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Integrity Bill 2009
Integrity Bill 2009
Explanatory Notes
Short title
The short title of the Bill is the Integrity Bill 2009.
Objectives of the Bill
The Integrity Bill 2009 will create a new stand-alone Integrity Act
containing the provisions establishing the office of the Integrity
Commissioner currently contained in the Public Sector Ethics Act 1994 to:
· enhance the functions and independence of the Integrity
Commissioner, including providing for the Integrity Commissioner to
be an officer of the Parliament;
· create a statutory basis for the Register of Lobbyists and ban the
payment of success fees to lobbyists;
· amend the Parliament of Queensland Act 2001 to rename the
Members' Ethics and Parliamentary Privileges Committee the
Integrity, Ethics and Parliamentary Privileges Committee with an
additional area of responsibility of oversight of the performance and
functions of the Integrity Commissioner; and
· amend the Government Owned Corporations Act 1993 to bring
government owned corporations (GOCs) within the jurisdiction of the
Crime and Misconduct Commission (CMC) in relation to misconduct
investigations.
Reasons for the Bill
On 29 July 2009, the Premier announced a review of integrity and
accountability in Queensland which focussed on a broad range of integrity
and accountability issues including political fundraising, the adequacy of
internal misconduct investigation procedures and dealing with
pecuniary/conflict of interest matters.
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Integrity Bill 2009
On 6 August 2009, the Government released the discussion paper, Integrity
and Accountability in Queensland (the Discussion Paper) to prompt public
discussion on integrity and accountability issues and seek public input on
proposals for integrity reform.
In addition, a round table of experts was appointed to consider the feedback
received on the Discussion Paper and provide recommendations to the
Government on proposals for reform.
Achievement of the Objectives
In recognition of the importance of the role of the Integrity Commissioner
in Queensland's integrity framework, the Bill will relocate the provisions
establishing the Integrity Commissioner from the Public Sector Ethics Act
1994 to a new stand-alone Integrity Act. The Bill will re-enact and
enhance the current provisions setting out the Integrity Commissioner's
functions of giving ethics or integrity and conflict of interest advice to
designated persons.
The Government has previously announced that all Government Members
of Parliament will be required to meet annually with the Integrity
Commissioner to discuss matters related to their statement of interests to
the Register of Members' Interests. Accordingly, the Bill includes an
additional function for the Integrity Commissioner to give oral or written
advice to Members of Parliament on these statements at meetings. The
amendments in the Bill will facilitate, but not mandate, the process for the
Integrity Commissioner providing advice to Members.
In addition, the Integrity Commissioner will report on compliance by chief
executives with the requirement under the Public Service Act 2008 to lodge
statements of interest with their Minister. To facilitate this report, the
Public Service Act 2008 will be amended to require chief executives to
provide the Integrity Commissioner and the chief executive of the Public
Service Commission with a copy of their statement, as well as confirmation
that the statement has been provided to their Minister. Chief executives
who do not comply with the requirement may be identified in the Integrity
Commissioner's annual report.
The Bill will also create a statutory basis for the Register of Lobbyists,
which is currently administratively established within the Department of
the Premier and Cabinet under the Queensland Contact with Lobbyists
Code. The Integrity Commissioner will be responsible for the Lobbyists
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Integrity Bill 2009
Register, ensuring the independence of the lobbyist registration process
from executive government.
To enhance the independence of the office, the Integrity Commissioner will
also be made an officer of the Parliament, reporting through a
parliamentary committee rather than to the Premier. In accordance with
reporting arrangements for other independent statutory offices, the
Integrity Commissioner's appointment will require consultation with the
committee, and removal from office will only be able to occur on motion of
the Assembly.
The legislative Lobbyists Register will continue current administrative
practice, with some amendments being made to definitions, scope and
procedure. Lobbyists will be required to apply to be listed on the Register
prior to undertaking lobbying activities with government, and government
representatives will not be permitted to allow lobbying activity except by
registered lobbyists. The requirements, which already apply to Ministers,
Parliamentary Secretaries, Ministerial and public sector staff, will be
expanded to cover councillors, local government employees and staff of
government owned corporations.
In addition, former senior government representatives (former Ministers,
Parliamentary Secretaries, Ministerial and Parliamentary Secretary office
staff and senior executives within the public sector) will be restricted from
lobbying in areas with which they have had official dealings for two years
after ceasing to hold public office.
The payment of success fees to lobbyists will be prohibited, and subject to
a maximum penalty of 200 penalty units and forfeiture of any success fee
to the State. In accordance with the Competition Principles Agreement, a
Public Benefit Test was conducted on the proposed ban which concluded
that the benefits to both the community and the lobbying industry of
increased public confidence in government decision-making and the ethical
conduct of the lobbying industry outweigh the detriment of any restriction
on competition.
In order to allow Parliamentary oversight of the Integrity Commissioner's
functions, the name and responsibilities of the Members' Ethics and
Parliamentary Privileges Committee under the Parliament of Queensland
Act 2001 will be amended. The committee will be renamed the Integrity,
Ethics and Parliamentary Privileges Committee with an additional area of
responsibility of oversight of the Integrity Commissioner's performance
and functions.
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Integrity Bill 2009
The Bill will also amend the Government Owned Corporations Act 1993 to
bring GOCs within the jurisdiction of the CMC in relation to misconduct
investigations. This will ensure that the use of public resources by these
bodies is subject to the scrutiny of the CMC and that any incidences of
corruption or alleged corruption can be appropriately pursued. The
amendments will not apply to declared entities under the Infrastructure
Investment (Asset Restructuring and Disposal) Act 2009.
Alternative Ways of Achieving Objectives
The introduction of a legislative Lobbyists Register is considered necessary
in order to strengthen the current administrative system. Providing the
Integrity Commissioner with responsibility for administration of the
Register will ensure the independence of the lobbyist registration process.
The Public Benefit Test on the ban on the payment of success fees
considered alternatives to a legislative prohibition, such as contractual
restrictions or self-regulation, and the relative effectiveness of the
alternative ways of prohibiting success fees. The report concluded that the
alternatives would not be as effective as a legislative ban in achieving the
Government's overall objective of implementing the ban in order to
enhance public confidence in the integrity, objectivity and impartiality of
government decision-making.
