Tasmanian Bills Clause Notes Tasmanian Bills Clause Notes[Index] [Search] [Download] [Bill] [Help]
Integrity Commission Bill 2009
Clause Notes
PART 1 PRELIMINARY
Clause 1 Short Title
Cites the title of the Bill.
Clause 2 Commencement
Provides for the commencement of the Act on a day or days to be proclaimed.
Clause 3 Object and objectives
Sets out the objects and objectives of the Act.
The purpose of these is to guide the work of the Integrity Commission and assist in the interpretation of the Act. They are
consistent with the recommendations of the Joint Select Committee on Ethical Conduct.
Clause 4 Interpretation
Contains definitions and other interpretive provisions.
Misconduct and serious misconduct are defined for the purposes of the Act.
Clause 5 Public authorities
Complaints about public authorities may be made to the Integrity Commission. This clause defines `public authorities' to
cover the public sector in the broadest sense with a small number of specific exceptions, such as judicial officers and the
Governor.
The coverage of the Act goes slightly further than recommended by the Joint Select Committee in recommendation 18.11.
Clause 6 Designated public officers
The Integrity Commission has specific responsibility for dealing with complaints in relation to certain categories of officials,
1
including Members of Parliament, councillors, CEOs and holders of statutory office.
PART 2 INTEGRITY COMMISSION
Division 1 Establishment of Integrity Commission
Clause 7 Establishment of Integrity Commission
This clause establishes the Integrity Commission.
Clause 8 Functions and powers of Integrity Commission
This clause outlines the Integrity Commission's functions and powers. The clause provides of detail of the education and
prevention and complaints and investigations functions proposed by the Joint Select Committee.
Clause 9 Principles of operation of Integrity Commission
This clause gives guidance to the Integrity Commission about the performance of its functions and exercise of its powers.
Two key principles are highlighted, namely not duplicating the work of other bodies and working cooperatively with other
bodies to prevent and deal with misconduct.
Clause 10 Integrity Commission not subject to direction or control of Minister
The Integrity Commission is not subject to the direction or control of the Minister in respect of the performance or exercise of
its functions or powers.
Clause 11 Annual and other reports
The clause sets out reporting requirements for the Integrity Commission.
Division 2 Board of Integrity Commission
Clause 12 Establishment of Board of Integrity Commission
The Board of the Integrity Commission is established.
Clause 13 Role of Board
This clause sets out the role of the Board. Primarily it will oversee the work of the Integrity Commission staff, including the
2
CEO and promote a culture of integrity in the public sector.
Clause 14 Members of Board
This clause provides for membership of the Board. The Minister will be required to consult with a new Parliamentary
Standing Committee in relation to the skills based lay members prior to appointment.
Clause 15 Chief Commissioner
The clause sets out the process for the appointment of the Chief Commissioner, including qualifications and the requirement
to consult with the new Parliamentary Standing Committee.
Clause 16 Delegation
This clause gives the Board the power to delegate.
Division 3 Staff of Integrity Commission
Subdivision 1 Chief executive officer
Clause 17 Chief executive officer
This provides for the appointment of the CEO of the Integrity Commission following consultation with the new Parliamentary
Standing Committee.
Clause 18 Responsibilities of chief executive officer
The clause outlines the responsibilities of the CEO.
Clause 19 Delegation by chief executive officer
This clause gives the CEO power to delegate.
Subdivision 2 Officers, employees and authorised persons
Clause 20 Officers and employees
3
Integrity Commission staff will be State Service Act 2000 employees.
Clause 21 Authorised persons
The Integrity Commission will be able to second people from other public authorities to assist it to perform its functions. This
includes secondments from Tasmania Police or other Australian law enforcement agencies.
PART 3 RELATIONSHIP WITH PARLIAMENT
Division 1 Preliminary
Clause 22 Interpretation: Part 3, Division 1
The Auditor General is excluded from the definition of `integrity entity' in this Part because there is already a Parliamentary
Committee in place to oversee the work of the Auditor-General.
