Commissioner Lander refl ects on seven years of investigating corruption, misconduct & maladministration By Michael Esposito

Commissioner Lander reflects on seven years of investigating corruption, misconduct & maladministration

MICHAEL ESPOSITO

Bruce Lander ended his seven-year tenure as South Australia’s Independent Commissioner Against Corruption on 1 September. His final public report, “Looking Back”, reflects on the past seven years as the State’s chief public integrity watchdog and makes a number of recommendations for reform of ICAC legislation.

MEASURE OF SUCCESS

Mr Lander said he was proud of what his office had achieved over the past seven years, and expressed the view that the impact and value of the office was not as well understood as it could be.

He made the point that the success of the office should not be measured by way of the number of successful prosecutions that have arisen from an ICAC investigation, but instead should be evaluated by considering he broader impact of the ICAC in terms of enhancing and promoting integrity within public agencies.

“Corruption investigations that do not lead to a prosecution nevertheless result in a detailed review to identify weaknesses in an agency’s practices, policies, procedures and those findings are routinely communicated to agency heads,” Mr Lander said in his report.

Mr Lander cited several examples of investigations leading to significant reforms, including: • Changes to the manner in which

Government assesses unsolicited bids (resulting from the Gillman investigation) • Reforms to the operation of mental health facilities (resulting from the

Oakden investigation) • Significant improvements in administration and governance practices in the Public Trustee, Safework SA and

City of Playford Council, following investigations into those organisations.

The ICAC office has developed training programs to improve governance and promote integrity in pubic bodies, and has published numerous reports based on state-wide integrity surveys, that address integrity issues. RESOURCES

While all agencies would welcome additional resources, Mr Lander by and large has been satisfied with the level of funding allocated to his office.

However, Mr Lander reported that his request for funding to conduct an evaluation of SA Health was rejected by the State Government, who argued that the ICAC office had discretion with regards to the use the funds in its existing budget to conduct investigations.

Mr Lander said that he sought an additional $2 million in funding to evaluate SA Health because “an evaluation of SA Health could not be undertaken at the same cost as previous and current evaluations for the simple reasons that SA Health is so big and so specialised”.

ASSESSING SERIOUSNESS OF CORRUPTION & MALADMINISTRATION

Mr Lander observed in his report that his office had progressively become better at assessing evidence and discerning whether the conduct that is the subject of an assessment was likely to amount to corruption.

“We have become better at focusing our investigation resources on the most serious and complex corruption matters

and we have advanced our capacity and expertise to investigate them,” he said.

Mr Lander supported the existing jurisdiction of ICAC, which includes misconduct and maladministration in addition to corruption, observing that the line between misconduct, maladministration and corruption is often unclear, and the evidence the office evaluates in order to discern the gravity of the conduct is often incomplete.

“The benefit of having a single agency capable of dealing with all three forms of impropriety is that it can continue to address a matter even when information changes the way in which the impugned conduct is assessed.”

TRUST V OVERSIGHT: A BALACING ACT

The “Looking Back” report reflected on the delicate balance between trust and oversight in public institutions. Mr Lander acknowledged that too much oversight could be oppressive and degrade trust, but noted that there has been a number of occasions where, during the course of the ICAC office’s work, institutions have been found to have had insufficient oversight mechanisms. He noted the heightened risk of corruption, misconduct and administration when public officers who gain the trust of employers operate with minimal oversight.

PARLIAMENTARY CODE OF CONDUCT

The travel expenses saga that has dogged the State Liberal Party has given rise to a complex debate about the privileges and ethical responsibilities of parliamentarians.

Mr Lander, in his recent report, repeated his call for a Parliamentary Code of Conduct.

“A code of conduct provides for agreed clear standards and rules by which behavioural breaches can be measured, and provides the justification upon which appropriate disciplinary action may be taken by the parliament,” Mr Lander said in the report.

Mr Lander notes that the original Bill to establish an ICAC included a provision to form a Parliamentary Standards Committee, whose function would have been to monitor and promote standards of conduct and report any contraventions of the standards to the house. However, the clause in the Bill to establish such a Committee was rejected.