Changes to the name and functions of the Members' Ethics and
Parliamentary Privileges Committee, and bringing GOCs within the
jurisdiction of the CMC in relation to misconduct investigations, can only
be implemented through legislative amendment.
Estimated Cost for Government Implementation
The transfer of responsibility for the Register of Lobbyists from the
Department of the Premier and Cabinet to the Integrity Commissioner will
have a resourcing impact on the office of the Integrity Commissioner,
which is administratively located within the Public Service Commission.
In recognition of this impact, additional staff will be assigned to the office
of the Integrity Commissioner to administer the Lobbyists Register.
Consistency with Fundamental Legislative Principles
The Bill is generally consistent with fundamental legislative principles.
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Clause 8 of the Bill provides protection for the Integrity Commissioner
from civil liability for acts or omissions done or made where the Integrity
Commissioner is acting in good faith and without negligence under the
Act. The liability will instead attach to the State. This provision continues
an existing protection for the Integrity Commissioner under section 36 of
the Public Sector Ethics Act 1994. While the principle of equality before
the law and that each person should be liable for their acts and omissions is
recognised, the continuation of the protection is considered justified in this
circumstance given the protection does not extend to negligent acts and is
intended to allow the Integrity Commissioner to fulfil statutory duties.
In addition, under clause 40, designated persons acting on the advice of the
Integrity Commissioner in resolving a conflict of interest issue are
provided with limited protection in a civil proceeding or an administrative
process if the action is substantially in accordance with the Integrity
Commissioner's advice. This provision continues an existing protection
for designated persons under section 35 of the Public Sector Ethics Act
1994 and is considered warranted to ensure that designated persons would
not be liable under, for example, disciplinary processes, where they have
acted in accordance with the Integrity Commissioner's advice.
Under clauses 29 to 33, 38 and 39 of the Bill, the Premier, a Minister,
Parliamentary Secretary, chief executive or Leader of the Opposition may
be provided with documents about a request for advice about another
person. For example, information about certain persons may be provided
to the Premier if the Integrity Commissioner identifies a real or significant
conflict of interest and the person, after being provided opportunity, fails to
resolve the conflict. In other cases the person accessing the information
must be authorised to seek advice about the person. The comments from
the Scrutiny of Legislation Committee about this provision in the Public
Sector Ethics Act 1994 are noted where the committee acknowledged that it
"can be argued it is appropriate for [particular designated persons], (all of
whom are "superiors" of the "designated person" with the conflict of
interest problem) to be able to inform themselves about the issue and about
the commissioner's view of it.". This provision will allow appropriate
monitoring and scrutiny of potential ethics or integrity issues.
Under clauses 16 to 20 of the Bill, particular designated persons may ask
for the Integrity Commissioner's advice about ethics or integrity issues of
other designated persons of lower ranking. In 1999, the Scrutiny of
Legislation Committee commented on the potential impact of this
provision on the rights of the other designated person but noted that the Bill
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Integrity Bill 2009
does not make the Integrity Commissioner's view conclusive of the matter.
Continuation of this provision is proposed to allow designated persons to
take steps to resolve any identified ethics or integrity issues involving other
officers within a designated person's area of responsibility. The Integrity
Commissioner does not have an investigative role and can only act on the
information provided that is relevant to the request for advice. These
provisions have operated successfully since 1999 and are generally
considered to provide an effective process to seek confidential and
authoritative advice to assist in the resolution of conflict of interest issues.
The Bill allows the Integrity Commissioner to refuse to give advice on an
ethics or integrity issue or a matter relevant to the Register of Members'
Interests or the Register of Related Persons' Interests (clauses 21 and 23).
The Integrity Commissioner may refuse to give the advice if he or she
reasonably believes there is not enough information, or the giving of the
advice would not be in keeping with the purpose of the Act and must
provide written reasons for the decision. While this decision is not subject
to review and is dependent on the opinion of the Integrity Commissioner,
the provision recognises the fact that the Integrity Commissioner does not
have an investigative role and may only act and provide advice in response
to information provided by the designated person seeking advice. Written
reasons must be given for the reasons for the refusal. As an independent
statutory officer of Parliament, a separate review of the Integrity
Commissioner's decision would not be appropriate; however, the
parliamentary committee will have general responsibility for oversight of
the performance of the Integrity Commissioner's functions.
The Bill regulates lobbying activities involving public sector officers and
clause 47 allows an extension of the definition of `public sector officer' by
Regulation to include other entities assisted by public funds. This
provision is considered necessary to allow flexibility in applying the
lobbying provisions to entities which are funded by government. The Bill
only allows an extension, rather than a restriction, to the scope of the Act
and can only apply to entities assisted by public funds.
Under the Bill, the Integrity Commissioner administers the Lobbyists
Register and has responsibility for deciding registration applications from
lobbyists. Accordingly, the Bill empowers the Integrity Commissioner to
refuse or cancel a registration (clauses 60 and 66). The refusal or
cancellation can only occur after a show cause process takes place, in
which lobbyists are provided with reasons for the proposed refusal or
cancellation and given the opportunity to make representations to the
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Integrity Commissioner. There is no further appeal on a decision to refuse
or cancel a registration, although the lobbyist could seek review of the
decision under the Judicial Review Act 1991. Although the decision to
refuse or cancel a registration is recognised to affect a lobbyist's livelihood,
it is important that the Integrity Commissioner have power to restrict
membership of the Lobbyists Register in appropriate circumstances to meet
the purpose of the Bill of regulating lobbying in accordance with public
expectations of transparency and integrity. As the Integrity Commissioner
is an independent statutory officer of the Parliament, a separate review of
the Integrity Commissioner's decision would not be appropriate; however,
the parliamentary committee will have general responsibility for oversight
of the performance of the Integrity Commissioner's functions.
Clause 68 of the Bill provides for a code of conduct for lobbyists which
sets out standards of ethical conduct for the lobbying industry in contact
with government. Breaches of the code by a lobbyist would provide a basis
for removal from the Lobbyists Register. The code of conduct is to be
approved by the Integrity Commissioner following consultation with the
parliamentary committee. Having regard to the role of the Integrity
Commissioner as an independent and authoritative source of advice on
ethics and integrity matters, it is considered appropriate that the Integrity
Commissioner develop guidance on appropriate standards of ethical
behaviour for the lobbying industry. Approval by the Integrity
Commissioner will also facilitate administrative flexibility in allowing
amendment to the code as required in response to any emerging issues. In
recognition of the pre-eminence of the institution of Parliament in the
delegation of this power, the Integrity Commissioner will be required to
consult with the parliamentary committee prior to approval of the code.
