Integrity Commission Act 2009

The Act works through several interconnected concepts. “Public authority” is defined broadly in s 5(1) and includes the Parliament of Tasmania, Ministerial and MP offices, the State Service, the Police Service, Government Business Enterprises, State-owned companies, the University of Tasmania, statutory authorities, local authorities, council-owned companies, and other prescribed bodies receiving public money or controlled by government. Entities specifically excluded from being public authorities are the Governor, judges, magistrates, courts, tribunal members, Industrial Commission members, the Integrity Commission itself, and prescribed persons (s 5(2)). “Public officer” means a person who is a public authority or who holds any office, employment, or position in a public authority, but does not include the excluded persons (s 4(1), definition of “public officer”, read with s 5(2)). “Designated public officer” is a subset of public officers attracting special attention: Members of Parliament, council members, principal officers, statutory office holders (except the Chief Commissioner and CEO), commissioned police officers, holders of senior executive offices, and prescribed persons (s 6(1)). The Commission’s operations are guided by principles under s 9: raising standards, working cooperatively, improving public authorities’ capacity, ensuring action is taken when in the public interest, dealing with designated public officer misconduct, expediting matters, and not duplicating appropriate work already undertaken. The Commission is not bound by the rules of evidence and must act with as little formality and technicality as possible (s 9(2)-(3)). “Complaint” under s 4(1) means a complaint made under s 33, including associated matters. Complaints may be made anonymously (s 33(1A)) and may relate to a person who was a public officer at the time of the alleged misconduct even if no longer a public officer (s 33(2)). The Act distinguishes between “misconduct” (any conduct falling under the definition) and “serious misconduct” (a subset). “Police misconduct” is misconduct by a police officer (s 4(1), definition of “police misconduct”). “Integrity entity” includes the Integrity Commission, the Ombudsman, the Auditor-General, and the Custodial Inspector (s 4(1), definition of “integrity entity”, but note that for Part 3 the Auditor-General is excluded - s 22). “Parliamentary integrity entity” means the President of the Legislative Council and the Speaker of the House of Assembly (s 4(1), definition of “Parliamentary integrity entity”). “Proceedings in Parliament” are broadly defined and exclude misconduct in that context from investigation (s 4(1), definition of “proceeding in Parliament” and exclusion from “misconduct”). The Act also creates a privilege regime (s 92) that allows persons to claim privilege against requirements to give evidence or produce documents, but with a mandatory compliance mechanism if the requirement is not withdrawn and a subsequent application to the Supreme Court. The Integrity Tribunal, when convened (s 60), conducts formal inquiries into matters referred by the Board after investigation, and may make findings of misconduct or serious misconduct, dismiss complaints, or recommend Commissions of Inquiry (s 78). The Tribunal’s determinations are reviewable under the Judicial Review Act 2000 (s 79).

The Act directly affects every “public officer” in Tasmania, a term that covers persons in state and local government, statutory authorities, Government Business Enterprises, State-owned companies, council-owned companies, the University of Tasmania, and many other bodies. This includes all State Service officers and employees, police officers (both commissioned and non-commissioned, though commissioned officers are designated), local government councillors and staff, members of Parliament, ministerial staff, and office holders in statutory corporations. The Act also affects “designated public officers” (s 6) who are subject to the Commission’s direct investigatory and inquiry powers under Part 8 (ss 87-91). They include MPs, council members, principal officers, statutory office holders, senior executives, and commissioned police. The Commission can investigate misconduct by any public officer but has mandatory jurisdiction over designated public officers (s 87). For police misconduct, the Commission may assess, investigate, or audit only serious misconduct, but can also provide advice and assume responsibility for investigations (s 88). The Act affects complainants - any person can make a complaint anonymously (s 33(1A)). It affects witnesses who may be compelled to give evidence or produce documents under investigation (s 47) or during an inquiry (s 71). It affects the principal officers of public authorities, who have duties to ensure education and training on ethical conduct (s 32), to receive referrals, and to report outcomes (e.g. s 39). It affects the Commissioner of Police, who must make police officers available for investigations (s 21(4)), who may be directed to stop investigations when the Commission assumes responsibility (s 88(3)), and who must respond to Commission requests (s 91). It affects integrity entities (Ombudsman, Auditor-General, Custodial Inspector) because complaints may be referred to them and they must cooperate. It affects the Minister, who cannot direct the Commission (s 10) but receives annual reports and may recommend appointments. It affects the Premier, who appoints the CEO on recommendation (s 17) and may receive recommendations for Commissions of Inquiry (s 58(2)(c)). It affects the Governor, who appoints Board members and the Chief Commissioner (ss 14, 15). It affects the Joint Committee, which monitors the Commission and comments on appointments. It affects judges, magistrates, and court members who are expressly excluded from the definition of public authority (s 5(2)), meaning they are not subject to the Act’s misconduct regime. It also affects legal practitioners representing persons in investigations or inquiries (s 49, s 66). Ultimately, anyone who interacts with a public authority or who reports suspected misconduct is affected by the complaint-handling and protective provisions.

