Parliamentary Commissioner Act 1971

The Act defines several foundational concepts. The Commissioner is the Parliamentary Commissioner for Administrative Investigations, appointed by the Governor for a five year term (sections 5(1)-(3)), assisted by a Deputy Commissioner (section 5(1a)). The Act excludes former members of Commonwealth or State parliaments within the preceding three years from appointment (section 5(8)). The term authority is given a broad meaning in section 4A(1): it includes local governments, the Police Force, bodies established for a public purpose under a written law or by the Governor or a Minister, corporations or associations over which the State can exercise control, individuals or bodies delegated a power or function of a department or authority, and contractors or subcontractors. A department means a department of the Public Service (section 4). A person aggrieved is the person who appears from the complaint to be personally affected by the action to which the complaint relates (section 4). The principal officer of a department is its chief executive officer; for a contractor, it is the holder of the office specified in the relevant contract (section 4). The reportable conduct scheme introduces its own defined terms. Reportable conduct means a sexual offence, sexual misconduct, physical assault committed against, with or in the presence of a child, significant neglect of a child, or any behaviour that causes significant emotional or psychological harm to a child (section 19G(1)). Conduct that is reasonable for the discipline, management or care of a child, having regard to the child’s characteristics and any relevant code of conduct, is excluded, as is trivial or negligible conduct investigated and recorded under another workplace procedure (section 19G(2)). A reportable allegation is any information that leads a person to form a belief on reasonable grounds that an employee has engaged in reportable conduct or conduct that may involve reportable conduct (section 19F(1)). A reportable conviction is a conviction for an offence that is a sexual offence or an offence prescribed by the regulations, including spent convictions (section 19H). An employee of a relevant entity includes officers, employees, volunteers, contractors, carers, and family day care educators, and for religious bodies includes ministers of religion (section 19D(1)-(2)). The head of a relevant entity is generally the chief executive officer or principal officer, or a delegate (section 19E). The paramount consideration for the Commissioner and any person performing functions under Division 3B is the best interests of children (section 19K). The reportable conduct scheme applies to entities listed in Schedule 2 that exercise care, supervision or authority over children as part of their primary functions or otherwise, unless exempted by the Commissioner (section 19I).

The Act affects a wide range of persons and bodies. All departments and authorities are subject to investigation under the Act unless expressly excluded (section 13(1)-(2)). Excluded bodies include the Houses of Parliament and their committees and members, the Supreme Court, District Court, Family Court, Magistrates Court, Children’s Court, the State Administrative Tribunal, coroners, the Governor and the Governor’s Establishment, and departments or authorities specified in Schedule 1 (section 13(2)). Schedule 1 lists the Auditor General (to a limited extent), the Commissioner for Children and Young People, the Corruption and Crime Commission, the Director of Public Prosecutions, the Electoral Commissioner, the Information Commissioner, the Inspector of Custodial Services, the Parliamentary Commissioner and Deputy Commissioner themselves, the Public Sector Commissioner, Racing and Wagering Western Australia, any Royal Commission, and the Solicitor-General. The reportable conduct scheme in Division 3B applies to entities in Schedule 2, which includes public bodies (departments and authorities), providers of education services (schools, vocational education institutions, registered training providers, universities), providers of health services (health service providers, private hospitals, mental health services with inpatient beds for children, drug and alcohol treatment services with inpatient beds for children, ambulance services), providers of out-of-home care services, providers of child care services, providers of youth justice services, religious bodies that provide activities, facilities, programs or services providing means for adults to have contact with children, providers of disability services, and providers of accommodation and respite services for children. Employees of relevant entities are directly affected. An employee includes officers and employees of the entity, persons engaged by the entity to provide services to children (including volunteers and contractors), persons engaged by another to provide services to children on behalf of the entity, carers, and family day care educators (section 19D(1)). For religious bodies, this includes ministers of religion and religious leaders but not persons merely because they participate in worship (section 19D(2)). For the Police Force, it includes officers and constables appointed under the Police Act 1892 (section 19D(3)). Complainants are protected: a person is not liable to civil proceedings for making a complaint or providing information unless done in bad faith (section 30A). Persons in custody have special rights to communicate with the Commissioner confidentially (section 17A). The Commissioner, Deputy Commissioner, Acting Commissioner and staff are protected from civil and criminal liability for acts done in pursuance of the Act unless done in bad faith (section 30). The Act also affects persons who may be the subject of adverse comment in a report; they must be given an opportunity to be heard and their defence must be fairly set forth (section 25(7)).