The Bill introduces a new reporting requirement for the Integrity
Commissioner to report on compliance by chief executives of the
requirement to provide statements of interest to Ministers (clause 85).
While the ability to identify non-complying chief executives in the annual
report could be considered to be an infringement on the privacy of the
individuals involved, relevant officers will be provided opportunity to
comply with the requirement prior to the commencement of the reporting
process and will not be identified if they have met their obligations under
the Public Service Act 2008. The Integrity Commissioner will only report
on the provision of statements and will not further consider or comment on
information contained in the statements.
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Consultation
Over 200 submissions on the Discussion Paper were accepted by the
Department of the Premier and Cabinet and non-confidential submissions
have been published on the Department's website. In addition to written
submissions, the Government considered feedback received at regional
forums held in Toowoomba, Sunshine Coast, Townsville, Cairns,
Bundaberg, Mackay, Gold Coast, Rockhampton and Brisbane over the
period 25 August 2009 to 15 September 2009.
The Integrity and Accountability round table considered summaries of the
results of consultation and made recommendations to government on
reforms to the integrity and accountability framework.
The Integrity Commissioner was consulted on the draft Bill.
Consistency with legislation of other jurisdictions
The Bill is specific to the State of Queensland, and the extent to which it is
uniform with or complementary to the Commonwealth or another state is
not relevant in this context. However approaches in other jurisdictions were
taken into consideration in the development of the Bill.
Notes on Provisions
Chapter 1 Preliminary
Clause 1 sets out the short title of the Bill.
Clause 2 provides for the commencement of the Bill on a day to be fixed by
proclamation.
Clause 3 states that the dictionary in schedule 2 defines particular words
used in this Bill. However, certain core concepts for chapter 3 and chapter
4 are defined in those chapters.
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Clause 4 establishes the purpose of the Bill, which is to encourage
confidence in public institutions. This is achieved through the Integrity
Commissioner's functions of assisting Ministers and other designated
persons to deal appropriately with ethics and integrity issues, and
regulating contact between lobbyists and government representatives in
accordance with public expectations of transparency, and integrity.
Clause 5 provides that the Bill binds all persons including the State and, as
far as the legislative power of the Parliament permits, the Commonwealth
and all other states, but does not make the State or other jurisdictions liable
for an offence.
Chapter 2 Integrity commissioner
Clause 6 establishes the office of Queensland Integrity Commissioner. The
Bill implements enhancements to the functions and independence of the
Integrity Commissioner, including providing that the Integrity
Commissioner is to be an officer of the Parliament.
Clause 7 provides that the Integrity Commissioner has the functions of--
· providing advice to designated persons in relation to ethics or integrity
issues. In accordance with clause 9, the Premier may also seek advice
on standard-setting for ethics or integrity matters generally;
· meeting with and giving written or oral advice to Members of the
Legislative Assembly on matters related to the Register of Members'
Interests or Register of Related Persons' Interests;
· administering the Register of Lobbyists; and
· raising public awareness of ethics or integrity issues by contributing to
public discussion of issues relevant to the commissioner's functions.
However, in performing this function, the Integrity Commissioner
must not disclose information likely to identify a specific person or
request for advice.
Clause 8 provides that the Integrity Commissioner is not liable in a civil
proceeding or under an administrative process for acts or omissions done or
made by the commissioner in good faith and without negligence for the
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Integrity Bill 2009
purposes of the Act. Liability instead attaches to the State. This clause
continues an existing protection for the Integrity Commissioner under
section 36 of the Public Sector Ethics Act 1994.
Chapter 3 Advice on ethics or integrity
issues
Part 1 Core concepts
Clause 9 defines `ethics or integrity issue'. An ethics or integrity issue is
defined to include a conflict of interest issue.
Clause 10 defines `conflict of interest issue'. A conflict of interest issue
was previously the only category of advice which could be sought by
designated persons other than the Premier under the Public Sector Ethics
Act 1994. The Acts Interpretation Act 1954, section 36 definition of
`interest' does not apply to a reference to an interest or conflict of interest.
Clause 11 defines `interests issues'. The Bill introduces a new category of
advice not provided under the Public Sector Ethics Act 1994 which allows
Members of the Legislative Assembly to seek advice on matters related to
the Register of Members' Interests or Register of Related Persons'
Interests.
Clause 12 establishes the classes of persons who may seek advice from the
commissioner under the Bill. `Designated persons' include all Members of
the Legislative Assembly, statutory office holders, chief executives and
senior executives of departments and public service offices and Ministerial
office and Parliamentary Secretary office staff. In addition, the Bill allows
for chief executives or senior executives of government entities and other
classes of persons to become designated persons upon written nomination
by the responsible Minister or Parliamentary Secretary.
Clause 13 provides that in chapter 3, a reference to information includes a
document.
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Part 2 Advice for designated persons
on ethics or integrity issues
Clause 14 excludes chapter 3, part 2 from application to advice given to a
Member of the Legislative Assembly on an interests issue.
Clause 15 establishes the conditions under which a designated person may
request advice from the Integrity Commissioner. The request must be in
writing, and if the advice is sought by a senior executive, senior officer or
equivalent, the request must be authorised by the officer's chief executive.
The designated person must disclose all relevant information and provide
any further information requested to the Integrity Commissioner to allow
the commissioner to give the advice. A designated person may seek advice
about a matter relating to their own interests and other particular designated
persons can seek advice about another designated person as provided for
under clauses 16 to 20. For the avoidance of doubt, subject to clause 16
(which allows the Premier to seek advice about former designated persons
except non-government Members), advice may not be sought by or about a
person who has been, but is not presently, a designated person.
Clause 16 allows the Premier to seek advice about an ethics or integrity
issue involving any person who is or has been a designated person, other
than a non-government Member of the Legislative Assembly.
Clause 17 allows a Minister to seek advice about an ethics or integrity issue
involving a designated person who is a statutory office holder or chief
executive within the Minister's portfolio responsibilities or Ministerial
office staff member or nominee.