Division 2 Joint Standing Committee on Integrity
Clause 23 Joint Standing Committee on Integrity
This clause establishes a new Joint standing Committee on Integrity.
Clause 24 Functions and powers of Joint Committee
This sets out the Committee's functions and powers which include to oversight of the work of the Integrity Commission, the
Ombudsman and the State Service Commissioner in relation to misconduct.
The Committee can provide broad guidance and advice, but not direct the conduct of investigations or review decisions of the
Integrity Commission.
Clause 25 Resignation
This sets out process for resignation from the Committee.
Clause 26 Report to Parliament
The Committee is required to report to Parliament in each session.
Division 3 Parliamentary standards
Clause 27 Parliamentary Standards Commissioner
4
This establishes the office of the Parliamentary Standards Commissioner.
Clause 28 Function of Parliamentary Standards Commissioner
This outlines the functions of the Parliamentary Standards Commissioner which are advisory in nature.
Clause 29 Restriction of functions of Parliamentary Standards Commissioner
The Parliamentary Standards Commissioner cannot be involved in any complaint relating to the conduct of a Member of
Parliament if the Commissioner has provided advice on that matter.
Clause 30 Functions of chief executive officer in relation to Members of Parliament
The CEO can provide assistance in the preparation of guidelines for Members of Parliament and their staff.
PART 4 EDUCATIVE, PREVENTATIVE AND ADVISORY FUNCTIONS OF COMMISSION
Clause 31 Educative, preventative and advisory functions
This clause details the Commission's educative, preventative and advisory functions.
Clause 32 Public officers to be given education and training relating to ethical conduct
This requires public authorities to train their staff in ethical conduct.
PART 5 COMPLAINTS
Division 1 Receipt of complaints
Clause 33 Complaints
Complaints to the Integrity Commission must be made in writing and may be made about former public officers.
Clause 34 Registration of complaints
Complaints must be entered into a register.
Division 2 Actions on receipt of complaint
5
Clause 35 Assessment of complaint
Once a complaint is received the CEO makes a decision to dismiss the complaint or accept for a complaint for assessment.
Clause 36 Dismissal of complaint
This clause describes the grounds upon which a complaint may be dismissed. A `public interest test' is included in this
clause. The is no bar to retrospective complaints, however, the CEO may dismiss old complaints on a number of grounds
including that it is not in the public interest to be investigated.
Clause 37 Report of assessor
The complaints assessor must make a recommendation about whether the complaint should be dismissed, referred to another
body or handled by the Integrity Commission.
Clause 38 Actions of chief executive officer on receipt of assessment
The CEO makes a decision about how to handle a complaint and is required to notify the relevant public authority of this
decision. The complainant and the subject of the complaint may also be notified if appropriate.
Clause 39 Referral of complaint to relevant public authority
When a complaint is referred to another body for action the Integrity Commission may require progress reports, monitor or
audit the conduct of the investigation.
Clause 40 Referral of complaint to integrity entity
When a complaint is referred to an integrity entity (the Ombudsman, Auditor-General or State Service Commissioner) the
integrity entity must advise the CEO of the outcome.
Clause 41 Referral of complaint to Parliamentary integrity entity
When a complaint is referred to a Parliamentary integrity entity (the Speaker of the House of Assembly or President of the
Legislative Council) the Parliamentary integrity entity must advise the CEO of the outcome.
Clause 42 Referral of complaint to Commissioner of Police
When a complaint is referred the Commissioner of Police for action the Integrity Commission may require progress reports,
monitor or audit the conduct of the investigation.
Clause 43 Referral of complaint to other person
6
When a complaint is referred to any person other than those already specified for action the Integrity Commission may
require progress reports, monitor or audit the conduct of the investigation.
PART 6 INVESTIGATIONS
Division 1 Conduct of investigations
Clause 44 Appointment of investigator
If a complaint is accepted for investigation by the Integrity Commission an investigator is appointed.
