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1
Public Sector Ethics Amendment
PUBLIC SECTOR ETHICS AMENDMENT
BILL 1999
EXPLANATORY NOTES
GENERAL OUTLINE
The Bill provides for the establishment of a Queensland Integrity
Commissioner.
The proposed office was first canvassed in the `Good Government'
policy by the Government prior to the 1998 State election. Established
under the Public Sector Ethics Act 1994, the Integrity Commissioner will
form part of the statutory public ethics framework in Queensland.
The purpose of the measure is to provide for a source of confidential
advice on conflict of interests and related ethics and integrity matters, on
request, to Ministers, Parliamentary Secretaries, Chief Executives, and a
small range of other "designated persons", in the interests of avoiding
personal conflicts of interests.
Policy Objectives of the Bill
The major policy objective of the Bill is to assist senior elected
Government officials and senior appointed public officials (defined in the
Bill as "designated persons") to avoid conflicts of interest, and thereby to
improve the standards of integrity and probity in Government and public
administration. In consequence, the measure is seen as making a positive
contribution raising community confidence in public institutions.
The Integrity Commissioner is not to be regulatory body, and will
provide advice only in relation to conflict of interest issues, and only by way
of a response to a specific request by a designated person.
In recognition of the determinative character of the Commissioner's
considered advice in relation to a conflict of interests matter, an official who
substantially complies with the Commissioner's advice is to be accorded
conditional protection against liability in a civil action or administrative
process. In relation to the giving of that advice, the Integrity Commissioner
is to receive comparable protection against liability.
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Public Sector Ethics Amendment
Reasons for Policy Objectives
The measure proposed will complement the purposes of the Public
Sector Ethics Act 1994 and the Criminal Justice Act 1989 in various ways,
by providing a confidential source of consistent and expert advice on
conflict of interest issues, and encouraging senior public officials to seek
advice from the Commissioner proactively.
In providing advice, the Integrity Commissioner will be required to have
regard to established ethical standards, including any standards expressed in
legislation or a formal Code of Conduct enacted by the Premier or the
Parliament, as relevant to the case. If warranted in the circumstances of a
particular case, the Integrity Commissioner will be enabled to take account
of other relevant standards of ethical conduct which have broad
endorsement in the community at large.
The Commissioner will also have a role in contributing to public
understanding of public ethics policy and practice, by contributing to public
discussion of such matters. The Commissioner will not be empowered to
comment publicly on particular cases, or to conduct any form of
investigation into an official's interests or an allegation about a conflict of
interests.
The Bill reflects a growing practice in overseas jurisdictions towards the
independent provision of proactive advice in relation to a conflict of interest
issue to senior officials in Government and the Public Service, as a means
of preventing conflicts from arising.
The functions of the proposed Integrity Commissioner are generally
comparable with similar institutions in the United Kingdom, Ireland,
Canada, and the United States. In particular, the proposed office is similar
to the well-regarded "Ethics Counsellor" model in the federal sphere in
Canada
Ways in which Policy Objectives will be Achieved by the Bill
The policy objectives of the proposed framework for the provision of
advice through an Integrity Commissioner will be achieved by:
� providing conditional protections (for example, protections of
confidentiality and procedural fairness) for those officials who in
good faith seek the advice of the Commissioner about a conflict
of interest issue; and
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Public Sector Ethics Amendment
� providing conditional protection from liability to those officials
who substantially comply with the advice of the Commissioner in
resolving a conflict of interest.
Providing senior elected Government officials and senior appointed
public officials with indemnified and confidential advice on whether a
particular personal interest (not limited to a pecuniary interest) gives rise to a
conflict of interest, and what action should be taken to resolve the conflict,
lies at the core of the Integrity Commissioner's role. The Commissioner's
advice is to be based on matters covered in the relevant Parliamentary
standard or other Code of Conduct.