The Act imposes a range of duties on public officers and confers rights on persons subject to investigation or inquiry. The principal officer of every public authority must ensure public officers receive appropriate education and training relating to ethical conduct, including the operation of the Act, ethical principles, codes of conduct, and rights and obligations concerning contraventions (s 32). Public officers must comply with requirements or directions from investigators under s 47 (to provide information, attend, produce documents) within 14 days, failing which they commit an offence (s 54(1)). Similarly, persons must comply with direction from the Integrity Tribunal under s 71 or s 74, with penalties for non-compliance (ss 80, 81). A person must not obstruct or hinder an investigator (s 54(3)) or an inquiry officer (s 81(3)). There is a duty of confidentiality on Board members, staff, assessors, investigators, Tribunal members, and Joint Committee members not to disclose information obtained in the course of their duties without authorisation (s 94). Breach is an offence with a penalty of 5000 penalty units or up to two years imprisonment. Persons on whom a confidential notice is served must not disclose its existence or contents (s 98) subject to reasonable excuse (e.g. seeking legal advice). Complainants and officers must not make false or misleading statements (s 96). They must not destroy or alter records required to be produced (s 97). Persons have a right to claim privilege under s 92 in respect of information, documents, or things, but if the requirement is not withdrawn they must either comply within 14 days or apply to the Supreme Court to determine the claim. Failure to apply means the person cannot later claim privilege as a reasonable excuse. A person subject to an investigation has the right to be given written notice of the appointment of an investigator (s 44(2)), and to receive a draft report and provide submissions before the report is finalised (s 56). A public officer who is the subject of an inquiry is entitled to written notice of the inquiry, the allegation, and the substance of the supporting evidence (s 65). That officer has the right to be represented by a legal practitioner or agent when appearing before the Integrity Tribunal (s 66). The officer may respond by making oral or written submissions, giving evidence, cross-examining, calling witnesses, and producing documents (s 70). Witnesses before the Tribunal may also be represented with the Tribunal’s approval (s 66(2)). The Integrity Tribunal must observe procedural fairness and may give directions to ensure a fair inquiry (s 69). A determination of the Integrity Tribunal is reviewable under the Judicial Review Act 2000 (s 79). Witnesses may apply for financial assistance for legal costs (s 83) and are entitled to allowances and compensation for loss of income (ss 84, 85). Persons who provide information or make statements in good faith to the Commission or its officers are protected from civil proceedings (s 95(2)). The Commission and its officers are protected from civil or criminal liability for actions done in good faith (s 95(1)). The Commission has the right to apply to the Supreme Court for an injunction to restrain conduct that is the subject of an investigation or inquiry (s 99).

The Act creates a range of criminal offences with penalties expressed in penalty units or imprisonment. A penalty unit is defined under the Acts Interpretation Act 1931; the current value is set by regulation. The key penalties are as follows. Failure to comply with a requirement or direction of an investigator under s 47 without reasonable excuse carries a fine of up to 5000 penalty units (s 54(1)). Using violence, punishment, damage, loss, or disadvantage against a person for giving evidence to an investigator carries a fine of up to 5000 penalty units or imprisonment up to one year (s 54(2)). Obstructing or hindering an investigator carries a fine of up to 2000 penalty units (s 54(3)). Under s 52(5), failure to comply with a requirement or direction of an investigator while on premises (e.g. to answer questions) without reasonable excuse carries a fine of up to 2000 penalty units. Similar offences apply in the inquiry context: failing to attend an inquiry, take an oath, produce documents, answer questions, or assist carries a fine of up to 5000 penalty units (s 80(5)). Preventing a witness from attending or producing documents carries up to 5000 penalty units or one year imprisonment (s 80(1)). Using violence or disadvantage against a person for giving evidence carries up to 5000 penalty units or one year imprisonment (s 80(2)). Contempt-like behaviour at a hearing (insulting Tribunal members, interrupting, creating disturbances) carries a fine of up to 2000 penalty units (s 80(3)). Obstructing or improperly influencing an inquiry carries 2000 penalty units (s 80(4)). Offences against inquiry officers under s 81 carry penalties up to 5000 penalty units or imprisonment (s 81(1), (2), (3)). Unauthorised disclosure of confidential information under s 94 carries a fine of up to 5000 penalty units or up to two years imprisonment. Making false or misleading statements (s 96) and destroying or altering records (s 97) each carry fines up to 5000 penalty units or one year imprisonment. Breach of the confidentiality notice regime under s 98 carries a fine of up to 2000 penalty units. The Act does not itself impose disciplinary sanctions on public officers; rather, after investigation or inquiry, the Commission or Tribunal may refer findings and material to the relevant public authority, integrity entity, Police Commissioner, DPP, or Minister for appropriate action (ss 57, 58, 78). The Integrity Tribunal may recommend appropriate sanctions (s 78(4)). The Act provides for enforcement through search warrants (ss 51, 73), warrants to apprehend witnesses for hearings (Schedule 6 clause 2), and injunctions in the Supreme Court (s 99). Legal costs of witnesses and allowances are payable from the Public Account (s 86). Costs and expenses of an inquiry are also a charge on the Public Account (s 86). The Act does not create an offence for a public officer to engage in misconduct per se; misconduct is dealt with through referral to internal disciplinary processes or criminal prosecution by other agencies.