The Act imposes specific duties and confers corresponding rights. The Commissioner has a duty to investigate decisions, recommendations, acts or omissions that relate to a matter of administration and affect any person in a personal capacity (section 14(1)). The Commissioner must notify the principal officer of the department or authority and the responsible Minister in writing before investigating (section 19(1)), though informal oral notification is permitted where the matter could be resolved expeditiously (section 19(1a)). The Commissioner must conduct investigations in private (section 19(2)). If during an investigation the Commissioner forms the opinion that the action was contrary to law, unreasonable, unjust, oppressive, improperly discriminatory, taken for an improper purpose, based on a mistake of law or fact, or wrong, the Commissioner must report that opinion and reasons to the principal officer and may make recommendations (section 25(1)-(2)). The Commissioner may request notification of steps taken to give effect to recommendations (section 25(4)). If no appropriate steps are taken, the Commissioner may send a copy of the report and recommendations to the Premier and may lay a report before each House of Parliament (sections 25(5)-(6)). The Commissioner must afford an opportunity to comment before making a report that may affect or concern a department or authority (section 19(4)). Under the reportable conduct scheme, the head of a relevant entity must ensure systems are in place for preventing reportable conduct, for reporting to the head or the Commissioner, for notifying the Commissioner, for investigating reportable allegations and convictions, and for handling investigation information (section 19R). The head must notify the Commissioner within seven working days of becoming aware of a reportable allegation or reportable conviction, providing specified information (section 19U(2)). The head must investigate or arrange an investigation (section 19W(1)). An employee who is the subject of an investigation has procedural rights: before any adverse finding, the employee must be informed of the investigation and the allegation or conviction, and given an opportunity to make submissions; the employee must also be informed of any proposed adverse finding and any proposed disciplinary or other action before it is taken (section 19X(2)-(3)). The employee may apply to the State Administrative Tribunal for review of a finding of the Commissioner on an investigation under section 19ZB(1)(a) (section 19ZF(1)). Complainants have a right to be informed of the result of an investigation and of the progress from time to time (section 26). A person aggrieved by the Commissioner’s finding on a reportable conduct investigation may seek review in the State Administrative Tribunal within 28 days (section 19ZF(2)). The Commissioner may delegate functions to the Deputy Commissioner or staff members, but not the power to delegate or to make reports or recommendations (section 11(1)). Persons in custody have rights to facilities for preparing complaints, to sealed envelopes posted to the Commissioner without undue delay, and to receive sealed envelopes from the Commissioner (section 17A(1)).