Clause 18 allows a Parliamentary Secretary to seek advice about an ethics
or integrity issue involving a designated person who is a Parliamentary
Secretary office staff member or nominee.
Clause 19 allows the Leader of the Opposition to seek advice about an
ethics or integrity issue involving a non-government Member of the
Legislative Assembly within the Leader of the Opposition's political party.
Clause 20 allows a chief executive of a department or public service office
to seek advice about an ethics or integrity issue involving a designated
person employed in the department or office. Chief executives of
government entities can seek advice about senior executive equivalents
employed in the government entity and nominated by the Minister.
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Clause 21 provides the process for the provision of advice on an ethics or
integrity issue. The Integrity Commissioner must provide the advice in
writing, having regard to codes of conduct and ethical standards as
considered appropriate. The Integrity Commissioner may refuse to give
advice in relation to an issue where the commissioner reasonably believes
that he or she has insufficient information, or that the giving of advice
would not be in accordance with the purpose of the Act. The Integrity
Commissioner must give written reasons for a refusal to give advice.
Part 3 Meeting with and advice for
members of Legislative
Assembly on interests issues
Clause 22 allows Members of the Legislative Assembly to request
meetings with the Integrity Commissioner regarding interests issues.
Members must disclose all relevant information and provide any further
information requested to the Integrity Commissioner to allow the
commissioner to give advice to the Member.
Clause 23 provides the process for meetings and the provision of advice on
interests issues. The Integrity Commissioner may provide the advice orally
or in writing, having regard to codes of conduct and ethical standards as
considered appropriate. The Integrity Commissioner may refuse to give
advice in relation to an issue where the commissioner reasonably believes
that he or she has insufficient information, or that the giving of advice
would not be in accordance with the purpose of the Act. The commissioner
must give written reasons for a refusal to give advice.
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Part 4 Confidentiality and protection
Division 1 Secrecy
Clause 24 establishes that a person must not record, use or disclose
information about an ethics or integrity issue involving another person.
Such an action is punishable with a maximum penalty of 85 penalty units
or one year's imprisonment. This does not prevent persons publishing
advice about an ethics or integrity issue involving themselves. Information
may not be recorded, used or disclosed unless disclosure is required for
performance of functions under chapter 3 of the Bill or is authorised under
this or another Act. Persons involved in the administration of the Act are
not compellable in any proceeding to disclose information that came to the
person's knowledge due to their involvement in the administration of
chapter 3.
Division 2 Authorised disclosures ethics or
integrity issue
Clause 25 sets out definitions for chapter 3, part 4, division 2 of
`designated person to whom a relevant document relates' and `relevant
document'.
Clause 26 provides that disclosures of advices on ethics or integrity issues
may be authorised under this division.
Clause 27 authorises disclosure of relevant documents by the designated
person who is the subject of the advice. In effect, a person who is the
subject of an ethics or integrity issue advice may disclose the advice or
related information to the world at large.
Clause 28 authorises the Integrity Commissioner to disclose relevant
documents to the person to whom the document relates.
Clause 29 provides that the Premier may request, and be provided by the
commissioner with, relevant documents about an ethics or integrity issue
advice in relation to any designated person other than a non-Government
Member of the Legislative Assembly, senior executive officer, senior
officer or equivalent. The Integrity Commissioner may, in specified
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Integrity Bill 2009
circumstances, provide the Premier with a document about an ethics or
integrity issue advice on his or her own motion. Before providing the
document to the Premier, the commissioner must have formed the view that
an actual and significant ethics and integrity issue exists and advised the
designated person of the view. The document may only be provided to the
Premier if the person has failed to resolve the issue to the commissioner's
satisfaction within five business days of receiving the commissioner's
advice.
Clause 30 allows the Integrity Commissioner to provide a copy of relevant
documents to a Minister, upon request, if the document relates to a person
about whom the Minister may request advice.
Clause 31 allows the Integrity Commissioner to provide a copy of relevant
documents to a Parliamentary Secretary, upon request, if the document
relates to a person about whom the Parliamentary Secretary may request
advice.
Clause 32 provides that the Leader of the Opposition may request, and be
provided by the commissioner with, a relevant document about an ethics or
integrity issue advice in relation to a Member of the Legislative Assembly
within the same political party as the Leader of the Opposition. The
Integrity Commissioner may provide the Leader of the Opposition with
information about an ethics or integrity issue advice on his or her own
motion under the same circumstances as the Premier under clause 29 where
the person has been advised of the identification of a significant issue and
been provided with the opportunity to resolve the issue.
Clause 33 allows the Integrity Commissioner to provide a copy of a
relevant document to chief executives of departments, public service
offices or government entities, upon request, if it is a person about whom
the relevant chief executive may request advice.
Division 3 Authorised disclosures interests
issues
Clause 34 sets out definitions for chapter 3, part 4, division 3 of `member
to whom a relevant document relates' and `relevant document'.
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Integrity Bill 2009
Clause 35 provides that disclosures of advices on interests issues of
Members of the Legislative Assembly may be authorised under this
division.
Clause 36 authorises disclosure of relevant documents by the Member of
the Legislative Assembly who is the subject of the advice. In effect, the
Member the subject of the advice may disclose the advice or related
information to the world at large.
Clause 37 authorises the Integrity Commissioner to disclose a relevant
document to the Member to whom the document relates.
Clause 38 provides that the Premier may request, and be provided by the
Integrity Commissioner with, relevant documents about an interests issue
advice in relation to a Member of the Legislative Assembly, other than a
non-government Member. The Integrity Commissioner may, in specified
circumstances, provide the Premier with documents about an interests issue
advice on his or her own motion. Before providing such documents to the
Premier, the commissioner must have formed the view that an actual and
significant ethics and integrity issue exists and advised the designated
person of the view. The documents may only be provided to the Premier if
the person has failed to resolve the issue to the commissioner's satisfaction
within five business days of receiving the commissioner's advice. The
Premier is not empowered to further disclose the documents other than to
the Member to whom the documents relates.
