Integrity Commission Act 2009 – Legislative Reform Public Consultation
September 2022
Some Submission Preparation Notes for Consideration:
As per the Justice Department Discussion Paper provided, the government is seeking feedback on particular identified areas for potential reform raised since the 2016 Cox Review Report, upon which the government does not yet have a decided position:
▪ other general matters relating to the Act identified through consultation with the Commission, some related to the Cox Review Report;
In general, I agree with the outstanding Cox recommendations detailed in Appendix A, reserving right to critique any resulting draft legislation
▪ potential reforms arising from the Commission’s 2018 own-motion report that recommended review of Tasmania’s ‘Disclosure of official secrets” and “Unauthorised access to a computer’ offences. The offences referred to are in sections 110 and 257D of schedule 1 of the Criminal Code Act 1924 (Tas) and section 43C of the Police Offences Act 1935 (Tas); and
In general, I agree with the outstanding Cox recommendations detailed in Appendix A, reserving right to critique any resulting draft legislation
▪ potential reforms arising from a 2021 decision of the Commission in respect of its jurisdiction over members of parliament in relation to election campaigns.
I agree this ‘loophole’ must be addressed. The election campaign period is an intense period where influence and access are sought to those seeking election, and promises are made by those seeking election. We are still witnessing the fall-out of the election grants promises made during recent state elections, which at the least risks undermining confidence in public integrity, and at the worst could be examples of the exertion of undue influence.
Expand the Brief
However, the current review of the Act also provides an opportunity to raise other aspects relating to the Act and its application. An opportunity, for example, to argue for a strengthening of other aspects of the Act and the Integrity Commission’s scope and powers beyond the matters raised specifically in the Departmental Discussion Paper.
Capacity to investigate third parties corruptly influencing public sector
The lack of capacity to investigate third parties and their potential corrupting influence upon the public sector, or public officers, is currently a glaring omission from the Tasmanian Integrity Commission powers, particularly when compared with its interstate counterparts.
Section 4, ‘Interpretation’ of the Tasmanian Integrity Commission Act 2009, defines “misconduct” solely in relation to conduct, or attempted conduct that may be considered a breach, dishonest or improper by a public officer.
In June 2022, the Queensland Crime and Corruption Commission issued a Discussion Paper which raised this particular source of potential corruption. This paper states:
“… the means by which people access elected officials and public sector decision-makers in order to effect or encourage a particular outcome —have intensified. While in many circumstances access to government decision-makers is conducted legitimately and in accordance with existing regulations, corruption risks may still arise. A corruption risk arises when some individuals or entities may have privileged access to decision-makers, and may rely on personal relationships and connections to influence decision-making processes. That is particularly so where those modes of access sit outside the established regulatory framework which is intended to ensure transparency around matters of advocacy and lobbying.”
Crime and Corruption Commission Queensland, d, Influencing Practices in Queensland Discussion Paper,, June 2022; pg 3.
In Tasmania, those “modes of access” remain outside the Integrity Commission, which is a major component of our regulatory framework.
Hence the Tasmanian Integrity Commission is not permitted to investigate any conduct, or attempted conduct that could also be considered a breach, dishonest or improper by any private sector, or third party, that may seek to: “adversely affect, directly or indirectly, the honest and proper performance of functions or exercise of powers of [a] public officer.”
For example, should concerns be raised of a private entity seeking to exert undue influence upon a state sector employee that could sway a decision or provide an advantage to the third party – the Tasmanian Integrity Commission could investigate the state sector employee, as a public officer, but not necessarily the behaviour of the private entity.
There are existing interstate examples that do include powers to investigate third parties apparently seeking to improperly influence public officers:
- Queensland’s Crime and Corruption Act 2001, section 15.
- NSW’s Independent Commission Against Corruption Act 1988, section 8.
- Northern Territory’s Territory’s Independent Commissioner Against Corruption Act 2017, section 10.
While noting that due to specified different scopes and range of powers across the array of interstate integrity and anti-corruption bodies means it is not always possible to compare ‘apples with oranges’, the capacity to investigate the potentially corrupting influence of third parties on the public sector, and public officers including elected representatives should be a consistent across them all.
Public Hearings
Since its establishment in 2009 the Tasmanian Integrity Commission has not held any public hearings.
Currently the Integrity Commission Act 2009 does provide for the Commission to hold public hearings should an investigation warrant an Integrity Tribunal – however whether to hold public hearings or not is at the discretion of the Commission, which is required to balance the machinery of justice with procedural fairness considerations.
There is an argument that the default position should be to require the Commission to determine whether public hearings are in the public interest, and if so, then public hearings are to be held unless a case is made for procedural fairness and/or wellbeing of individuals involved considerations warrant the foregoing of public hearings for specific investigations.
Codes of Conduct
Currently, Codes of Conduct for Members of Parliament are to be reviewed by a Parliamentary Committee, despite the Integrity Commission originally being charged with the drafting of the current Code of Conduct in 2011.
Further, alleged breaches of the MPs’ Code of Conduct are to be referred to either the House of Assembly or the Legislative Council. Naturally this raises perceived conflict of interest over the apparent situation of MPs monitoring MPs.
It is recommended that the responsibility for reviewing and administering Codes of Conduct for Members of Parliament, and also the Code of Conduct for Ministers, should be transferred to the Integrity Commission (just as the administration of the Lobbyist Register and Lobbying Code of Conduct has been transferred from the Department of Premier and Cabinet to the Integrity Commission.)
It is worth noting any revision of Codes of Conduct relevant to Members of Parliament and parliamentary and ministerial staff will need to be undertaken in accordance with any relevant recommendations made in the Motion for Respect: Report into Workplace Culture in the Tasmanian Ministerial and Parliamentary Services, August 2022, released by Anti-Discrimination Commissioner Sarah Bolt.
Additional Resources:
- Australia Institute, National Integrity Commission Project papers
- Centre for Public Integrity, Designing the National Integrity Commission, June 2022
- Centre for Public Integrity, Australia’s Weakest Watchdog, October 2021
- Crime and Corruption Commission Queensland, Influencing Practices in Queensland Discussion Paper, June 2022
Meg Webb MLC – Independent Member for Nelson