The Act interacts with a broad range of Tasmanian legislation. It expressly incorporates provisions from the Evidence Act 2001 regarding privilege (s 4(1), definition of “privilege” includes Part 10 of Chapter 3 and ss 18-20). It applies the Acts Interpretation Act 1931 to delegations (s 16(3)). It refers to the State Service Act 2000 for the status of the CEO (s 18(3)), for appointment of staff (s 20), for annual reporting (s 11(2)), and for education obligations (s 32). The Police Service Act 2003 is engaged regarding police officers seconded to the Commission (s 21(8)). The Police Powers (Surveillance Devices) Act 2006 is applied, with investigators and inquiry officers being treated as law enforcement officers for the purpose of applying for surveillance device warrants in serious misconduct cases (ss 53, 75). The Search Warrants Act 1997 applies to search warrants under the Act (ss 51(6), 73(6)). The Judicial Review Act 2000 is expressly made applicable to Integrity Tribunal determinations (s 79). The Commissions of Inquiry Act 1995 is referenced as the mechanism for establishing a commission of inquiry on the Commission’s recommendation (ss 8(1)(p), 35(1)(d), 57(2)(c), 58(2)(c), 78(2)(c)). The Act amends the Commissions of Inquiry Act 1995, the Ombudsman Act 1978, the Personal Information Protection Act 2004, the State Service Act 2000, the Judicial Review Act 2000, the Audit Act 2008, and the Financial Management and Audit Act 1990 (Parts 10-17). The Personal Information Protection Act 2004 is specifically overridden: a personal information custodian is authorised to disclose personal information to the Commission for the purposes of the Act (s 102). The Director of Public Prosecutions Act 1973 is referenced (definition of DPP, s 4(1)), and the Commission may refer matters to the DPP (e.g. s 57(2)(b)(iv)). The Corrections Act 1997 and Youth Justice Act 1997 are engaged for compelling evidence from prisoners and detainees (ss 47(4), 71(4)). The Mental Health Act 2013 and Criminal Justice (Mental Impairment) Act 1999 are also referenced. The Act does not affect privileges of Parliament (s 100). It does not apply to code of conduct allegations that were made or investigations commenced before its commencement (s 103). The Joint Committee cannot investigate matters being dealt with by the Commission or review its decisions (s 24(2)). The Act also provides that regulations may be made under s 105, prescribing additional public authorities, principal officers, and other matters. The Schedule 1 lists principal officers for various public authorities, which can be amended by order (s 104). Overall, the Act operates as a standalone integrity framework but relies heavily on other Acts for investigative powers, privilege, and referrals.