Clause 45 Own motion investigations
The Integrity Commission does not need to receive a formal complaint before it appoints an investigator to investigate a
matter.
Clause 46 Procedure on investigation
An investigator has the freedom to decide how to investigate a matter provided that procedural fairness is observed.
Clause 47 Conduct of investigation
The clause provides an investigator the necessary powers to obtain information and evidence. An investigator may direct a
person to answer a question or produce documents.
Clause 48 Investigation to be conducted in private unless authorised by chief executive officer
Most investigations will be conducted in private because of the potential for damage to reputations.
Clause 49 Representation
A person required to give evidence or answer questions as part of an investigation may be represented by a legal practitioner
or other agent.
Clause 50 Investigator's power to enter premises
An investigator may enter any public authority's premises at any time, but will require consent or a warrant to enter other
premises.
Clause 51 Search warrants
7
An investigator can apply to a Magistrate for a search warrant.
Clause 52 Powers investigator while on premises
This clause outlines the powers an investigator has while on premises. Receipts must be issued for things removed from the
premises.
Clause 53 Application for use of surveillance device
An investigator, with the approval of the CEO, can apply to a Magistrate for a warrant for a surveillance device (e.g. audio,
visual or tracking device).
Clause 54 Offences relating to investigations
It is an offence not to comply with the direction of an investigation, unless the person has a reasonable excuse. There is
provision for a person to claim privilege (refer clause 92).
It is an offence to retaliate against a person who has give evidence to an investigator. It is also an offence to obstruct an
investigator.
Division 2 Procedure after investigation
Clause 55 Investigator's report
The investigator's report is to be submitted to the Board via the CEO.
Clause 56 Opportunity to provide comment on report
Before a report of an investigation is finalised, the CEO may seek comments from interested parties about the report. The
draft report may be required to be kept confidential.
Clause 57 Report of investigation
In providing a report of an investigation to the Board, the CEO is to make a recommendation as to further action. Further
action may include referring the complaint to an Integrity Tribunal for an inquiry or recommendation to the Premier that a
Commission of Inquiry be established.
Clause 58 Determination of Board
8
The Board must make a decision on the report made by the CEO about an investigation and decide on further action.
Clause 59 Persons to whom notice of determination to be given
Once the Board has made a decision about what action is to be taken in respect of a complaint it must notify the relevant
public authority and may notify others.
PART 7 INQUIRY BY INTEGRITY TRIBUNAL
Division 1 Integrity Tribunal
Clause 60 Power of Board to convene Integrity Tribunal
If the Board wants to make further inquiries in relation to a complaint the Chief Commissioner is to set up an Integrity
Tribunal.
Clause 61 Function of Integrity Tribunal
This clause sets out how an Integrity Tribunal will do its work.
Clause 62 Constitution of Integrity Tribunal
An Integrity Tribunal may be made up of the Chief Commissioner sitting alone or with others including lay members of the
Board. The clause also provides an alternative where the Chief Commissioner has a conflict of interest.
Clause 63 Persons appointed to assist Integrity Tribunal
An Integrity Tribunal may have counsel assisting or other expert assistance.
Division 2 Conduct on inquiry
Clause 64 Powers of Integrity Tribunal on inquiry
The clause provides an Integrity Tribunal with the necessary powers to obtain information and evidence. An Integrity
Tribunal may direct a person to answer a question or produce documents. A hearing may be conducted.
Clause 65 Notice of complaint
Before the commencement of an inquiry the Integrity Tribunal must notify the person who is the subject of the complaint.
9
Clause 66 Right of representation
The Integrity Tribunal has to give permission for a person who has been required to attend before it to be represented during
any of the Tribunal's proceedings.
Clause 67 Right of appearance
The Integrity Tribunal may allow another person (or their legal representative) to appear before it if they have a sufficient
interest in the matter. This allows an Integrity Tribunal to control who appears before it.
