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Public sector integrity under the spotlight

11 November 2020

#Government, #Dispute Resolution & Litigation

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Public sector integrity under the spotlight

2020 has been a remarkable year for many reasons. Among the news on COVID-19 case numbers and ever-changing restrictions, a recurring theme in parliaments across the nation and in the media have been issues of integrity. These issues have been highlighted at all levels of government and in the broader public sector.

Whether it is that public officers and officials have not conducted themselves in a manner that meet the required standards or whether their conduct has simply not met ‘the pub test’, it is a reminder to all public sector employees and officers and those that interact and supply to the public sector about the spotlight and scrutiny that will be placed on their conduct. It is anticipated that this focus on integrity and the public scrutiny of such matters will likely continue into 2021. 

In this article, we highlight some of the recent legislative proposals and changes that have been made at a Commonwealth and a Queensland Government level. We also provide a list of practical questions to guide those operating in the private or public sector in making decisions or undertaking a course of conduct.

Commonwealth Integrity Commission announced

The federal government, in a long-awaited move, has recently announced that it is committed to establishing a Commonwealth Integrity Commission (CIC), designed to strengthen and enhance the integrity of the Commonwealth public service.

The federal government has released a consultation draft of the legislation setting out the scope of the CIC’s jurisdiction, powers and the proposed offences for corrupt conduct. 

It is proposed that the new CIC will have greater investigatory powers than a royal commission and will include the power to:

  • compel people to give sworn evidence at hearings, with a maximum penalty of two years imprisonment for not complying
  • compel people to provide information and produce documents (even if the information would incriminate the person), with a maximum penalty of two years imprisonment for not complying
  • search people and their houses, or seize property (under warrant)
  • arrest people
  • tap phones and use other surveillance devices to investigate them
  • confiscate people’s passports by court order.

It is proposed that the CIC will have broad-ranging jurisdiction over Commonwealth regulated entities and their staff, including:

  • law enforcement agencies
  • public sector agencies
  • parliamentarians and their staff
  • staff of federal judicial officers (and subject to consultation, potentially judicial officers themselves)
  • certain higher education providers (as defined under the Tertiary Education Quality and Standards Agency Act 2011 (Cth) for example, the Australian National University) and research bodies that receive Commonwealth funding. 

It is also proposed that the reach of the CIC will not be confined to these entities and their staff, but also seek to capture the conduct of those who have contracted with these entities including:

  • persons contractually engaged to provide services to, or for, or on behalf of, or under a contract with, the Commonwealth, a law enforcement agency, or a public sector agency
  • persons contractually engaged to provide services for the purposes (whether direct or indirect) of the Commonwealth contract. 

It is proposed that for private sector companies and individuals (who are not considered to be the providers of Commonwealth services) they may also be compelled to provide evidence in connection with any investigation. 

Next steps for the proposed CIC

The ultimate jurisdiction and powers of the CIC will be the subject of consultation which is due to run from November 2020 to March 2021. 

For more information, the Attorney General’s Department has produced a fact sheet which can be found here and the consultation draft can be read here

Recent changes in Queensland

In June 2020, the Queensland Government passed legislation that introduced:

  • as part of their rolling reform agenda, further reforms for local government to improve transparency, integrity and consistency in the local government system, decision making and local government elections
  • reforms to improve the integrity and accountability of Ministers.

In the case of local government, these reforms, which came into effect on 12 October 2020, included:

  • new register of interest requirements
  • new and clarified conflict of interest requirements
  • new requirements for councillor advisors and counsellors administrate support staff
  • provisions relating to the dissolution of a local government or interim administrators
  • stopping Mayors from giving directions about the appointment or discipline of local government employees
  • changes for filling councillor and Mayor vacancies. 

For more information, the Department of Local Government, Racing and Multicultural Affairs has produced facts sheets for councillors, councils and council officers which are available here

In the case of Ministers, these reforms, which came into effect on 7 September 2020, amended the Integrity Act 2009 (Qld) and the Parliament of Queensland Act 2001 (Qld) to introduce two new criminal offences to improve the integrity and accountability of Ministers in line with recommendations made by the Queensland Crime and Corruption Commission. The two criminal offences can occur where:

  • a Minister fails to disclose a conflict of interest with the intent to dishonestly gain a benefit to themselves or another person, or cause detriment to another person
  • a Minister fails to comply with their obligations to record the interests on the Register of Members’ Interest with the dishonest intent to obtain a benefit for themselves or another person, or cause detriment to another. 

The purpose is to capture a Minister’s responsibility to bring all conflicts of interest to the attention of the relevant body or persons (Cabinet, a Cabinet Committee or the Premier), even if the conflict arises out of an interest already recorded in the Register of Members’ Interest.

These new offences are in addition to the significant changes to the definition of corrupt conduct that were introduced into the Crime and Corruption Act 2001 (Qld) in 2019 which broadened the definition to capture behaviours that, while not technically within the public sector, could corrupt its functions. Previously the legislation focused on the conduct of public sector employees whereas now people outside the public sector who can exploit, adversely influence or corrupt public sector processes, leading the community to lose confidence in government administration are covered by the definition. 

Takeaways

With the increasing spotlight on integrity issues at all levels of government and legislative reforms to continue into 2021 with the likely establishment of the CIC, it is important for those who operate in or with the public service to consider whether their decisions or conduct are in accordance with the standards that have been set and whether it meets ‘the pub test’. When making decisions or considering a course of conduct, you can ask yourself the following questions: 

  • Is it legal?
    • do you require legal advice?
    • is there any legal constraint on how you may proceed?
    • do you have the power/ authority to proceed?
  • Is it informed?
    • is it aligned with your organisational values?
    • is it in compliance with any code of conduct that applies to you?
    • have you discussed it with a colleague?
    • have you been transparent?
  • Is it fair?
    • what would a reasonable person in your position think of what you are proposing to do?
    • do you gain directly or indirectly in any way from the decision or conduct?
    • do you have any personal interest in the decision?
    • would your decision impact on others?
  • Is it ethical?
    • taking it all into account, is it an ethical choice to make or conduct for you to be engaged in?
    • does it ‘pass the pub test’?

If you cannot positively respond ‘yes’ to all of these questions, then it will not be reasonable for you to proceed with the decision or the proposed conduct.

Author: Joanne Jary

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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