Publications

First Annual Report to the Premier

by the

Queensland Integrity Commissioner

June 2001

Executive Summary
1. Creation of Office
2. Appointment of the Integrity Commissioner
3. Establishment of the Office
4. The unique role of the Queensland Integrity Commissioner
5. Public Sector Ethics Act 1994

(a) Ethics principles
(b) Public officials
(c) Public sector entity
(d) Commission, authority, office, corporation or instrumentality
(e) Government Owned Corporations (GOC)
(f) Codes of conduct
(g) Relevance of codes to Integrity Commissioner

6. Conflict of interest

(a) Official duties
(b) Personal interest

(i) An interest in property
(ii) Hospitality and gifts
(iii) Outside employment
(iv) Relatives and friends
(v) Personal conviction
(vi) Confidential information

7. "Designated persons"
8. Who may seek advice?
9. Issues dealt with
10. Other activities
11. Published comments

(a) The people who may seek advice
(b) Limited nature of role
(c) Lack of investigative powers
(d) Lack of enforcement powers
(e) Advice not available to opposition members of Parliament
(f) No report to Parliament
(g) Vulnerability of the Integrity Commissioner
(h) Limited access by senior officers
(i) Premier’s access to confidential information
(j) Absence of public comment

12. Finance and administration
13. Future directions 20
Attachment A: Financial Statement
Attachment B: Summary of Requests

Executive Summary

The Queensland Integrity Commissioner is appointed under the Public Sector Ethics Act 1994. The first Integrity Commissioner was appointed in August 2000 and this report is in general terms because the Act provides that it must not contain information which identifies individuals who sought the Commissioner’s advice about a conflict of interest issue.

The Public Sector Ethics Act 1994 defines a "conflict of interest issue" involving a person as "an issue about a conflict between the person’s personal interests and the person’s official duties." That person’s official duties are found in the Public Sector Ethics Act 1994 and the codes of conduct approved under the Act, the Public Service Act 1996, the Financial Management Standard 1997, and other legislation.

The Public Sector Ethics Act 1994 defines the people who may seek advice from the Integrity Commissioner. There are over 5000 such people who are the senior decision-makers in the public sector, including the Premier and Ministers.

Advice is sought and given confidentially before decisions involving a conflict of interest issue are made. As the legislation and the codes of conduct give many examples of how a conflict of interest should be resolved in the public interest, it cannot be expected that a large number of requests for advice will be received. During the year seven requests were received from the Premier and Ministers, six from Directors-General and one other person.

In addition, the Premier may seek advice on issues concerning ethics and integrity, including standard setting for issues concerning ethics and integrity. One such request was made.

The third responsibility of the Integrity Commissioner is to contribute to public understanding of public integrity standards by contributing to public discussion of policy and practice relevant to the Integrity Commissioner’s functions. Most of my time over the past ten months has been taken with this responsibility. A website www.integrity.qld.gov.au has been established, and papers and speeches I have given are on that site, as well as the Public Sector Ethics Act 1994. I have made personal contact with Ministers and chief executive officers of all departments and most of the heads of public service offices. I have addressed groups of people within and outside the public sector.

Over the next twelve months a careful analysis of the codes of conduct will be undertaken. Many of these are presently being revised by the departments. Also attention will be given to the way conflict of interest issues are dealt with in Government Owned Corporations, statutory bodies and controlled entities.

1. Creation of Office

The office of Queensland Integrity Commissioner was created by the 1999 Amendment to the Public Sector Ethics Act 1994 which added part 7 to that Act. The purpose of part 7 is to help Ministers and others to avoid conflicts of interest, and in so doing to encourage confidence in public institutions (s.25).

The word "avoid" is significant because it implies that to fulfil that purpose, Ministers and others will use the provisions of part 7 before relevant decisions are made. These provisions centre upon the appointment of the Integrity Commissioner whose functions are:

to give advice to designated persons about conflict of interest issues as provided under division 5 (of part 7);
to give advice to the Premier, if the Premier asks, on issues concerning ethics and integrity, including standard setting for issues concerning ethics and integrity;
to contribute to public understanding of public integrity standards by contributing to public discussion of policy and practice relevant to the Integrity Commissioner’s functions.

(s.28)

The Integrity Commissioner is appointed by the Governor in Council for a period not longer than 5 years on terms decided by the Governor in Council. A person is qualified for appointment as the Integrity Commissioner if the person has knowledge, experience, personal qualities and standing within the community, suitable to the office (ss.37, 38). The Governor in Council may terminate the appointment if the Integrity Commissioner:

can not satisfactorily perform the Integrity Commissioner’s duties; or
is convicted of an indictable offence; or
is guilty of misconduct of a kind that could warrant dismissal from the public service if the Integrity Commissioner were a public service officer; or
is absent, without the Minister’s leave and without reasonable cause, for 14 consecutive days or 28 days in any year

(s.41)

The Integrity Commissioner must, as soon as practicable after the end of each financial year, give the Premier a written report about the performance of the Commissioner’s functions for the financial year. The report must be in general terms and must not contain information likely to identify individuals who sought the Commissioner’s advice about a conflict of interest issue (s.43).