Clause 68 Directions conference
An Integrity Tribunal may commence with a directions conference to sort out procedural issues with the parties before
starting an inquiry into a matter. The purpose of a directions conference is to make the inquiry more efficient.
Clause 69 Procedure of inquiry
An Integrity Tribunal has the freedom to decide how to inquire into a matter provided that procedural fairness is observed.
Clause 70 Response to notice of complaint
This clause sets out the options for how a public officer who is the subject of the complaint may respond.
Clause 71 Conduct of inquiry
An Integrity Tribunal has a number of options about how to gather evidence. It may require a person attend an inquiry;
provide information, answers to question and material. The provision allows for evidence to be taken by video conference,
telephone or third party. A person does not necessarily attend an inquiry to produce any information or material.
Clause 72 Power to enter premises
An inquiry officer (see definition at clause 3) may enter any public authority's premises at any time, but will require consent
or a warrant to enter other premises.
Clause 73 Search warrants
An inquiry officer, with the approval of the Chief Commissioner, can apply to a Magistrate for a search warrant.
Clause 74 Powers of inquiry officer while on premises
10
This clause outlines the powers an inquiry officer has while on premises. Receipts must be issued for things removed from
the premises.
Clause 75 Application for use of surveillance device
An inquiry officer, with the approval of the Chief Commissioner, can apply to a Magistrate for a warrant for a surveillance
device (e.g. audio, visual or tracking device).
Clause 76 Hearings of Integrity Tribunal
Schedule 6 applies to hearings of an Integrity Tribunal.
Clause 77 Presiding at hearings
The Chief Commissioner, or their substitute in the case of a conflict, presides at hearings of an Integrity Tribunal.
Division 3 Procedure after inquiry
Clause 78 Determination of Integrity Tribunal
At the conclusion of an inquiry the Integrity Tribunal may dismiss a complaint, make a finding that misconduct or serious
misconduct occurred, recommend the establishment of a Commission of Inquiry or any other report. If a finding of
misconduct is made the Integrity Tribunal may report the finding to an appropriate body for action. The exception being a
Parliamentary Integrity entity where the Parliament shall decide what action to take.
The Integrity Tribunal may make recommendations as to sanction.
Clause 79 Review of determination
The Judicial Review Act 2000 applies to integrity Tribunal determinations which means that the decision may be reviewed by
the Supreme Court in relation to process and points of law.
Division 4 Offences
Clause 80 Offences relating to Integrity Tribunal
It is an offence to prevent a person from appearing before an Integrity Tribunal. It is an offence to retaliate against a person
who has give evidence to an Integrity Tribunal. It is also an offence to obstruct an investigator. There are several contempt
11
type provisions included in this clause.
It is an offence not to comply with the direction of an Integrity Tribunal, unless the person has a reasonable excuse. There is
provision for a person to claim privilege (refer clause 92).
Clause 81 Offences against inquiry officers
It is offence for a person, without reasonable excuse, to comply with a direction of an inquiry officer. A person cannot
retaliate against a witness or intimidate or interfere with an inquiry officer.
.
Division 5 Costs and expenses
Clause 82 Interpretation
This defines witness of Integrity Tribunals.
Clause 83 Legal costs of witnesses
A witness can apply for their legal cost. The CEO must approve these claims.
Clause 84 Allowances to witnesses
Witnesses may also claim the out of pocket costs incurred in attending an Integrity Commission. The CEO may approve the
payment of these claims.
Clause 85 Compensation to witnesses for loss of income
Witnesses may also be compensated for income lost as a result of appearing before an Integrity Tribunal.
Clause 86 Costs and expenses of inquiry, &c.
The costs associated with inquiries are reserved by law.
PART 8 MISCONDUCT BY CERTAIN PUBLIC OFFICERS
Division 1 Misconduct by designated public officers
Clause 87 Investigation or dealing with misconduct by designated public officers
The Integrity Commission is required to deal itself with complaints in relation to designated public officers (see clause 6),
12
commissioned police officer (i.e. police officers of the rank of inspector and above) and members of the senior executive
service.