The Premier, Minister, Parliamentary Secretary or Chief Executive may,
to the extent that the provisions will allow, request the Integrity
Commissioner provide advice in relation a personal conflict of interest
matter in relation to another designated person: in such a case the advice
would be provided to the designated person concerned, and, as appropriate,
to the Premier, the Minister, the Parliamentary Secretary or the Chief
Executive. The advice will remain confidential and may be published only
by the designated person concerned (for example, to settle a dispute about
whether the Integrity Commissioner's advice had been followed in a
particular case).
To enable the Integrity Commissioner's advice to be regarded as
determinative, the Commissioner's advice will be conditionally indemnified
such that a designated person following the advice will be immune from
further action. To be indemnified, the designated person will be required to
provide information to the Commissioner which is truthful, comprehensive
and not misleading, and substantially comply with the advice of the Integrity
Commissioner. To ensure that the Integrity Commissioner is able to fulfil
his or her functions, the office is to be appropriately protected from liability
in a civil or administrative action.
The Government's policy objectives will also be promoted by a
requirement that to be qualified for appointment as Integrity Commissioner,
a person must have relevant knowledge, experience, personal qualities and
standing in the community relevant to the office.
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Public Sector Ethics Amendment
Reasonable Alternative Ways of Achieving the Policy Objectives
The fundamental basis of the proposal is that in order to encourage
officials to approach the Integrity Commissioner for advice in relation to
their personal interests, such approaches, and required actions taken in
response to the advice of the Integrity Commissioner in order to resolve an
unacceptable conflict of interests, must be effectively protected.
The minimum protection envisaged involves workable confidentiality
and secrecy provisions, and limited conditional immunity from
consequential civil and administrative action. Such protections can only be
provided if enshrined in legislation.
Therefore, no reasonable alternative ways of introducing an effective
Integrity Commissioner function are considered to exist.
Administrative Costs to Government of Implementing the Bill
The administrative costs of implementing the function will be minimal.
The Integrity Commissioner is to be a part-time appointee, with a small
administrative support staff (of 1.5 full-time equivalent) which is to be
provided from within the resources of the Office of the Public Service
Commissioner.
Consistency with Fundamental Legislative Principles
Proposed sections 35 and 36 of the Bill provide that no action may be
brought against the Integrity Commissioner for advice given in good faith in
relation to a conflict of interest issue or against a designated person who
discloses all relevant information about a conflict of interest issue and acts in
accordance with the Commissioner's advice.
The Bill makes it clear that no protection is offered to a designated person
for acts or omissions done before seeking the Commissioner's advice.
It may be argued that a designated person who follows the
Commissioner's advice is in a more favourable position than someone else
(say a company director) faced with a conflict of interest issue who seeks
similar advice from a professional and acts in accordance with that advice.
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Public Sector Ethics Amendment
However, there is a significant public interest in designated persons
avoiding conflict of interest issues, and, given the conditions that must be
complied with before the immunity operates, it is considered that there is
adequate justification for the immunity provided.
Consultation
The proposal to establish an office of Integrity Commissioner has been
developed in the Office of the Public Service Commissioner, with
consultation with all Ministers. Comments have either been resolved or
incorporated into the Bill. An advance of the Bill has been provided to
officers of the Department of the Premier and Cabinet.
The Bill has been drafted by the Office of the Parliamentary Counsel.
At the time of the Bill's approval by the Executive Government, there
were no material objections to the Bill.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 provides the short title of the Bill.
PART 2--AMENDEMENT OF PUBLIC SECTOR
ETHICS ACT 1994
Clause 2 provides that Part 2 amends the Public Sector Ethics Act 1994.
Clause 3 amends the title to provide for an Integrity Commissioner.
Clause 4 amends section 2 by providing for and defining the dictionary
and relocating the existing definitions of particular words used in the Act
within the dictionary.
Clause 5 renumbers the heading of Part 7 of the Act (Miscellaneous) as
Part 8.
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Public Sector Ethics Amendment
Clause 6 renumbers section 25 of the Act (Regulation-making power) as
section 44.
