South Australian lawyers say “hurried” anti-corruption laws allow public officials convicted of certain crimes to charge taxpayers for their legal fees, and parliament’s handling of the laws “fails the pub test”.
Last week, an ABC exclusive report outlined the implications of a little-understood change to the state’s Independent Commissioner Against Corruption (ICAC) Act.
The legislation was passed unanimously by South Australia’s parliament following less than 24 hours of debate last year.
It allows MPs and public servants to claim their legal costs back for offences including deception, theft and dishonestly dealing with documents, because those crimes no longer fall within the ICAC Act’s definition of corruption.
Barrister and Centre for Public Integrity director Geoffrey Watson last week said the public should be “outraged” by the provision, and he had “never heard of such a generous repayment scheme for government officials at the public’s expense”.
“In simple terms, a politician could be caught out in an act of corruption, defend it, be found guilty and be the subject of scathing observations by a magistrate, and then recover his or her costs for having unsuccessfully defended the matter,” Mr Watson said.
In a written submission to Attorney-General Kyam Maher, the Law Society of SA said its Civil Litigation Council had examined the provisions to “provide some clarity”.
It found the reimbursement provisions applied at certain points in legal proceedings.
“A public officer who is the subject of ICAC investigation can only apply for legal costs that relate to the investigation itself, and NOT the costs incurred once charged, such as the costs of defending criminal proceedings,” president Justin Stewart-Rattray said.
“The Act does indicate that a person can also be reimbursed for any reviews or appeals arising out of an ICAC investigation.
“The Attorney-General has no discretion to deny reimbursement once the conditions are satisfied … [and] effectively, reimbursement is to be provided unless the person is convicted of an indictable offence that constitutes ‘corruption in public administration’.”
The Law Society said it had not formed a position regarding whether such reimbursement was appropriate or not.
It said strict secrecy provisions, “trifling or accidental” offending, and the financial burden placed on individuals “not wealthy enough to fund a private lawyer for prolonged periods” could be viewed as justifications for the provision.
“The Society notes that the question of whether such a policy should be adopted would be a matter for further consultation,” it wrote.
Parliament’s handling of laws ‘fails the pub test’
The Law Society again called for a full review of the legislation, following “extremely limited and inadequate consultation”.
“The Society is concerned by suggestions in recent media coverage that parliamentarians who voted for the ICAC reforms were not aware of or did not fully appreciate the effect of the provisions,” Mr Stewart-Rattray said.
“The Society believes a wider review of the ICAC Act would be appropriate, given other potential knock-on effects of the ICAC reforms that the Law Society has previously identified.
“The public should expect parliamentarians themselves to robustly discuss the merits of proposed legislation.
“When there is an actual or perceived intent to hurry legislation through with minimal scrutiny, it tends to fail the ‘pub test’.
“But more significantly, it can lead to bad law.”
Last week, both Premier Peter Malinauskas and Attorney-General Kyam Maher said they would seek further advice regarding the reimbursement provisions.
In a statement, a state government spokesman said: “The Law Society’s views on this matter will be provided to and taken into account by those advising the Attorney-General on this issue.”
Former Liberal MPs Troy Bell and Fraser Ellis are currently before the courts, charged over their use of the Country Members Accommodation Allowance (CMAA).
The scheme allowed regional MPs to be reimbursed for nights spent in Adelaide on official business.
Both are charged with deception offences for allegedly claiming tens of thousands of dollars they were not entitled to.
Both MPs strenuously deny any wrongdoing.
Irrespective of the outcome in the court, they are eligible to claim legal costs.
Written by Isabel Dayman. Originally published in the ABC on Sat 6 Aug 2022.