Division 2 Police misconduct
Clause 88 Integrity Commission's role in relation to police misconduct
This clause describes the Integrity Commission's role with the handling of complaints of police misconduct generally.
Clause 89 Own motion investigations
The Integrity Commission can investigate a matter relating to police misconduct without having received a formal complaint.
Clause 90 Consultation with Commissioner of Police
Before making a potentially adverse report, the Integrity Commission may seek comments from the Commissioner of Police.
Clause 91 Commissioner of Police to respond to Integrity Commission
The Commissioner of Police must advise the Integrity Commission of any action taken in relation to the investigation of a
complaint.
PART 9 MISCELLANEOUS
Clause 92 Claims of privilege
This clause sets out a process for dealing with claims of privilege which may provide a reasonable for non compliance with a
direction or requirement of the Integrity Commission (see clause 7(2)).
Applications may be made to the Supreme Court to determine a dispute in relation to a claim of privilege.
Clause 93 Information confidential
Strict confidentiality applies to the Integrity Commission, Board, the CEO and its staff and appointees in relation to
information received in the course of their duties.
Clause 94 Protection from personal liability
This clause provides a protection from legal liability for acts done in good faith by the Integrity Commission, Board, the CEO
13
and its staff and appointees. Witnesses and their legal representatives are also protected from suit.
Clause 95 False or misleading statements
It is an offence to make a false complaint or give misleading information to the Integrity Commission.
Clause 96 Destruction or alteration of records or things
This provides that is an offence to destroy anything for the purpose of misleading an investigation or inquiry.
Clause 97 Certain notices to be confidential documents
Under the Act certain documents may be required to be kept confidential. It is an offence to disclose the existence of these
documents with a few exceptions, such as seeking legal advice.
Clause 98 Injunctions
The Integrity Commission may apply to the Supreme Court for an injunction to prevent conduct likely to prejudice an
investigation or inquiry.
Clause 99 Right to Information Act does not apply
Information held by the Integrity Commission cannot be required to be released under the Right to Information Act 2009.
Clause 100 Personal information may be disclosed to Integrity Commission
Personal Information custodians do not infringe the Personal Information Protection Act 2004 by providing information to the
Integrity Commission.
Clause 101 Non-application of Act to certain allegations, &c.
This is a transitional provision to prevent duplication in relation to existing code of conduct allegations and investigations.
Clause 102 Amendment of Schedule 1
This allows amendments to be made to the list of public authorities when their name changes.
Clause 103 Regulations
This is the regulation making power for this Act.
14
Clause 104 Administration of Act
The Minister for Justice will administer this Act through the Department of Justice.
PART 10 ACTS INTERPRETATION ACT 1931 AMENDED
Clause 105 Principal Act
Clause 106 Section 46 amended (Definitions of certain phrases)
The Acts Interpretation Act will include a definition of the Integrity Commission.
PART 11 AUDIT ACT 2008 AMENDED
Clause 107 Principal Act
Clause 108 Section 4 amended (Interpretation)
The Audit Act is amended to take account of the establishment of the Integrity Commission.
Clause 109 Section 23 substituted
23. Examinations and investigations
The Audit Act is amended to take account of the establishment of the Integrity Commission.
Clause 110 Section 30 amended (Report on examination or investigation)
The Audit Act is amended to take account of the establishment of the Integrity Commission.
PART 12 COMMISSIONS OF INQUIRY ACT 1995 AMENDED
Clause 111 Principal Act
15
Clause 112 Section 22 amended (Notice to witnesses)
This clause updates the terminology of the Commissions of Inquiry Act to take account of the establishment of forensic
mental health facilities.
Clause 113 Section 24A inserted
24A. Application for use of surveillance device
This clause gives Commissions of Inquiry the power to apply to a magistrate for a surveillance warrant (e.g. audio, visual or
tracking device). This implements and goes further than a recommendation by the Law Reform Institute and the Joint Select
Committee on Ethical Conduct which related to listening devices only.