The Act creates several criminal offences with specified penalties. It is an offence for an officer to wilfully contravene or fail to comply with the provisions protecting the confidentiality of complaints by persons in custody, with a penalty of $200 (section 17A(6)). The head of a relevant entity who fails without reasonable excuse to notify the Commissioner of a reportable allegation or reportable conviction within seven working days commits an offence carrying a fine of $5,000 (section 19U(6)). It is a defence if the person honestly and reasonably believed another person had notified the Commissioner (section 19U(7)). Similarly, the head of a relevant entity who fails without reasonable excuse to investigate or to provide investigation information on request commits an offence with a fine of $5,000 (section 19W(7)). Failure without reasonable excuse to report the outcome of an investigation to the Commissioner under section 19Z(1) or to comply with a request for additional information under section 19Z(2) carries a fine of $5,000 (section 19Z(4)). The head of a relevant entity who fails without reasonable excuse to comply with a Commissioner’s requirement not to commence, or to suspend, an investigation under section 19ZC(1)(c) also faces a fine of $5,000 (section 19ZC(4)). Obstruction is an offence: any person who wilfully obstructs, hinders or resists the Commissioner or another person in the exercise of powers, or refuses or wilfully fails to comply with a lawful requirement, or wilfully makes a false statement to or misleads the Commissioner, is guilty of an offence (section 24). Unlawful disclosure of information obtained in the course of an investigation is an offence (section 23(2)). Publishing information that identifies, or is likely to lead to the identification of, a person who has made a report under section 19T carries a penalty of two years imprisonment or a fine of $8,000 (section 19ZJ(2)). Publishing information identifying a child who is the subject of conduct forming the basis of a report or a finding of reportable conduct also carries two years imprisonment or a fine of $8,000 (section 19ZJ(3)). Victimisation is an offence: a person must not prejudice, intimidate, harass, or act to the detriment of another person because that person has made a complaint, provided information, made a report under section 19T, given a notification under Division 3B, provided information in an investigation, or exercised a power or performed a duty under the Act (section 30B(1)). The penalty is $8,000 or imprisonment for two years (section 30B(1)). Attempting to commit such an offence or inciting another to do so is also an offence with the same penalty (sections 30B(2)-(3)). A general penalty of $1,000 applies to any offence under the Act for which no other penalty is expressly provided (section 31). The expenses of administration are defrayed out of moneys provided by Parliament (section 32).

The Act establishes the Commissioner’s powers as paramount for investigative purposes while preserving certain privileges and secrecy obligations. The Commissioner has all the powers, rights and privileges of a Royal Commission under the Royal Commissions Act 1968, and that Act applies as if it were enacted in the Parliamentary Commissioner Act 1971 (section 20(1)). No obligation to maintain secrecy or other restriction on disclosure of information, whether imposed by any enactment or rule of law, applies to disclosure of information for the purposes of an investigation under the Act (section 20(2A)). The Crown and any authority to which the Act applies is not entitled to any privilege in respect of production of documents or giving evidence that is allowed in legal proceedings (section 20(2B)). However, a person is not compelled to give evidence or produce a document that could not be compelled in proceedings before a court (section 20(3)). Cabinet proceedings are protected: a person cannot be required or authorised under the Act to furnish information or answer questions relating to Cabinet or Cabinet committee proceedings, or to produce or inspect documents relating to such proceedings (section 22(1)). A certificate from the Director General of the Department of the Premier and Cabinet, approved by the Premier, is conclusive on this point (section 22(2)). The Act interacts with other integrity and oversight bodies. The Commissioner may consult the Corruption and Crime Commission, the Public Sector Commissioner, the Inspector of Custodial Services or the Director of Public Prosecutions concerning complaints or investigations (section 22A(1)). For the reportable conduct scheme, the Commissioner may also consult the Commissioner of Police, the Commissioner for Children and Young People, the CEO under the Children and Community Services Act 2004, and the CEO under the Working with Children (Criminal Record Checking) Act 2004 (section 22AA(3)-(4)). The Commissioner may disclose information to the Director of Public Prosecutions, the Corruption and Crime Commission, the Parliamentary Inspector, the Public Sector Commissioner, and the Inspector of Custodial Services in accordance with sections 22B and 22C. The Act expressly excludes certain bodies from its application, including the State Administrative Tribunal (section 13(2)(ka)), but the Tribunal has jurisdiction to review findings of the Commissioner under the reportable conduct scheme (section 19ZF). The Act displaces other enactments that would prohibit or restrict communication for the purpose of making a complaint (section 17(3)). Section 17A(5)(b) provides that its provisions giving persons in custody rights to communicate with the Commissioner have effect despite anything in any other Act, subject to sections 67 and 68 of the Prisons Act 1981. The Act does not authorise or require investigation of decisions made by Cabinet or a Minister or questioning the merits of any such decision (section 14(3)). The Commissioner generally must not investigate matters where the person aggrieved has a right of appeal, reference or review to a tribunal or a remedy by way of court proceedings, unless satisfied it is not reasonable to expect resort to that right or remedy (sections 14(4)-(5)). This restriction does not apply to matters referred by Parliament (section 15(3)). The Act also permits the Commissioner to serve as the ombudsman under energy and water ombudsman schemes by agreement, and such services are not regarded as functions under the Act, though section 30(1)-(3) protection applies (section 34).