“The unique relationship between members of Parliament and their electorates should not be invoked as an argument against accountability,” Mr Lander said. “Misconduct and improper behaviour by members of Parliament does not need to be tolerated as the price for maintaining parliamentary supremacy.”

RECURUITMENT PROCEDURES

Mr Lander said in his report that poor recruitment practices created significant risks in public administration, and noted two particularly concerning issues: • Poor screening and vetting practices • Recruitment processes compromised by conflicts of interest, favouritism, nepotism and discrimination

In response to Mr Lander’s recommendations, the State Government in 2018 implemented a register of pubic officers who have been dismissed for misconduct or other inappropriate conduct, or who have resigned during the course of investigation into their conduct.

CONFLICT OF INTEREST

Mr Lander said conflict of interest issues made up a large chunk of integrity matters that his office has looked into.

“Many public officers, including some in very senior positions, still struggle to understand why integrity in public administration requires that all conflicts of interest be identified, declared and managed,” he said.

The ICAC office has created an online education course that teaches participants about identifying and disclosing potential conflicts of interest, and how they should be managed.

PERVERSE INCENTIVES

Mr Lander said in his report that “perverse incentives lurk behind corruption, misconduct and maladministration matters and are usually underappreciated.”

Mr Lander said that examples of perverse incentives included circumstances where people were rewarded for finding efficient means of achieving outcomes which bypass integrity measures.

He also noted the concerning practice of agencies spending unexpended funds before milestone dates with little justification for the need for those funds to be spent. This can result in ill-conceived, unnecessary or unauthorised expenditure.

CHANGING THE NAME

In the “Looking Back” report, Mr Lander recommends a name change to better reflect the functions of the Commissioner, noting that ICAC stands for Independent Commissioner Against Corruption and that there is no actual Commission as such.

Mr Lander suggested that A “Public Integrity Commission” be established, and for a Commissioner for Public Integrity to lead that Commission.

“It would allow the public to understand better the scope of the work that my office undertakes and also its purpose,” Mr Lander argued. “The scope and purpose are much broader than corruption alone because they extend to receiving and assessing complaints and reports, receiving disclosures and notifications under the PID Act, the oversight of police complaints and reports and disciplinary investigations, misconduct and maladministration in public administration, evaluations of public authorities and a broad education function.” DEFINITION OF CORRUPTION

Mr Lander said there was merit in narrowing the definition of corruption under the ICAC Act, stating that the broad definition can lead to “curious results”.

Mr Lander preferred a definition of corruption that focuses on behaviour that constitutes an abuse of public office to obtain a benefit or cause a detriment.

DEFINITION OF SERIOUS OR SYSTEMIC CONDUCT

Mr Lander suggested that the ICAC Act focuses almost exclusively on serious misconduct and does not pay enough attention to systemic misconduct.

He stated: “Systemic misconduct or maladministration might arise in circumstances where each incident of misconduct or maladministration is not ‘serious’, but collectively these episodes represent a pattern of behaviour or practice that is infecting the whole or large part of a working group, section, agency or body. The systemic nature of the behaviour may be having a significant adverse impact upon integrity in an institution but is not being recognised because it does not meet the present definition.”

OBTAINING DOCUMENTS

Mr Lander argued that the power under section 23 (3) of the ICAC Act be amended to enable the Office for Public Integrity (OPI) or Commissioners to issue a notice requiring an inquiry agency, public authority or public officer to produce documents which would assist in the investigation of a complaint.

Mr Lander clarified that the proposed amendments would not abrogate a public officer’s right to claim privilege against self-incrimination.

REFERRALS TO THE DPP

Mr Lander asserted that, in his view, the Commissioner was entitled to refer evidence obtained by an investigation into public corruption directly to the Director of Public Prosecutions.

However, a recent District Court judgment 1 in relation to an application for a permanent stay of criminal proceedings held that the ICAC’s referral of the matter direct to the DPP was contrary to the ICAC Act.