The Act has been amended by several subsequent Tasmanian Acts. The text provided includes annotation markers indicating amendments by No. 55 of 2011 (Integrity Commission Amendment Act 2011?), No. 13 of 2012 (likely the University of Tasmania inclusion and other changes), No. 42 of 2012 (relating to Custodial Inspector), No. 13 of 2017 (significant amendments regarding Chief Commissioner and Board membership), No. 30 of 2016 (Custodial Inspector amendment), No. 54 of 2016 (Public Sector Superannuation Reform Act 2016 consequential amendments), No. 38 of 2015 (Police Powers (Surveillance Devices) Act amendments), No. 69 of 2013 (Mental Health Act 2013 consequential), No. 4 of 2017 (Public Account charge amendment). Notable substantive changes include: the addition of anonymous complaints in 2011 (s 33(1A)); the expansion of own-motion investigations in 2011 (s 45); the introduction of the concept of “designated public officer” and related provisions in Part 8 (2011); the replacement of the previous office of Chief Commissioner with a new eligibility requirement of an Australian legal practitioner of at least 7 years standing, along with detailed suspension and removal processes (ss 15A-15K, inserted by No. 13 of 2017); the reduction of the Board to the Chief Commissioner plus appointed members (removing the ex-officio Auditor-General and Ombudsman, and the Chief Executive Officer) (s 14, amended 2017); the addition of the University of Tasmania as a public authority (No. 13 of 2012); the omission of the CEO from Board membership (2017); and numerous schedule amendments. The Act also included Parts 10-17 that amended other Acts (e.g. Acts Interpretation Act 1931, Audit Act 2008, Commissions of Inquiry Act 1995, etc.). These amendment parts are noted as having been incorporated into the authorised versions of those Acts. The Act has been subject to multiple revisions to refine its operations and clarify procedural safeguards, particularly around the suspension and removal of the Chief Commissioner.

The Act itself provides for judicial review of Integrity Tribunal determinations under the Judicial Review Act 2000 (s 79). It also allows a person subject to a notice to comply after claiming privilege to apply to the Supreme Court to determine the claim (s 92). The Act provides for injunctions by the Supreme Court on application of the Integrity Commission (s 99). It also includes a provision that the Act does not affect the privileges of Parliament (s 100). The Act contains no express provision for appeal on the merits; only judicial review for administrative law grounds. The Commission’s decisions to investigate, not investigate, or discontinue an investigation are not reviewable by the Joint Committee (s 24(2)), but may be subject to judicial review under general principles. The Act also requires an independent review of the Act by a person who holds or has held judicial office (s 106), which must be commissioned after 31 December 2015. That review must consider the operation of the Act, the Commission, the Parliamentary Standards Commissioner, the Joint Committee, and regulations. The report must be tabled in Parliament. No specific case law is mentioned in the Act itself; the user-provided source does not name any cases. However, it is notable that the Act’s provisions on privilege (s 92) are quite detailed, suggesting an awareness of potential litigation around compulsion of evidence. The Act also includes a robust confidentiality regime (ss 94, 98) which has likely been tested in proceedings concerning unauthorised disclosure. The Act’s interaction with the Judicial Review Act (s 79) means that decisions of the Integrity Tribunal are subject to the usual grounds of review under that Act. The provision allowing witnesses to apply for financial assistance for legal costs (s 83) may also generate litigation expenses management issues. The suspension and removal provisions for the Chief Commissioner (ss 15E-15K) involve both Houses of Parliament, potentially creating constitutional litigation concerning the separation of powers and parliamentary privilege. There is also potential for litigation regarding the scope of “serious misconduct” and whether particular conduct falls within the definition. The Commission’s power to issue search warrants and surveillance device warrants (ss 51, 53, 73, 75) could be challenged on standard grounds. Overall, the Act anticipates judicial oversight but does not name any specific cases.

