South Australian lawyers say ‘rushed’ anti-corruption laws allow public officials convicted of certain crimes to charge taxpayers their legal fees, and that Parliament’s handling of laws ‘fails the pub test’.
- The Law Society of SA says it appears convicted officials can charge taxpayers for things like appeals
- The Law Society has written to the Attorney General seeking clarification on the provision
- The government seeks further advice on the provision of the law
Last week, an exclusive ABC report outlined the implications of a little-understood change to the state’s Independent Commissioner Against Corruption (ICAC) law.
The legislation was unanimously passed by South Australia’s parliament after less than 24 hours of debate last year.
It allows MPs and officials to claim their legal costs for offenses such as deception, theft and dishonest handling of documents, as these crimes no longer fall under the ICAC definition of corruption.
Lawyer and director of the Center for Public Integrity Geoffrey Watson said last week that the public should be “outraged” by the provision, and he had “never heard of such a generous reimbursement program for government officials at public expense”.
“Simply put, a politician could be caught in the act of bribery, defend it, be found guilty and subject to scathing observations from a magistrate, and then recover his costs for defending the case without success,” Mr. Watson said.
In a written communication to Attorney General Kyam Maher, the Law Society of SA said its Civil Litigation Council had reviewed the provisions to “provide some clarity”.
She found that the repayment provisions applied at certain points in the legal process.
“A public official who is the subject of an investigation by the ICAC can only seek legal costs related to the investigation itself, and NOT costs incurred once charged, such as defense costs in criminal prosecution,” President Justin Stewart-Rattray said.
“The law states that a person may also be reimbursed for any review or appeal arising from an investigation by the ICAC.
“The Attorney General has no discretion to deny reimbursement once the conditions are met… [and] indeed, reimbursement must be provided unless the person is found guilty of a criminal act that constitutes “corruption in public administration”. »
The Law Society said it had not taken a position on whether or not such reimbursement was appropriate.
He said strict secrecy provisions, “trivial or accidental” offenses and the financial burden placed on people “not wealthy enough to fund a private lawyer for long periods of time” could be seen as justifications for the provision.
“The Company notes that whether such a policy should be adopted would be subject to further consultation,” she wrote.
Parliament’s handling of laws ‘fails the pub test’
The Law Society again called for a comprehensive review of the legislation, after “extremely limited and inadequate consultation”.
“The Society is concerned about suggestions in recent media coverage that parliamentarians who voted for the ICAC reforms were either unaware of or did not fully appreciate the effect of the provisions,” Mr. Stewart-Rattray.
“The Society believes that a broader review of the ICAC law would be appropriate, given other potential ripple effects of ICAC reforms that the Law Society has previously identified.
“The public should expect parliamentarians themselves to vigorously discuss the merits of proposed legislation.
“When there is a real or perceived intention to fast-track legislation with minimal scrutiny, it tends to fail the ‘pub test’.
“But more importantly, it can lead to bad law.”
Last week, Prime Minister Peter Malinauskas and Attorney General Kyam Maher said they would seek further advice regarding repayment arrangements.
In a statement, a state government spokesperson said, “The views of the Law Society on this matter will be provided and considered by those advising the Attorney General on this matter.”
Former Liberal MPs Troy Bell and Fraser Ellis are currently in court accused of using the Country Members Housing Allowance (CMAA).
The scheme allowed regional MPs to be reimbursed for nights spent in Adelaide on official business.
Both are charged with deception offenses for allegedly claiming tens of thousands of dollars to which they were not entitled.
Both MPs vigorously deny any wrongdoing.
Regardless of the outcome of the court, they can claim court costs.