissioner Lander who noted in his 2019 Looking Back report that ‘there is no available metric by which to demonstrate measurable improvement in public administration in South Australia’.
"Public reporting and enforcement of agency remedial action is one metric that may prove to be a useful tool in the identification of public administration improvements."
Along with the key recommendation to narrow the statutory definition of corruption, the CPIPC report also proposes to alter the confidentiality provisions as set out in Section 54(3)(b) of the ICAC Act. This will provide further exclusions from the confidentiality obligations of an investigation where a disclosure is for the purpose of a person advising his or her employer(s), business partners and in some circumstances family members and health professionals.
The CPIPC also accepted the submission made by media representatives regarding obstacles to publishing a statement made by the ICAC in respect of an investigation. The committee agreed the publication provisions regarding statements made by the Commissioner or a Minister may be published in some circumstances. The CPIPC also recommended that inconsistent confidentiality provisions set out in the ICAC Act and the Ombudsman Act can result in confusion and should be standardised.
Two further areas of the report’s findings and recommendations are noteworthy. One is the proposal to establish the OPI as a separate office, with responsibility to assess and, where appropriate, to determine matters. CPIPC contends that the management relationship with the ICAC is not necessary. The OPI’s functions should also provide for it to determine the merits of a matter and not require that it be referred for consideration elsewhere. However, where there is doubt, such matters should be referred. This is a major operational reform requiring a level of formal liaison and cooperation between the ICAC and the Ombudsman that has been conspicuously deficient in recent years.
Importantly, CPIPC also made specific reference to streamlining the police complaints process by giving OPI the responsibility to assess matters and determine whether they should be closed or referred to SAPOL for action. Evidence has been provided that currently both the OPI and SAPOL are conducting first instance assessments of complaints. That approach has resulted in duplication and inefficiency. Under the new proposal, where the OPI determines not to refer a matter, it should convey that determination to the complainant with supporting reasons.
The second noteworthy area is the group of recommendations made about the proposed ICAC/Ombudsman Inspector; establishing an Integrity Standards Advisor for the purpose of providing confidential ethics and integrity advice to Members of Parliament, senior public officers and statutory office-holders – and requiring that the Judicial Conduct Commissioner not be an administrative decision-maker.
These recommendations are all well founded. The current ICAC ‘Reviewer’ role has proven to be an inadequate accountability mechanism and does not have jurisdiction over the Ombudsman. An ‘Inspector’ with defined investigative powers should, says CPIPC, approximate the role of the Commonwealth Inspector General of Intelligence and Security. The aim is to ensure that all agencies over which the Inspector has oversight act legally and with propriety, to require that they act in accordance with other applicable guidelines or directives, and to ensure that they respect human rights.
The proposal to establish an Integrity Standards Advisor to the parliament has merit, as has the recommendation to remove the existing potential conflict of interest with the ICAC appointed to the office of Judicial Conduct Commissioner. The CPIPC agreed with the recent concerns of Commissioner Lander in respect of circumstances where an administrative decision that he has made is the subject of an application for judicial review – whilst he is also the appointed Judicial Conduct Commissioner. The former Commissioner considered that in such circumstances a conflict arises. The CPIPC agreed and determined it would be appropriate to appoint a person who is not an administrative decision-maker – and to change the ICAC Act accordingly.
One concern about these three recommendations may be the requirement to establish still more agencies in public integrity administration. In the interests of consistency, congruence of effort and public understanding of how the system works, it may be wise for the government to consider making the Integrity Inspector also the Integrity Standards Advisor, and for that office to provide administrative support as needed to the Judicial Conduct Commissioner. There is a good case to be made for combining functions and roles wherever practical here.
Notwithstanding its size and the complexity of the issues it tackles, the release of the CPIPC report should be welcomed. The content should be carefully considered by the various players, including in government and by parliamentarians across party political divides. It now looks likely that there will be significant change to the ICAC model many have argued requires reform.
CPIPC and the parliamentarians and officers involved in conducting this review should be congratulated for this impressive body of work.
The report’s findings and recommendations aim to strengthen and modernise mechanisms to ensure integrity in public administration in our state.
Time will tell if their efforts yield results.
Kym Davey was formerly the Manager Administrative Improvement in Ombudsman SA. He worked in the Ombudsman’s Office from 2011 to 2019.