PART 13 JUDICIAL REVIEW ACT 2000 AMENDED
Clause 114 Principal Act
Clause 115 Schedule 1 amended (Decision to which Act does not apply)
This exempts a limited number of decisions from judicial review.
PART 14 OMBUDSMAN ACT 1978 AMENDED
Clause 116 Principal Act
Clause 117 Section 12 amended (Matters subject to investigation)
The Ombudsman Act is amended to take account of the establishment of the Integrity Commission.
Clause 118 Section 16A inserted
16A. Investigation on reference by Integrity Commission
The Ombudsman Act is amended to take account of the establishment of the Integrity Commission.
16
PART 15 PERSONAL INFORMATION PROTECTION ACT 2004 AMENDED
Clause 119 Principal Act
Clause 120 Section 7 amended (Courts and tribunals)
The Integrity Commission is exempted from the Personal Information Protection Act.
PART 16 STATE SERVICE ACT 2000 AMENDED
Clause 121 Principal Act
Clause 122 Section 18 amended (Functions of Commissioner)
The handling of alleged breaches of the State Service Code of Conduct is to be dealt with by the Integrity Commission instead
of the State Service Commissioner.
Clause 123 Section 24 amended (Relationship with Ombudsman and other persons)
The State Service Commissioner is preventing from dealing with a matter which the Integrity Commission is handling.
Clause 124 Schedule 1 amended (Agencies)
The Integrity Commission is to be a separate State Service agency.
Schedule 1 PRINCIPAL OFFICERS
The drafting of the Integrity Commission Act uses a concept of `principal officer'. This schedule sets out which officer is the
principal officer for each public authority.
Schedule 2 MEMBERSHIP OF BOARD OF INTEGRITY COMMISSION
This schedule sets out provisions relating to terms of office of the Chief Commissioner and lay members of the Board.
Schedule 3 MEETINGS OF BOARD OF INTEGRITY COMMISSION
This schedule details the procedures in relation to meetings of the Board. The Chief Commissioner may convene a meeting
as necessary to conduct the Board's functions. The clauses in the schedule provide generally for the conduct of meetings,
17
including decision making by Board members.
Schedule 4 MEMBERSHIP OF JOINT STANDING COMMITTEE ON INTEGRITY
This schedule specifies that where a vacancy occurs in the office of a member of the Joint Standing Committee it is to be
filled by the practice regulating the appointment of Members of Parliament to service on select committees of the House of
the Member who has vacated the office. The schedule also provides for a chair person, vice chair and secretary of the Joint
Standing Committee and specifies that membership of the Joint Standing Committee is not an office of profit.
Schedule 5 MEETINGS OF JOINT STANDING COMMITTEE ON INTEGRITY
This schedule sets out procedures and voting processes at meetings of the Joint Standing Committee. It also provides the
Committee with power to summons witnesses and take evidence. Witness expenses may be paid in accordance with the scale
prescribed under the Public Works Committee Act 1914.
Schedule 6 PROVISIONS IN RESPECT OF HEARINGS OF INTEGRITY TRIBUNAL
This Schedule provides that, as a general principle, hearings of an Integrity Tribunal are to be open to the public. An Integrity
Tribunal has power to control its own proceedings and can request Tasmanian Police to maintain order. Specifically an
Integrity Tribunal has power to close hearings, exclude people from a hearing or prohibit reporting if there are reasonable
grounds to do this, for e.g. it may be considered necessary in the public interest or to protect the identity or privacy of a
witness, or protect the reputation of a person or there may be a risk of prejudice to another investigation or court matter if the
hearing is open.
The Integrity Tribunal must serve notice of the date of a hearing to any person who is the subject of the complaint and the
principal officer of the person who is subject to the complaint. There is power to for the Integrity Tribunal to apply to a
Magistrate for a warrant to arrest a person who fails to appear at a hearing is they have served with a notice to attend and fail
to attend.
The Integrity
18