Clause 7 inserts a new Part 7 (Integrity Commissioner), as follows:
PART 7--INTEGRITY COMMISSIONER
Division 1 - Purpose of part
Proposed section 25 declares that the purpose of the legislative
amendment is to provide assistance to Ministers, and to other specified
elected and appointed public officials, to assist them to avoid conflicts of
interests and in so doing to encourage public confidence in public
institutions such as the Parliament and the Public Service. In summary, the
assistance to be provided by the Integrity Commissioner is limited to
confidential advice, provided on request, which is intended to be
preventative. The protections attaching to the advice are not retroactive. The
Commissioner is to have no power of independent inquiry.
Division 2--Integrity commissioner
Proposed section 26 creates the office of Queensland Integrity
Commissioner.
Division 3--Designated persons
Proposed section 27(1) establishes the classes of persons who may seek
advice from the Commissioner under this Act. Broadly stated, `designated
persons' are the most senior elected officials (for example, Ministers and
Parliamentary Secretaries) and appointed public officials (for example,
Chief Executives of departments and public service offices and statutory
office holders) who exercise significant powers or management
responsibilities on behalf of the Government. Following nomination by the
relevant Minister, Chief Executives of government entities also become
designated persons. The advisers to Ministers and Parliamentary
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Public Sector Ethics Amendment
Secretaries are included among the classes of persons who may obtain
advice from the Commissioner. Other staff in the offices of Ministers and
Parliamentary Secretaries may be nominated as designated persons at the
discretion of the Minister or Parliamentary Secretary. Senior executive
officers and senior officers in the Public Service and their equivalents in
government entities, subject to them being nominated as such by the
relevant Minister, are defined as designated persons who may seek the
advice of the Integrity Commissioner (provided that each such request is
authorised in writing by the relevant Chief Executive).
Proposed section 27(2) requires that where a Minister or Parliamentary
Secretary nominates a person or class of person to be a designated person,
that nomination must be given in writing to the Integrity Commissioner.
Division 4--Functions of integrity commissioner
Proposed section 28 provides that the functions of the Integrity
Commissioner are to provide advice, on request and subject to
confidentiality provisions--
� to all designated persons in relation to specific conflicts of interest
matters;
� to the Premier on ethics and integrity matters generally; and
� to contribute to public understanding of ethics and integrity issues
by contributing to discussion of public discussion of relevant
policy and practice.
Division 5--Advice
Proposed section 29(1) establishes to conditions under which a
designated person may request advice from the Integrity Commissioner.
Proposed sub-section 29(1)(a) provides that only a designated person
may request and receive advice.
Proposed sub-section 29(1)(b) provides that a request for advice must be
in writing, and that if the advice is sought by a senior officer, the request
must be authorised in writing by the officer's Chief Executive.
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Public Sector Ethics Amendment
Proposed section 29(2) defines senior officer for the purposes of the
section.
Proposed section 30(1) provides that a designated person may seek
advice about a matter relating to their own personal interests.
Proposed section 30(2) provides that the Premier can seek advice about a
conflict of interest issue arising in the case of any designated person.
Proposed section 30(3) provides that a Minister can seek advice about a
conflict of interest issue arising in the case of a statutory office holder whose
office is established under an Act administered by the Minister, the Chief
Executive of a department or public service office administered by the
Minister, the Chief Executive of a government entity for which the Minister
has responsibility, a person employed in the office of a Minister or engaged
to give advice to a Minister and any other person, not otherwise provided
for, who is nominated by a Minister.
Proposed section 30(4) provides that a Parliamentary Secretary can seek
advice about a conflict of interest issue arising in the case of a member of
staff in their office, or a person nominated by the Parliamentary Secretary.
Proposed section 30(5) provides that a Chief Executive of a department
or public service office can seek advice about a conflict of interest issue
arising in the case of a designated person employed in the department or
public service office.
Proposed section 30(6) provides that the Chief Executive of a
government entity can seek advice about a conflict of interest issue arising in
the case of an officer of the entity who has remuneration equivalent to or
greater than a senior officer of a department or public service office (a senior
executive equivalent).
Proposed section 30(7) provides that advice may not be sought by or
about a conflict of interest issue arising in the case of a person who was but
is not presently a designated person.