Clause 39 provides that the Leader of the Opposition may request, and be
provided by the commissioner with, a relevant document about interests
issue advice in relation to a Member of the Legislative Assembly within the
same political party as the Leader of the Opposition. The Integrity
Commissioner may provide the Leader of the Opposition with a relevant
document on his or her own motion under the same circumstances as the
Premier under clause 38 where the Member has been advised of the
identification of a significant issue and been provided with the opportunity
to resolve the issue.
Division 4 Protection
Clause 40 provides the conditions which must be met to attract protection
from liability in a civil proceeding or under an administrative process for
acts done pursuant to the commissioner's advice. If a designated person
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Integrity Bill 2009
asks for the Integrity Commissioner's advice on a conflict of interest issue,
discloses all relevant information and does an act to resolve the conflict
which is substantially in accordance with the commissioner's advice, the
person is not liable in a civil action or an administrative process for the act.
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.
Chapter 4 Regulation of lobbying
activities
Part 1 Core concepts
Clause 41 defines `lobbyist' and related concepts. Lobbyists are defined as
entities, or employees or contractors of those entities, carrying out lobbying
activities on behalf of a third party client.
The clause also excludes certain entities from the definition of lobbyist.
Certain entities and any employee, contractor or person otherwise engaged
by the following entities are not considered to be lobbyists: non-profit
entities; entities constituted to represent the interests of their own members
(such as employer groups, unions and professional bodies); trade
delegations visiting Queensland; and entities which conduct `incidental
lobbying' (activities incidental to the provision of another technical or
professional occupation such as architecture, engineering, legal practice or
accountancy). Non-profit entities such as charities, churches or
environmental societies which do not conduct activities for the profit or
gain of individual members, or any lobbyists engaged on behalf of such
entities, are not captured by the definition in the Bill. The legislation will
therefore not restrict non-profit entities from undertaking their activities in
pursuit of community goals. In addition, entities (and their employees)
which conduct lobbying activities for the purpose of representing the
entity's own interests are excluded from the definition of lobbyist.
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Clause 42 defines `lobbying activity' and `contact'. Lobbying activities
include contact with government representatives which aim to influence
State or local government decision-making. Activities such as contact with
a parliamentary committee, petitions community campaigns, statements
made in public forums or responses to requested submissions, information
or tenders are not within the parameters of the definition of lobbying
activities.
In addition, contact with the Premier, Ministers, Parliamentary Secretaries
or councillors in their capacity as local representatives on a constituency
matter is excluded from the definition of lobbying activity. The ability of
citizens to request that local representatives make representations their
behalf is a fundamental tenet of the democratic process, and the Bill does
not restrict such activity.
Likewise, the definition excludes activities of a personal or otherwise
non-business nature, or incidental meetings outside the control of the
government representative. It is recognised that social or unscheduled
contact may occur between government representatives and lobbyists and
the Bill does not regulate such activity. The clause defines `contact' to
include telephone, email and written contact in addition to face-to-face
meetings.
Clause 43 provides for the Lobbyists Register and the Lobbyists Code of
Conduct. Clause 96 provides transitional arrangements which continue
current listings in the administratively established Register of Lobbyists in
the Lobbyists Register established under clause 49 of the Bill.
Clause 44 defines `government representative', which includes the
Premier, Ministers, Parliamentary Secretaries, councillors (including
mayors), public sector officers and Ministerial and Parliamentary Secretary
staff members.
Clause 45 defines `former senior government representative', which
includes former Ministers, Parliamentary Secretaries, councillors
(including mayors), senior public sector officers (to the equivalent of chief
executives or senior executives) and Ministerial and Parliamentary
Secretary office staff members.
Clause 46 defines `councillor' as councillors of local government,
including mayors, within the meaning of the Local Government Act 2009.
Clause 98 provides transitional provisions in relation to the reference prior
to commencement of the Local Government Act 2009.
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Integrity Bill 2009
Clause 47 defines `public sector officer', which means chief executives or
employees of: departments; public service offices; local governments;
corporate entities under the Local Government Act 2009; the Parliamentary
Service; registries and administrative offices of courts or tribunals;
government owned corporations; or other entities assisted by public funds
and prescribed by regulation.
Part 2 Registration of lobbyists
Division 1 Interpretation
Clause 48 references the definitions of `listed person', `proposed listed
person' at clauses 49 and 53 respectively and defines `registrant' as an
entity registered in the Lobbyists Register.
Division 2 Register
Clause 49 requires that the Integrity Commissioner keep a Lobbyists
Register which is published on the commissioner's website. The Register
must include the name and business registration details for the lobbyist, the
names and roles of `listed persons' who carry out lobbying activities and
the names of each client which has engaged the lobbyist in the previous
year. The Register must also state whether listed persons are former senior
government representatives, and the date that they ceased to hold public
office.
Clause 50 requires registrants to notify the Integrity Commissioner of
changes to particulars listed on the Register within 10 business days of the
registrant becoming aware of the change. The commissioner must update
the register (where appropriate) with such changes.
Clause 51 requires registrants to provide the Integrity Commissioner with
annual confirmation of particulars listed on the Register by 31 July each
year. Registrants will be required to confirm that previous registration
details remain correct and submit new statutory declarations for all listed
persons.
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Integrity Bill 2009
Division 3 Registration
Clause 52 references the definitions of `accepted representations' at clause
58 and `show cause notice' and `show cause period' at clause 57.
Clause 53 allows any entity to apply for registration as a lobbyist, and
requires that applications be made to the Integrity Commissioner in an
approved form. The listed person may be required to disclose any relevant
criminal history, verified by statutory declaration. The Criminal Law
(Rehabilitation of Offenders) Act 1986 would apply to any disclosure of
criminal history. The clause also defines `dishonesty offence' and `relevant
criminal history'.
Clause 54 provides that before deciding an application for registration, the
Integrity Commissioner may require the applicant to provide further
information in not less than five business days. Such information may need
to be verified by statutory declaration. Failure by the applicant to comply
is deemed to be a withdrawal of the application.
Clause 55 sets out grounds on which an application for registration may be
refused. The grounds of refusal are that the application is false or
misleading, obligations under the Bill or the Lobbyists Code of Conduct
have not been complied with, or for a reason as otherwise determined by
the Integrity Commissioner. In making such a determination, the
commissioner may have regard to facts such as exhibited standards of
ethical behaviour, or if a lobbyist has been removed from the Register of
Lobbyists of the Commonwealth or another state, the facts or
circumstances resulting in the removal.
