A watered down ICAC gets called up for a full-bodied political scandal

What, exactly, is the role of the state's anti-corruption watchdog?

Is it meant to be a fully empowered integrity agency capable of bringing public servants and politicians to heel?

Or is it a place the government of the day can turn to when it wants to show it's on top of an escalating political scandal?

Observers of the last 48 hours in South Australian politics could be forgiven for thinking it's the latter.

The scandal in question

The Malinauskas government is currently dealing with a "who knew what when" scandal around an alleged attempt from an outlaw gang member to muscle in on a labour hire company that won a contract on the $15.4 billion Torrens to Darlington project.

A company representative notified Transport Minister Joe Szakacs's chief of staff and Child Protection Minister Alice Rolls about the allegations at a meeting on September 11.

Mr Szakacs's office passed on those claims to the South Road project team but not to Premier Peter Malinauskas, who said he first learned about the allegations when a court case lodged by company shareholders against the outlaw gang member was reported by News Corp on Sunday, October 18.

The government suspended its contract with the company that weekend. 

It has also said repeatedly that the bikie in question never stepped foot on the project site.

But the Liberal Party has been prosecuting the argument that the government should have acted sooner and been more upfront about the September 11 meeting, which only came to light via The Advertiser's reporting.

Mr Szakacs also conceded it was his mistake not to notify the premier earlier.

After a week of negative press about an issue that now threatens to escalate into the most damaging of SA Labor's four-and-a-half years in office, the premier stepped up to the plate on Monday to sort the political mess.

The ICAC letter

Mr Malinauskas revealed on Monday he had written to SA's Independent Commission Against Corruption (ICAC) requesting an evaluation of the Torrens to Darlington project.

The government sold the request as a "proactive" step to ensure the project's integrity, with the premier saying it would be an opportunity to "double check" that the Department for Infrastructure and Transport had the right safeguards in place to prevent organised crime infiltration.

"If there's any way they can improve, I want to know about it because then we'll do that," the premier said.

He also noted the ICAC could reject the request, given the independence of the office.

But ICAC head Emma Townsend announced later that day she was "independently of the view" it was in the public interest to evaluate the department's policies.

The government has a genuine desire to keep organised crime out of the state's major infrastructure projects.

Aside from the potentially disastrous public policy implications, SA ministers are well aware of the political damage these issues have caused Labor in Victoria.

But there can be no doubting either their desire to be seen to be keeping organised crime out of major infrastructure projects, following a week of accusations that they have not acted on this quickly enough.

The premier's weekend letter to the ICAC was accompanied by a well-planned media rollout, detailed press release, two studio radio interviews and a doorstop press conference. The desired "Premier moves to block criminals from T2D project" headlines followed.

It has not, however, made the story go away.

An evaluation or an investigation?

There is devil in the detail too about the scope of ICAC's inquiries.

Its time frame is unclear, with Ms Townsend indicating it would take "considerable time and resources to complete".

She has also emphasised that an evaluation is entirely separate to an ICAC investigation, which is conducted under strict secrecy and focused on specific allegations.

Opposition Leader Ashton Hurn has been keen to highlight what the ICAC is, and isn't, focusing on.

"The government, as far as we can see, has asked the ICAC to do an evaluation about processes and policies and procedures," she said.

"They haven't asked them to get to the nub of the question … about what senior members of the Labor government knew, and when, and what they did with that information."

The premier said on Tuesday that there was "nothing about the ICAC conducting an evaluation that precludes them from conducting an investigation", if they deemed one necessary.

But if it does uncover something unsavoury on the South Road project during its evaluation, has state parliament set it up to succeed?

The watering down of ICAC

In 2021, both the Liberal and Labor parties passed legislation to curb the ICAC's powers.

The move came after a series of high-profile cases that its critics pointed to as examples of the anti-corruption body's overreach.

The 2021 changes narrowed the definitions of corruption and misconduct, limited its ability to commence investigations, and prohibited the commission from referring evidence briefs to the Director of Public Prosecutions (DPP).

In a statement to the ABC on Tuesday, Ms Townsend confirmed that ICAC was still "not able to commence an investigation on its own motion".

"In addition, ICAC cannot receive complaints or reports … all such complaints and reports must be made to the Office for Public Integrity," she said.

"The OPI conducts an independent assessment of that, and if the assessment is such that a potential issue of corruption is raised, then it is referred to ICAC to determine whether or not to commence an investigation."

So why does this matter regarding the Torrens to Darlington project?

It creates the slightly absurd situation where the ICAC, if it stumbles across something it believes to be a potential issue of corruption on South Road, has to refer it to the OPI, so the OPI can refer it back to the ICAC.

Adding to this, if ICAC does complete a corruption investigation, it has to refer it to SA Police rather than the DPP.

This can add between six to 12 months getting a corruption matter to trial, Ms Townsend has estimated.

"I have previously expressed concern about the consequences of the inability to refer matters directly to the Director of Public Prosecutions, including inefficiency and unnecessary delay," Ms Townsend said, adding she has made "comprehensive submissions" about this to a parliamentary committee.

"These concerns apply to all matters ICAC refers for potential prosecution."

The premier said there was "no evidence" to suggest ICAC cannot do the job because of the 2021 law changes.

"ICAC has a wide range of powers available to it to assist in conducting its current evaluation and in investigating any allegations of corruption," a government spokesperson said.

Perhaps the saga surrounding South Road is a test case for the ICAC’s powers.

It’s certainly already been a stern test for a couple government ministers.