Proposed section 31(1) requires a designated person seeking advice to
provide all necessary information to the Integrity Commissioner.
Proposed section 31(2) enables the Integrity Commissioner to seek
additional information from a designated person in relation to their request.
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Public Sector Ethics Amendment
Proposed section 31(3) allows the Integrity Commissioner to refuse to
give advice in relation to a conflict of interest issue, where, for example, the
Commissioner is not satisfied that he or she has sufficient information, or
that the request is made in good faith.
Proposed section 31(4) provides that the Integrity Commissioner's
advice must be provided in writing.
Proposed section 32 provides that the Integrity Commissioner in giving
advice must have regard to relevant established codes of conduct, ethical
standards or codes of conduct adopted by the Legislative Assembly and to
other ethical standards the Commissioner considers appropriate.
Division 6--Confidentiality and protection
Proposed section 33(1) provides generally that the information provided
to the Commissioner under this Act may not be recorded, used or disclosed.
Proposed section 33(2) exempts from proposed section 33(1) persons
using the information provided to the Commissioner for the administration
of the Act.
Proposed section 33(3) provides that persons involved in the
administration of the Act are not compellable in any proceeding to disclose
information provided to the Commissioner under the Act. This provision
does not affect the right of a person receiving advice from the
Commissioner about a personal conflict of interest matter in relation to their
personal interests to publish that advice to the world at large, if they so
choose.
Proposed section 34(1) provides generally that the Integrity
Commissioner may make particular disclosures of information related to
his or her advice to a designated person.
Proposed section 34(2) provides, in effect, that only a person, who is or
who was a designated person and who has requested and received advice
from the Commissioner about a personal conflict of interest matter in
relation to their personal interests, may publish that advice to the world at
large.
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Public Sector Ethics Amendment
Proposed section 34(3) provides that the Integrity Commissioner may
disclose relevant documents and information to a person who is or who was
a designated person about a personal conflict of interest matter relating to
their personal interests. ("Relevant documents" are defined in proposed
section 34(9), and include the request for advice, information provided to
the Commissioner, and any advice provided by the Commissioner.)
Proposed section 34(4), sub-sections (a) to (c) provide respectively for
the Integrity Commissioner to disclose documents and information to the
Premier, a Minister or Parliamentary Secretary about a conflict of interest
matter relating to another designated person. For example, the Premier may
request and be provided by the Commissioner with a copy of the
documents containing a request for advice and the advice provided by the
Commissioner in relation to any designated person (other than a senior
executive officer or senior officer in a department or public service office or
the nominated senior executive equivalent in a government entity).
Likewise, a Minister or Parliamentary Secretary may request and be
provided by the Commissioner with a copy of a request for advice and the
advice provided in relation to a limited range of designated persons for
whom the Minister or Parliamentary Secretary, as the case may be, has a
responsibility. In each case, the Premier, Minister and Parliamentary
Secretary are not empowered to further disclose the documents and
information involved to any person other than the designated person who is
the subject of the advice.
Proposed section 34(5) specifies the conditions which must be satisfied
before the Commissioner, of his or her own motion, may provide the
Premier with a copy of relevant documentation in relation to a designated
person (other than a senior executive officer or senior officer in a
department or public service office or the nominated senior executive
equivalent in a government entity). The proposed section provides that,
where the Commissioner has formed the view that an actual and significant
conflict of interests exists in relation to any such designated person who has
sought the Commissioner's advice, and the designated person has been
advised of the Commissioner's view and, having been given 7 days to
resolve the conflict to the Commissioner's satisfaction, has failed to do so,
the Integrity Commissioner must advise the Premier of the matter. This
situation is unlikely to arise frequently in practice, as actual and significant
conflicts of interests would normally come to attention when a Minister or
Chief Executive registers or declares their relevant pecuniary and other
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Public Sector Ethics Amendment
interests in accordance with procedures laid down by the Parliament and the
Public Service Act 1996, respectively.