Clause 56 requires the Integrity Commissioner to consider and decide
applications as soon as practicable. If the Integrity Commissioner decides
to register the lobbyist the commissioner must advise the lobbyist and
update the Register with their details. The Integrity Commissioner can
alternatively issue the applicant with a notice requiring the applicant to
show why their application should not be refused. The show cause process
allows for natural justice for an applicant prior to any decision to refuse an
application.
Clause 57 provides that, prior to refusing to register an applicant, the
Integrity Commissioner must give the applicant a show cause notice stating
the grounds upon which the commissioner intends to refuse registration,
and the facts and circumstances establishing the ground. The registrant
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Integrity Bill 2009
must be invited to show why registration should not be refused in a period
of not less than five business days after being given the notice.
Clause 58 authorises the applicant to make written representations to the
Integrity Commissioner and requires the commissioner to consider all
representations made by the applicant about the show cause notice.
Clause 59 provides that, if the Integrity Commissioner decides after
receiving representations, that no grounds to refuse registration exist, the
commissioner must register the applicant.
Clause 60 sets out the process where the Integrity Commissioner considers
that grounds for refusal of the registration still exist after consideration of
representations, or where no representations have been received. The
registrant must be notified of the Integrity Commissioner's decision to
refuse registration as soon as practicable.
Division 4 Cancellation of registration
Clause 61 references the definitions of `accepted representations' at clause
64 and `show cause notice' and `show cause period' and clause 63.
Clause 62 sets out grounds on which an registrant's registration may be
cancelled by the Integrity Commissioner. The grounds for cancellation are
the same as the grounds for refusal, namely that the registration was on the
basis of a false or misleading application, obligations under the Bill or the
Lobbyists Code of Conduct have not been complied with, or for a reason as
otherwise determined by the Integrity Commissioner. In making such a
determination, the commissioner may have regard to facts such as
exhibited standards of ethical behaviour, or if a lobbyist has been removed
from the Register of Lobbyists of the Commonwealth or another state, the
facts or circumstances resulting in the removal.
Clause 63 provides that if the Integrity Commissioner believes a ground
exists to cancel registration, the commissioner must give the applicant a
show cause notice stating the grounds upon which the commissioner
intends to cancel the registration, and the facts and circumstances
establishing the ground. The registrant must be invited to show why
registration should not be cancelled in a period of not less than five
business days after being given the notice.
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Integrity Bill 2009
Clause 64 authorises the applicant to make written representations to the
Integrity Commissioner and requires the commissioner to consider all
representations made by the applicant about the show cause notice.
Clause 65 provides that, if the Integrity Commissioner decides after
receiving representations, that no grounds to cancel registration exist, the
commissioner must not take any further action and advise the registrant as
such.
Clause 66 sets out the process where the Integrity Commissioner considers
that a ground for cancellation of the registration still exists after
consideration of representations, or where no representations have been
received. The commissioner may cancel the registration, remove the
registrant's details from the Register and must notify the registrant of the
decision as soon as practicable.
Part 3 Limitations on lobbying activities
Clause 67 references the definition of `listed person' in clause 49 and
clarifies that in chapter 4, part 3 a lobbyist includes a listed person for the
lobbyist.
Clause 68 establishes that the Integrity Commissioner may, after
consultation with the parliamentary committee approve a Lobbyists Code
of Conduct which must be published on the commissioner's website. This
clause defines the purpose of a Lobbyists Code of Conduct as being to
provide standards of conduct for lobbyists in their dealings with
government representatives. Lobbyists must comply with the code of
conduct and non-compliance would provide a ground for refusal or
cancellation of registration by the Integrity Commissioner.
Clause 69 prohibits an entity (other than a lobbyist) that has engaged a
lobbyist to undertake a lobbying activity from giving or agreeing to give the
lobbyist or related person a success fee. A lobbyist must not agree for the
lobbyist or related person to receive a success fee for lobbying activities
conducted by or for the lobbyist. The maximum penalty for both offences
is 200 penalty units. Any success fee paid is forfeited to the State upon
conviction but must be returned if the conviction is quashed. The clause
defines `success fee' as money or other reward which is contingent on the
outcome of lobbying activities. As the clause applies to entities other than
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Integrity Bill 2009
lobbyists, this clause will not prevent lobbying firms from paying
performance bonuses or providing other rewards to its employees in
recognition of successful performance of services.
Clause 70 prohibits former senior government representatives from
conducting related lobbying activities for two years from the date they
ceased to hold public office. A government representative must not
knowingly permit a former senior government representative of less than
two years to undertake related lobbying activities. The clause defines
`related lobbying activity' as activities which relate to the former senior
government representative's official dealings for two years prior to ceasing
to hold public office. This is to ensure that former senior government
representatives are unable to gain inappropriate personal benefit by using
information gained through previous employment in areas for which they
previously had some official responsibility.
Clause 71 prohibits an entity that is not a registered lobbyist from
conducting lobbying activities, and government representatives from
knowingly permitting an entity that is not a registered lobbyist to conduct a
lobbying activity. Requirements will apply to both lobbyists to ensure
registration prior to conducting lobbying activities and to government
representatives to check the publicly available register to ensure
registration of lobbyists conducting lobbying activities. Non-compliance
with these requirements may form a basis for refusal of registration for
lobbyists, or disciplinary action for certain government representatives.
Clause 72 makes clear that a government representative is not obliged to
have contact with a particular lobbyist or lobbyists in general, and that the
Bill does not limit lobbyists from having contact with government
representatives if a law requires the representative to consider views put
forward by the lobbyist.
Chapter 5 Administrative provisions for
integrity commissioner
Clause 73 provides that the Integrity Commissioner must be appointed by
the Governor in Council under this Bill and not the Public Service Act
2008.
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Integrity Bill 2009
Clause 74 sets out the process for appointment of a person as Integrity
Commissioner. An appointment may only be made after the Minister has
advertised the position nationally, and consulted with the parliamentary
committee about the selection process and the successful applicant's
appointment. This does not apply where the Integrity Commissioner is
being reappointed. A person must have suitable knowledge, experience,
personal qualities and standing within the community to qualify for
appointment as Integrity Commissioner.