The Act has been amended many times since its enactment in 1971. The most significant recent amendments were made by the Parliamentary Commissioner Amendment (Reportable Conduct) Act 2022 (No. 25 of 2022). That Act inserted the entire Division 3B reportable conduct scheme (sections 19C-19ZK) into Part III, added Schedule 2 listing relevant entities, amended section 4 to include new defined terms, inserted section 4A defining authority, amended sections 13, 14, 17A, 19, 20, 21, 22A, 22B, 23, 23A, 25, 29, 30B, and 31, inserted new sections 22AA (consultation for the reportable conduct scheme), 22C (disclosure for the reportable conduct scheme), 28 (annual report to include report on the scheme), 29A (delegation by Commissioner of Police), 30AA (protection from liability for giving information), and 33 (regulations). The Parliamentary Commissioner Amendment (Reportable Conduct) Act 2022 commenced in stages: Part 1 on 19 August 2022, the remainder except Part 2 Division 2 on 1 January 2023, and Part 2 Division 2 on 1 January 2024 (see compilation table). Earlier significant amendments include the Parliamentary Commissioner Amendment Act 1996 (No. 78 of 1996) which substantially revised the Act, including inserting the definition of authority, amending provisions about investigations, and inserting section 30A (protection of complainants) and section 30B (victimisation). The Parliamentary Commissioner Amendment Act 2009 (No. 10 of 2009) inserted Division 3A dealing with deaths of certain children, adding sections 19A and 19B, and substituted Schedule 1. The Inspector of Custodial Services Act 2003 (No. 75 of 2003) and the Corruption and Crime Commission Amendment and Repeal Act 2003 (No. 78 of 2003) amended definitions and consultation provisions. The Public Sector Management Act 1994 (No. 32 of 1994) and related amendments updated references to public service officers and employing authorities. The Statutes (Repeals and Minor Amendments) Act 2003 (No. 74 of 2003) made various minor amendments. The Criminal Law (Mental Impairment) Act 2023 (No. 10 of 2023) amended the definition of reportable conviction to include findings under the Criminal Law (Mental Impairment) Act 2023 section 41(2)(c). The Parliamentary Commissioner Amendment (Reportable Conduct) Act 2022 itself includes a review requirement: the Minister must review the operation and effectiveness of those amendments as soon as practicable after the fifth anniversary of the commencement of section 7 of that Act, and must lay the report before each House of Parliament within 12 months after that fifth anniversary (section 19ZK). The regulations power in section 33 specifically contemplates amendment of Schedules 1 and 2 and matters necessary or convenient for giving effect to the reportable conduct scheme.

The Act provides several avenues for judicial or tribunal oversight of the Commissioner’s activities. Section 29(1) allows the Commissioner or the party subject to an investigation to apply to the Supreme Court for a determination of whether the Commissioner has jurisdiction to conduct an investigation. The Court may make such order as it considers proper. For investigations under the reportable conduct scheme, a reference to the party subject to the investigation includes the relevant entity or its head (section 29(3)). Section 30(2) provides that no civil or criminal proceedings may be brought against the Commissioner, Deputy Commissioner or a member of staff for an act purportedly done under the Act without leave of the Supreme Court. The Court must not give leave unless satisfied there is substantial ground for the contention that the person acted in bad faith. Similarly, no civil proceedings may be brought against a person for making a complaint or providing information without leave of the Supreme Court, which must not be granted unless satisfied of substantial grounds for bad faith (sections 30A(3) and 30AA(4)). Section 30(3) expressly provides that no prerogative writ may be issued compelling the Commissioner to carry out any investigation, and that no proceedings may be brought seeking such a writ. Under the reportable conduct scheme, a person aggrieved by a finding of the Commissioner on an investigation conducted under section 19ZB(1)(a) (an investigation into a reportable allegation or reportable conviction) may apply to the State Administrative Tribunal for review of the finding (section 19ZF(1)). The application must be made within 28 days after the person is notified of the finding (section 19ZF(2)). For a review under this section, the Tribunal must be constituted by a judicial member as defined in the State Administrative Tribunal Act 2004 (section 19ZF(3)). The Commissioner’s finding is taken to be a decision for the purposes of the State Administrative Tribunal Act 2004 Part 3 Division 3 (section 19ZF(4)). Document privilege is also addressed: documents sent to or by the Commissioner, the Deputy Commissioner or a member of staff in the course of an investigation and prepared specifically for that investigation are privileged and not admissible in evidence in any proceedings other than for perjury or offences under the Royal Commissions Act 1968 or the Parliamentary Commissioner Act 1971 committed in proceedings on such an investigation (section 23A(1)). However, this privilege does not apply to documents sent in the course of an investigation by the head of a relevant entity under section 19W(1) or by the Commissioner under section 19ZB(1)(a) (section 23A(2)). Neither the Commissioner, Deputy Commissioner nor any staff member may be called to give evidence or produce documents in any court or judicial proceedings in respect of matters coming to their knowledge in the exercise of their functions, except as required for proceedings for perjury or offences under the Royal Commissions Act or this Act (section 30(4)). The Act also contains provisions for concurrent investigations: if a police investigation or another investigation is likely to be compromised, the Commissioner or head of a relevant entity may suspend an investigation or finding until otherwise advised, after consulting the Commissioner of Police or the other investigating body (section 19ZG).