Proposed section 34(6) provides that a Chief Executive of a department
or public service office may request and obtain a copy of relevant
documents in relation to advice provided by the Commissioner in relation to
a senior executive officer or a senior officer in the department or office for
which the Chief Executive is responsible.
Proposed section 34(7) provides that a Chief Executive of a government
entity may request and obtain a copy of relevant documents in relation to
advice provided by the Commissioner in relation to a nominated senior
executive equivalent in the government entity for which the Chief Executive
is responsible.
Proposed section 34(8) provides that the Commissioner's advice to a
former designated person is not to be made available once the person is no
longer a designated person under the Act.
Proposed section 34(9) defines `designated person to whom the relevant
documents relate' as meaning the designated person `...involved in a
conflict of interest issue and to whom the relevant documents relate'. This
section also defines `relevant document' in relation to a request for advice
by a designated person as including the request for advice and the advice
itself, together with any additional information provided by the person
making the request.
Proposed section 35(1) provides generally the conditions which must be
met to attract protection from liability in a civil proceeding or under an
administrative process from actions pursuant to the Commissioner's advice.
Proposed section 35(2) specifies that a designated person who complies
with the conditions set out in this proposed section 35(1) is not liable in a
civil action or an administrative process for an act to resolve a conflict.
Proposed section 35(3) specifies that the protection provided by
complying with the Commissioner's advice does not extend to acts or
omissions of a designated person occurring before the person received that
advice. This provision is intended to ensure that the Commissioner's advice
on a matter is determinative. It is intended that false or groundless
allegations of a conflict of interests will be discouraged by this approach,
which will thus encourage recourse to the Commissioner for advice. The
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Public Sector Ethics Amendment
provision is cast in such a way as to encourage those who may be uncertain
as to whether a particular relationship or interest constitutes a conflict of
interests or not, to seek the Commissioner's advice on the matter.
Proposed section 36 provides that the Integrity Commissioner is not
liable in a civil proceeding or under an administrative process for acts or
omissions done or made in the performance of the Commissioner's
functions, provided such are done or made in good faith.
Division 7--General
Proposed section 37(1) provides for the Integrity Commissioner to be
appointed by the Governor in Council.
Proposed section 37(2) specifies that, to be qualified for appointment, the
Integrity Commissioner is to have knowledge, experience, personal qualities
and standing within the community suitable to the office.
Proposed section 37(3) provides for the Integrity Commissioner to hold
office for a term not longer than 5 years.
Proposed section 37(4) provides that the Integrity Commissioner is to be
appointed under the Public Sector Ethics Act 1994 and not the Public
Service Act 1996.
Proposed section 38(1) provides that the Integrity Commissioner is to be
paid the remuneration and allowances decided by the Governor in Council.
Proposed section 38(2) provides that the Integrity Commissioner is to be
appointed on terms decided by the Governor in Council where not
otherwise provided by the Act.
Proposed section 39 allows the Minister to grant the Integrity
Commissioner leave of absence.
Proposed section 40 provides for the Integrity Commissioner to resign
by notice in writing to the Minister.
Proposed section 41 provides for the appointment of an Integrity
Commissioner to be terminated for cause by the Governor in Council.
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Public Sector Ethics Amendment
Proposed section 42 provides for the Governor in Council to appoint a
person to act as the Integrity Commissioner when the position is vacant or
the Commissioner is absent or otherwise unable to perform the duties of the
office.
Proposed section 43(1) provides that the Commissioner must report
annually to the Premier on the activities of the office.
Proposed section 43(2) provides that the report prepared by the Integrity
Commissioner is to be in general terms which do not identify particular
cases or advice.
Clause 8 inserts, after renumbered section 44, a schedule containing the
dictionary to be used for the purposes of the Act.
PART 3--AMENDMENT OF THE FREEDOM OF
INFORMATION ACT 1992
Clauses 9 and 10 amend the Freedom of Information Act 1992 by
making advice provided by the Integrity Commissioner under the proposed
Division 5 of the Public Sector Ethics Act 1994, and related documents and
information, subject to the secrecy provisions giving exemption from access
under the Freedom of Information Act 1992.
� The State of Queensland 1999