Clause 75 provides for the Integrity Commissioner to hold office for a term
not longer than five years, but limits the total continuous term of
appointment of a commissioner to ten years.
Clause 76 requires the Integrity Commissioner to be paid the remuneration
and allowances decided by the Governor in Council. The Governor in
Council decides the terms and conditions of appointment where not
otherwise provided by the Bill.
Clause 77 allows the Minister to grant the Integrity Commissioner leave of
absence.
Clause 78 provides for the Integrity Commissioner to resign by notice in
writing to the Minister. The notice must be provided to the Governor, and a
copy must be provided to the Speaker and the chairperson of the
parliamentary committee as soon as practicable after the resignation is
tendered to the Minister. However, failure to comply with this requirement
does not affect the resignation.
Clause 79 requires the Integrity Commissioner, as an independent officer
of the Parliament, to make an oath or affirmation administered by the
Speaker prior to performing the duties of office.
Clause 80 introduces a new requirement for the Integrity Commissioner to
provide a statement of interests to the Minister and parliamentary
committee in accordance with requirements of the Public Service Act 2008,
section 101(3). The statement must be provided within one month of
appointment and a revised statement must be provided as soon as possible
after relevant changes to the commissioner's interests. The Acts
Interpretation Act 1954, section 36 definition of `interest' does not apply to
a reference to an interest.
Clause 81 provides a further new requirement for the Integrity
Commissioner to disclose to the Minister and parliamentary committee if
he or she has an interest which conflicts with the discharge of the
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Integrity Bill 2009
commissioner's responsibilities. The commissioner must not take action or
further action about the matter unless authorised by the Minister. The Acts
Interpretation Act 1954, section 36 definition of `interest' does not apply to
a reference to an interest.
Clause 82 sets out a new process for removal from office of the Integrity
Commissioner, on grounds of incapacity, incompetence or misconduct or
conviction of an indictable offence. The commissioner may only be
removed from office by the Governor upon address moved by the Minister
in the Legislative Assembly. The Minister must first have given the
commissioner reasons for the motion, have tabled the commissioner's
response in the Assembly and consulted and gained unanimous or
bipartisan support for the motion from the parliamentary committee.
Clause 83 provides for the delegation of the Integrity Commissioner's
functions in relation to the Lobbyists Register under chapter 4 to an
appropriate qualified public service officer.
Clause 84 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. To remove any doubt, a former Integrity Commissioner may be
appointed to act as Integrity Commissioner.
Clause 85 requires the Integrity Commissioner to issue the Speaker and
parliamentary committee with a written report about the performance of
the commissioner's functions as soon as practicable after the end of each
financial year. The Bill introduces a new function for the commissioner to
report on the compliance of chief executives with the requirement to lodge
statements of interest under the Public Service Act 2008. The report on
chief executive compliance with this requirement may identify a chief
executive; however the report must not contain information likely to
identify individuals who requested the commissioner's advice on an ethics
or integrity issue or about whom advice was requested. The Speaker must
table the report in the Legislative Assembly the next sitting day after it is
given to the Speaker.
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Integrity Bill 2009
Chapter 6 Strategic reviews of integrity
commissioner's functions
Clause 86 contains provision for the Governor in Council to appoint and
decide terms of reference for an appropriately qualified person to undertake
a strategic review of the Integrity Commissioner's functions. The first
review must be conducted within four years of the commencement of this
clause, and further reviews must be undertaken at least once every five
years. The Minister must consult with both the Integrity Commissioner
and the parliamentary committee on the appointment of the reviewer and
the terms of reference.
Clause 87 establishes that, in conducting the strategic review, the reviewer
has the powers that an authorised auditor has for an audit of an entity under
the Auditor-General Act 2009.
Clause 88 provides for the reviewer to give a copy of a proposed report on
the review to the Minister and the Integrity Commissioner. The Minister
and the Integrity Commissioner may, within 15 business days provide the
reviewer with written comments on a proposed report which must be
incorporated into the final report. The Minister must table the report in the
Legislative Assembly within three sitting days after the Minister receives
the report.
Chapter 7 Miscellaneous provisions
Clause 89 sets out the functions of the parliamentary committee. The Bill
enhances the functions and the independence of the Integrity
Commissioner, including providing for the commissioner to report to
parliament through a parliamentary committee. The renamed Integrity,
Ethics and Parliamentary Privileges Committee will oversight the
commissioner's performance and functions and will have responsibilities
including reporting to the Legislative Assembly on any matter concerning
the commissioner, examining each annual report and strategic review
report and reporting to the Assembly on any changes considered desirable
for the more effective operation of the Act.
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Integrity Bill 2009
Clause 90 allows the Integrity Commissioner to approve forms for use
under the Bill.
Clause 91 provides that the Governor in Council may make regulations
under the Act.
Chapter 8 Transitional provisions
Clause 92 provides for interpretation of references to the Public Sector
Ethics Act 1994 and that, if the context permits, references to that Act may
be taken as a reference to this Act. The provision applies only to the extent
of provisions of part 7 of the Public Sector Ethics Act 1994 regarding the
Integrity Commissioner which will be re-enacted through the Bill.
Clause 93 continues the current appointment of the Integrity Commissioner
under the Public Sector Ethics Act 1994 and provides that the oath
requirements have been taken to be satisfied and that a statement of
interests must be provided within one month of commencement of the
clause.
Clause 94 continues any nominations of persons or classes of persons as
`designated persons', in effect under the Public Sector Ethics Act 1994
through the Bill.
Clause 95 allows the Integrity Commissioner to continue to consider any
requests for advice received under the Public Sector Ethics Act 1994 under
the Bill.
Clause 96 continues current listings in the Register of Lobbyists
administratively established under the Queensland Contact with Lobbyists
Code in the Register established under clause 49 of the Bill. All lobbyists
on the Register will be taken to be listed on the Register under the Bill.
Clause 97 provides that failure to comply with the Queensland Contact
with Lobbyists Code can be taken as failure to comply with the Lobbyists
Code of Conduct to be approved under the Bill.
Clause 98 provides for interpretation of references to the Local
Government Act 2009 for the period prior to commencement of that Act.
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Integrity Bill 2009
Until the Local Government Act 2009 commences, the reference can be
taken to be a reference to the Local Government Act 1993.