Several provisions create traps for the unwary. The 12-month limitation period for complaints is a critical threshold. Section 17(5) provides that a complaint will not be entertained unless it is made not later than 12 months from the day on which the person aggrieved first had notice of the matters alleged, unless the Commissioner determines otherwise in the special circumstances of the case. This is not a jurisdictional bar but a gatekeeping provision; practitioners should advise complainants to act promptly and to document the date of first notice. The Commissioner’s discretion to refuse to investigate under section 18 is broad. The Commissioner may refuse to entertain a complaint or may discontinue an investigation if the matter is trivial, the complaint is frivolous, vexatious or not made in good faith, the person aggrieved lacks sufficient personal interest, or the investigation is unnecessary or unjustifiable having regard to all the circumstances (section 18(1)). This provision is not limited by grounds; it is a wide discretion and the Commissioner is not required to give reasons beyond informing the complainant of the decision and stating the reasons (section 18(2)). For the reportable conduct scheme, the definition of reportable conduct contains important carve-outs. Conduct that is reasonable for the discipline, management or care of a child, having regard to the child’s characteristics including age, health and developmental stage, and any relevant code of conduct or professional standard, is not reportable conduct (section 19G(2)(a)). Conduct that is trivial or negligible and has been or will be investigated and recorded as part of another workplace procedure is also excluded (section 19G(2)(b)). The Commissioner may exempt a class or kind of conduct from being reportable conduct (section 19N). The notification obligation under section 19U(2) requires the head of a relevant entity to give written notice to the Commissioner within seven working days after becoming aware of a reportable allegation or reportable conviction. The notice must include details including the employee’s name, date of birth, assessment notice identifying number, whether police have been contacted, the risk assessment and risk management action, and the entity’s contact details. Failure to do so without reasonable excuse attracts a fine of $5,000 (section 19U(6)). The head must also investigate as soon as practicable (section 19W(1)). There is a timing trap: the head must investigate before action is taken. Section 19W(3) requires a finding of reportable conduct or a finding that there are no grounds. Section 19X then requires the head to give the employee procedural fairness before any adverse finding and before any disciplinary action. The head cannot simply dismiss an employee first and investigate later. The prohibition on publishing identifying information is strict. Section 19ZJ makes it an offence to publish information that identifies or is likely to lead to the identification of a person who has made a report under section 19T, or a child who is the subject of conduct forming the basis of such a report or a finding of reportable conduct, with penalties of two years imprisonment or a fine of $8,000. Publication is defined broadly to include dissemination by any means, including online (section 19ZJ(1)). The defence that the publication is authorised under another Act is likely narrow. The Commissioner has power to exempt investigations under section 19P. This can be granted at the head’s request under section 19Y(3). If an exemption is granted, the head is not required to provide a report under section 19Z(1) (section 19P(6)). This is a useful mechanism where another body is already dealing with the matter. The Act provides that the Commissioner may act under section 19ZB only if it is in the public interest to do so (section 19ZB(2)). The Commission’s own investigations under section 19ZB(1)(b) or (c) (into handling or investigation by the head, or action taken in response to a finding) do not carry the same procedural obligations as investigations under section 19ZB(1)(a). For findings under section 19ZB(1)(a), the employee has a right to apply to the State Administrative Tribunal for review; for findings under (b) or (c), there is no express review right. Section 19L provides that certain offence provisions (sections 19U(6), 19W(7), 19Z(4) and 19ZC(4)) do not apply if the relevant entity is an agent of the Crown. Practitioners dealing with government entities should check whether the entity is an agent of the Crown; if so, the criminal penalties for non-compliance with those sections are unavailable, though the Commissioner may still have other remedies.

