Recent media coverage about provisions in the ICAC Act which appear to allow public officers to claim legal costs even when convicted of certain offences has raised a number of questions about the operation of these laws, about which the Law Society has attempted to provide some clarity in its submission to Parliament and summarised in this statement.

The uncertainty around who can claim legal costs and the process of approving reimbursement claims also highlights the importance of properly debating and considering proposed laws before putting them to a vote, which the Society will elaborate on further in this statement.

The Law Society has written to State Parliament with a detailed analysis of some of the contentious issues raised in relation to the ICAC provisions that allow reimbursement of legal costs, which the Society hopes will help to clarify some of the confusion surrounding these complex provisions. The Society has also suggested there should be further consultation on these provisions to ensure they are clearly understood and give effect to the policy intentions of the legislation.

Who can and cannot apply for reimbursement of legal costs?

The ICAC Act states that a public officer who is the subject of an ICAC investigation can apply for reimbursement of legal costs, with one exception. A person who has been convicted of an indictable offence that constitutes “corruption in public administration” can NOT be reimbursed for legal costs.

A public officer can include a government employee, member of parliament, judge, pubic teacher, police officer and other government agency officers.

What kind of offences can a public officer be convicted of and still apply for legal costs?

As the non-reimbursement exception only applies to indictable offences that constitute corruption in public administration, it follows that public officers who are subject to ICAC proceedings can apply for reimbursement for legal costs if:

• Convicted of a summary offence that constitutes corruption in public administration
• Convicted of an indictable offence that does NOT constitute corruption in public administration
• Convicted of any other offence (eg a summary offence) that does NOT constitute corruption in public administration

What kind of legal costs can a public officer apply for?

Under the ICAC Act 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. The Act does indicate that a person can also be reimbursed for any reviews or appeals arising out of an ICAC investigation.

Does the Attorney General have any discretion as to whether to award legal costs to those eligible to apply for a reimbursement?

Generally not. Providing that the person claiming for reimbursement of legal costs satisfies the criteria set out in the Act, then the Attorney General is required to grant the reimbursement. The Attorney General has no discretion to deny reimbursement once the conditions are satisfied.

When a person applies for legal costs, the Crown Solicitor’s Office (CSO) will review the costs claims to determine whether they are reasonable. Once the CSO certifies that the costs are reasonable, the reimbursement can be made.

The provisions say that the person must wait until the finalisation of the ICAC investigation before making a claim.  Once the investigation is complete the person can immediately apply for reimbursement of their costs of the investigation. If the person is later charged and then ultimately convicted of a summary offence or other offence that is not an indictable public corruption offence, there is no requirement to pay back the money.

Is it appropriate that a person who has been convicted of an offence following an ICAC investigation be able to recoup legal costs?

The Law Society has not formulated a position on the appropriateness or otherwise of the cost reimbursement provisions in the ICAC Act, but notes possible policy reasons as to why reimbursement is available.

Those involved in ICAC investigations are subject to strict secrecy provisions. A lawyer would be one of the few people that person who is the subject of an investigation can speak to about the case.

Most people who are investigated by ICAC would be government employees whose financial position is such that they would be earning too much to qualify for legal aid, but not enough to fund a private lawyer for a lengthy period. Therefore, a scheme that provides reimbursement may be the only way a person can receive the legal representation they need.

If a person who is the subject of an ICAC investigation is ultimately convicted of a summary offence that is considered trifling in the scheme of things or the result of inadvertent conduct, it may be considered fair that the person is able to claim costs for legal services provided in relation to the ICAC investigation.

The Law Society is further examining these provisions and has not formed a view on these points, but has merely suggested certain policy considerations that may have informed the current provisions.

Do the provisions need to be reviewed?

In the Law Society’s view, yes. Given the confusion that seems to surround the operation of the reimbursement provisions, some unclear wording in the legislation about the procedures to be followed when making a claim for reimbursement, the fact that the CSO is currently reviewing the ex gratia payment policy under the ICAC Act, and the haste in which the reforms were passed, the Law Society considers that these provisions should be reviewed. In fact, 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.

Are there other problems relating to the ICAC reforms?

Potentially. The Law Society, in its submission on the proposed reforms and in its “Key Election Issues” submission, noted that the amendments to the ICAC Act removed the ability of ICAC to inquire into a range of offences including theft, money laundering, deception and dishonest dealing with documents (which now fall outside the definition of corruption) and prohibit ICAC from investigating matters to which parliamentary privilege applies, and that the effect of these changes could significantly reduce protections for whistle-blowers. The ICAC reforms have likely significantly narrowed the circumstances in which a public officer can seek protection to expose corruption.  However, these potential flow-on effects of the ICAC reforms still do not seem to have been considered, or at least not ventilated publicly.

In the lead up to the election the Society called for a review of the Public Disclosure Act to ensure that whistle-blower protections were adequate.

A NOTE ON THE ICAC REFORM PROCESS

Leaving aside the question of whether or not it is appropriate that a public officer convicted of certain offences should have their legal costs reimbursed, 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.

In September 2021, SA Best MLC Frank Pangallo introduced a Bill to reform the ICAC Act. The Bill passed the House of Assembly less than 24 hours after being debated in the Legislative Council, where 19 pages of amendments had been tabled. With barely any parliamentary debate or consultation with other stakeholders, major reforms to ICAC were passed with unanimous parliamentary support. Members of the public barely had time to access and consider the Hansard record of debate in the Legislative Council before the Bill passed the House of Assembly the following day.

The Law Society provided a submission to then Attorney General Vickie Chapman as well as Mr Pangallo expressing concern at the lack of consultation, debate and transparency in the process, and stated that “full and proper community and stakeholder consultation is essential in the consideration of all legislation, particularly for comprehensive legislative proposals with far-reaching and potentially unintended consequences”.

Parliament has no formal obligation to consult externally on proposed legislation. Members of Parliament have been elected by the public to make laws on their behalf. However, there is a reason why it is considered best practice to consult widely. The Parliament has benefitted greatly from consultation with relevant stakeholders, such as the Law Society, whose detailed and considered advice from an expert legal perspective has in the past led to legislation so that it is more legally watertight, more effectively delivers on the legislation’s intent, and avoids unintended problems.

The Law Society has a proud history of providing constructive, technical and apolitical advice to Parliament, evaluating legislation with regards to fundamental principles of justice, interaction and consistency with existing laws, clarity of legal expression, and the potential impact of proposed laws on the community and the legal system.

At a more fundamental level, 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.

JUSTIN STEWART-RATTRAY, PRESIDENT, LAW SOCIETY OF SA