Clause 99 provides for interpretation of references to the Sustainable
Planning Act 2009 for the period prior to commencement of that Act. Until
the Sustainable Planning Act 2009 commences, the reference can be taken
to be a reference to the Integrated Planning Act 1997.
Chapter 9 Amendments
Part 1 Amendment of this Act
Clause 100 provides that chapter 9, part 1 amends the Bill.
Clause 101 amends the long title of the Bill to omit the reference to related
amendments of other Acts.
Part 2 Amendment of Government
Owned Corporations Act 1993
Clause 102 provides that chapter 9, part 2 amends the Government Owned
Corporations Act 1993.
Clause 103 replaces section 156 of the Government Owned Corporations
Act 1993 to qualify the exclusion of GOCs from the definition of `unit of
public administration' under the Crime and Misconduct Act 2001. The
clause deals with situations in which the chief executive officer of a GOC
suspects that a complaint, or information or a matter relating to the GOC
involves, or may involve, something that would be official misconduct
under the Crime and Misconduct Act 2001 if the GOC were a unit of public
administration. The clause provides that in these circumstances the chief
executive officer must notify the CMC of the complaint under section 38 of
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Integrity Bill 2009
the Crime and Misconduct Act 2001 as if the GOC were a unit of public
administration and the chief executive officer were a public official.
The clause also deals with situations in which the chief executive of the
department in which the Government Owned Corporations Act 1993 is
administered reasonably suspects that a complaint, or information or matter
relating to a GOC involves, or may involve, something that would be
official misconduct under the Crime and Misconduct Act 2001 if the GOC
were a unit of public administration and the chief executive officer of the
GOC has not notified the CMC of the complaint. In such situations, the
chief executive must notify the Crime and Misconduct Commissions of the
complaint under the Crime and Misconduct Act 2001, section 38 as if the
GOC were a unit of public administration and the chief executive were a
public official.
The clause provides that sections 39 and sections 40 of Crime and
Misconduct Act 2001 will apply in relation to the above mentioned
complaints.
Further, upon the notifications mentioned in this clause, the Crime and
Misconduct Act 2001 will apply in relation to the GOC for the purposes of
the complaint as if the GOC were a unit of public administration and the
chief executive of the department in which the Government Owned
Corporations Act 1993 is administered were a public official or relevant
public official.
This clause does not apply to a declared entity under the Infrastructure
Investment (Asset Restructuring and Disposal) Act 2009.
Clause 104 replaces schedule 4, section 156 of the Government Owned
Corporations Act 1993 to qualify the exclusion from the definition of `unit
of public administration' under the Crime and Misconduct Act 2001 for
GOC subsidiaries. The provision operates on the same basis as the
amendment to the Government Owned Corporations Act 1993, section 156
outlined above.
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Integrity Bill 2009
Part 3 Amendment of Parliament of
Queensland Act 2001
Clause 105 provides that chapter 9, part 3 amends the Parliament of
Queensland Act 2001.
Clause 106 amends section 78 of the Parliament of Queensland Act 2001 to
include an additional area of responsibility for the statutory committees of
the Legislative Assembly.
Clause 107 amends section 80 of the Parliament of Queensland Act 2001 to
rename the Members' Ethics and Parliamentary Privileges Committee as
the Integrity, Ethics and Parliamentary Privileges Committee.
Clause 108 replaces the heading for chapter 5, part 4, division 2 of the
Parliament of Queensland Act 2001 to reflect the new name of the
parliamentary committee.
Clause 109 amends section 90 of the Parliament of Queensland Act 2001 to
reflect the additional area of responsibility for the Integrity, Ethics and
Parliamentary Privileges Committee of the integrity of public institutions.
The clause inserts a new section 90A specifying that the committee's area
of responsibility about the integrity of public institutions involves its
functions under the Bill.
Part 4 Amendment of Public Service
Act 2008
Clause 110 provides that chapter 9, part 4 amends the Public Service Act
2008.
Clause 111 amends section 101 of the Public Service Act 2008 to require
chief executives to provide a copy of their statement of interests and written
confirmation that the statement has been provided to their departmental
Minister, to the Integrity Commissioner and the chief executive of the
Public Service Commission. The Integrity Commissioner will report on
compliance with the requirement under the Public Service Act 2008 to
lodge the statement of interests but will not investigate or further consider
interests declared in the statement.
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Integrity Bill 2009
Clause 112 inserts a new chapter 9, part 4 into the Public Service Act 2008
which provides that the chief executive of the Public Service Commission
must provide the copies of any chief executive statements of interests to the
Integrity Commissioner.
Clause 113 amends schedule 2 of the Public Service Act 2008 to omit the
exclusion of the Integrity Commissioner from the definition of `term
appointee'. Under clause 82 of the Bill, the Integrity Commissioner may
now only be removed from office on address of the Governor to the
Legislative Assembly. As section 140(3)(a) of the Public Service Act 2008
provides that the holder of an office who may or must be removed from
office following an address or resolution of the Legislative Assembly is not
a term appointee, it is no longer necessary to declare the Integrity
Commissioner as being excluded from the definition of term appointee in
schedule 2 of the Public Service Act 2008.
Clause 114 amends the definition of Integrity Commissioner in schedule 4
of the Public Service Act 2008 to reflect the title of the new Act under
which the Integrity Commissioner is established.
Part 5 Amendment of other Acts
Clause 115 provides that schedule 1 amends the Acts it mentions.
Schedule 1 Amendments
The Local Government Act 2009 is amended to omit references to the
Queensland Contact with Lobbyists Code.
The Public Sector Ethics Act 1994 is amended to omit references to the
Integrity Commissioner and insert a reference that the Acts Interpretation
Act 1954, section 36 definition of `interest' does not apply to a reference to
interests.
The Right to Information Act 2009 is amended to update references to the
exclusion from that Act of documents created or received by the Integrity
Commissioner. In order to preserve confidentiality of the commissioner's
advice, all documents created or received by the Integrity Commissioner
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Integrity Bill 2009
for chapter 3 of the Bill, including the new category of advice on interests
issues for Members of the Legislative Assembly, will be excluded from the
operation of the Right to Information Act 2009.
Schedule 2 Dictionary
Schedule 2 provides a dictionary to define key terms in the Bill.
© State of Queensland 2009
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