Several provisions in the Act may catch practitioners off guard. First, the definition of “misconduct” includes a “breach of a code of conduct applicable to the public officer” (s 4(1)(a)(i)). This means that a non-legal code of conduct, such as an internal public authority code, can ground a finding of misconduct under the Act. The Act does not require the breach to be serious or dishonest; any breach qualifies as misconduct, though serious misconduct has a higher threshold. Second, complaints can be made anonymously (s 33(1A)). This means a public officer may be investigated based on an anonymous complaint, though the chief executive officer may dismiss a complaint that is frivolous or vexatious or not made in good faith (s 36). Third, the time limit for making a complaint: if the complainant had knowledge of the subject matter for more than a year and fails to give a satisfactory explanation for the delay, the complaint may be dismissed (s 36(1)(g)). This is not an absolute bar, but a discretion. Fourth, the chief executive officer may issue notices that are “confidential documents” under s 98, and a person who receives or discovers such a notice commits an offence (up to 2000 penalty units) if they disclose its existence or contents without reasonable excuse. Reasonable excuses include seeking legal advice or obtaining information to comply, but the person must inform the recipient that it is an offence to further disclose (s 98(2)). This creates a trap for unwitting disclosure to colleagues or family. Fifth, the claim of privilege procedure under s 92 is strict: if a person claims privilege and the requirement is not withdrawn, they must either comply within 14 days or apply to the Supreme Court. If they do neither, they cannot claim privilege as a reasonable excuse for non-compliance later. Sixth, s 93 provides that a person charged with a crime or offence in respect of a matter cannot be required to give evidence about that matter unless the charge has been finally disposed of. This is a protection but may be overlooked. Seventh, s 95(2) protects persons who provide information or make statements “in good faith” from civil proceedings. However, s 96 makes it an offence to make a statement knowing it to be false or misleading, or omitting matter knowing the statement is then false or misleading. This is a high bar but catch-all for complainants. Eighth, s 88(3) allows the Integrity Commission to direct the Commissioner of Police to stop an investigation if the Commission assumes responsibility. This can disrupt internal police disciplinary processes. Ninth, the principal officer of a public authority is required under s 32 to ensure public officers receive education and training relating to ethical conduct, including the operation of the Act. Failure to do so could be a basis for a complaint of misconduct against the principal officer. Tenth, the Integrity Tribunal’s hearings are presumptively open to the public (Schedule 6 clause 1), but the Tribunal may close them on reasonable grounds. This could lead to reputational damage before any finding. Eleventh, a determination of the Integrity Tribunal under s 78 is reviewable under the Judicial Review Act (s 79), but the Act does not provide for a merits review or appeal. A person found to have engaged in misconduct may only challenge on grounds such as procedural fairness or jurisdictional error. Twelfth, the Act contains a non-application provision for existing code of conduct allegations (s 103) - any such allegation made or investigation commenced before the Act’s commencement is not covered. This grandfathering may be missed. Finally, the Board may delegate most of its functions (s 16), and the CEO may delegate responsibilities, functions, or powers except the power of delegation (s 19). This means that many decisions may be made by delegates, and the identity of the decision-maker may not be obvious.

Compliance with the Integrity Commission Act 2009 requires both proactive measures by public authorities and reactive steps when complaints arise. For public authorities, the primary obligation is on the principal officer under s 32 to ensure that all public officers receive appropriate education and training relating to ethical conduct. This training must cover the operation of the Act and any Act relating to the conduct of public officers, the application of ethical principles and obligations, the content of any applicable code of conduct, and the rights and obligations of public officers regarding contraventions of codes. Public authorities should develop and implement codes of conduct (the Integrity Commission may develop standards and codes under s 8(1)(a)). They should also establish internal complaint-handling procedures, as the Act allows complaints to be referred to the public authority for investigation (s 38(1)(b)). When a complaint is referred, the principal officer must investigate and report back to the chief executive officer (s 39). The public authority must cooperate with any assessment, investigation, or inquiry by the Commission, including providing access to premises (s 50), documents, and information (s 47). Public officers must comply with any lawful requirement or direction from an investigator or the Integrity Tribunal, subject to privilege claims (s 92). Failure to comply can lead to criminal penalties. Public officers should be aware of the confidentiality obligations under s 98 - if they receive a notice marked confidential, they must not disclose its existence or contents unless they have a reasonable excuse. They should seek legal advice if unsure, and must inform any person they disclose to that it is an offence to further disclose. In making a complaint, a person must not make false or misleading statements (s 96). Complaints can be made anonymously (s 33(1A)), but the chief executive officer may dismiss complaints that are frivolous, vexatious, not made in good faith, or lacking substance (s 36). If a complaint is made against a public officer, that officer should cooperate with the assessment (s 35) and investigation (s 44) and may be entitled to notice of the investigation (s 44(2)), a draft report, and an opportunity to comment (s 56). If the matter proceeds to an inquiry before the Integrity Tribunal, the officer has rights to notice (s 65), representation (s 66), and to respond (s 70). The officer should consider engaging legal representation early. The principal officer must ensure that the public authority implements any recommendations or sanctions referred by the Commission or Tribunal (s 58(3), s 78(4)). The Commissioner of Police must comply with requests for assistance (s 21(4), s 88(2)), must stop an investigation if directed (s 88(3)), and must respond to Commission requests (s 91). The Commissioner should also maintain written agreements concerning provision of police officers (s 21(10)). The Integrity Commission itself must operate in accordance with its principles (s 9), act with as little formality as possible (s 9(3)), and report annually (s 11). The Board must avoid conflicts of interest (Schedule 3 clause 8) and ensure proper governance. The chief executive officer must maintain a register of complaints (s 34) and ensure proper assessment and referral processes. Overall, a culture of ethical conduct, combined with clear policies, training, and cooperation with the Commission, is the best compliance strategy.