Entities and individuals subject to the Act should adopt a structured approach to compliance. For departments and authorities subject to the general administrative investigation function, the key requirement is to cooperate with the Commissioner. The principal officer must respond to notifications of investigation (section 19(1)), provide information as required, and give the person concerned an opportunity to comment before an adverse report is made (section 19(4)). The Commissioner has the powers of a Royal Commission under the Royal Commissions Act 1968 (section 20(1)), and those powers are broad. The principal officer should ensure that all relevant documents are preserved and that staff are instructed not to destroy or alter records once an investigation is notified. The protection for Cabinet proceedings in section 22 should be carefully invoked only where genuinely applicable. For entities subject to the reportable conduct scheme (Schedule 2 entities), compliance obligations are more detailed. The head of the entity must ensure that systems are in place as required by section 19R: a system for preventing reportable conduct, a system for enabling any person to report a reportable allegation or reportable conviction to the head (or to the Commissioner if it concerns the head), a system for notifying the Commissioner, a system for investigating and taking appropriate action, and a system for handling investigation information. These systems should be documented in policies and procedures, and staff should be trained. The head must ensure that a reportable allegation or reportable conviction is reported to the Commissioner in writing within seven working days of becoming aware of it, with the prescribed information (section 19U(2)). The head should designate a responsible officer to track these timelines. The head must then investigate or arrange an investigation as soon as practicable (section 19W(1)). The investigator must be competent and independent; the head may engage an independent investigator (section 19W(1)(a)(iii)). The investigation must be timely (section 19W(2)). The employee who is the subject of the investigation has procedural rights under section 19X: before any adverse finding, the head must inform the employee of the investigation and the allegation or conviction, and give the employee an opportunity to make submissions. The head must then inform the employee of the proposed adverse finding and give another opportunity to make submissions before finalising it. Before any disciplinary or other action is taken, the head must inform the employee of the proposed action and give an opportunity to make submissions. These rights mirror natural justice requirements. Proceedings must be documented. A report of the outcome must be given to the Commissioner under section 19Z(1), including findings, reasons, submissions, any disciplinary action taken, and reasons if no action is taken. A copy must also be given to the employee under section 19ZA(2). If the Commissioner decides to conduct an own investigation under section 19ZB, the head must comply with any requirement not to commence or to suspend an entity investigation (section 19ZC(1)(c)). The head must consult with police or other bodies if there is a concurrent investigation (section 19ZG). The entity must have a process for handling requests for information from the Commissioner under section 19W(5) and for complying within required timeframes. The entity must also manage confidentiality: the prohibition on publishing identifying information in section 19ZJ must be communicated to all staff. The entity should have a data breach response plan that addresses this prohibition. For the protection of complainants and reporters, the entity must ensure no victimisation occurs (section 30B). The entity should have a whistleblower policy that aligns with this provision. Finally, the entity should keep records of all notifiable matters and outcomes, as the annual report under section 28 must include a description of the Commissioner’s activities, an evaluation of entity responses to recommendations, and a description of trends, notifications and investigations. The entity should maintain a register of reportable allegations and convictions and track investigation timeframes. The Commissioner has power to request information about the entity’s systems under section 19S and to make recommendations for action (section 19S(3)). The entity should respond promptly to such requests.