2. Appointment of the Integrity Commissioner

After the legislation was passed in November 1999, advertisements inviting applications for the Office were placed. At that time, I was serving as Central Judge of the Supreme Court. After I retired as a Judge on 19 May 2000, I was approached by a member of the Appointments Committee to consider the position. I was interviewed by the Committee in June 2000 and shortly afterwards left for an overseas holiday. Upon my return in August, the appointment was announced and I took office on 24 August 2000 for three years. The appointment is part-time for two days each week.

3. Establishment of the Office

Although the Integrity Commissioner is appointed on a part-time basis, there needs to be a point of contact for people requesting advice. This requires both a physical location and a person. The location that has been adopted is on the first floor of Federation House, 95 William Street, Brisbane. This has the advantage of being within walking distance of most of the departmental offices, but separate from all of them. The records are kept there by a personal assistant. It is obvious that a person employed for two days a week, and who is mainly engaged in reading and writing, may not keep a personal assistant occupied full time. Consequently my personal assistant also provides assistance to the ethics unit of the Office of Public Service Merit and Equity (OPSME). Up to 75 per cent of the personal assistant’s time is available to the ethics unit.

I live in Rockhampton and use accommodation in the office of the Department of Premier and Cabinet. This provides an electronic link with the office in Federation House. Also, when I am not in Brisbane, my personal assistant transmits to me by facsimile, all requests for advice, either to my home or to the Rockhampton office. This allows me to deal with matters promptly. Requests for advice do not always arrive on Tuesday or Wednesday, the two working days nominated by my appointment. Some flexibility has to be allowed.

In the first four months of my appointment, I came to Brisbane on a regular basis, usually fortnightly. Over this period I paid courtesy calls on the Premier, the Speaker, all Ministers, Parliamentary Secretaries, the Leader and Deputy Leader of the Opposition, chief executive officers of departments and other heads of government entities. When that round of visits was completed, I reduced the frequency of visits to Brisbane. Following the general election, I paid courtesy calls on newly appointed Ministers and Parliamentary Secretaries. On 6 March 2001 I spoke to the newly elected Members of the Legislative Assembly.

The conditions of my employment provide for travel and accommodation allowances. Travel and accommodation is booked through AMEX who hold the contract for this. On some occasions I flew to and from Brisbane, using ‘Senior’ rates when available. On other occasions I have driven to and from Brisbane. When this has been for my convenience I have not claimed petrol expenses. I have never claimed a mileage rate for the use of my car. In May and June 2001 I have had to reside temporarily in Brisbane to receive medical treatment. During that period I worked in the Brisbane office in the mornings. There has been no claim for travel or accommodation allowances since 11 May 2001.

On 6 April 2001 our website, www.integrity.qld.gov.au was launched. This provides information about the Office.

4. The unique role of the Queensland Integrity Commissioner

Other places, particularly in Canada, have officials who bear the title of Integrity Commissioner. However, the role that such officials have is quite different from that of the Queensland Integrity Commissioner.

Commonly, such officials oversee the register of interests of members of Parliament. In Queensland, that function is discharged by the Clerk of Parliament.

Such officials also have an investigative role. In Queensland that function is discharged by the Criminal Justice Commission.

Such officials also have a disciplinary role. In Queensland, discipline of members of Parliament is a matter for the Parliament.

The Queensland Integrity Commissioner has the limited role of providing advice about conflict of interest issues. However, the people to whom such advice can be given, and about whom such advice can be given, serve in a much wider band of the public sector than in other places. This will be discussed in part 7 of this report.

Consequently, although much information is available on the Internet about Integrity Commissioners, this information may have limited relevance here. In Queensland, the nature, authority and function of the office of the Integrity Commissioner is found only in the Public Sector Ethics Act 1994. (As an aside, our method of identifying legislation is to refer to the year in which the Act was first passed, and that reference includes all amendments made up to the present).

5. Public Sector Ethics Act 1994

(a) Ethics principles

The Act declares five ethics principles for public officials:

Respect for the law and the system of government
Respect for persons
Integrity
Diligence
Economy and efficiency (s.4)

(b) Public officials

The Act then expands these principles into ethics obligations for public officials (part 3). It defines "public officials" as:

"(a) an officer or employee of a public sector entity; or

(b) a constituent member of a public sector entity, whether holding office by election or selection."

Judicial officers and local government councillors are excluded (schedule). It should be noted that the definition is not limited to officers or employees. It includes constituent members of public sector entities, whether holding office by election or selection.

(c) Public sector entity

The schedule to the Act defines "public sector entity" as:

"…any of the following:

(a) the Parliamentary Service;
(b) the administrative office of a court or tribunal;
(c) a department;
(d) a local government;
(e) a university, university college, TAFE institute or agricultural college;
(f) a commission, authority, office, corporation or instrumentality established under an Act or under State or local government authorisation for a public, State or local government purpose;
(g) an entity, prescribed by regulation, that is assisted by public funds;

but does not include any of the following –

(h) a GOC (a Government Owned Corporation);
(ha) a corporatised corporation (a corporation created by a local authority);
(i) the following entities under, or within the meaning of, the Education (General Provisions) Act 1989-

a parents and citizens association
a school that is not a State school;
an advisory committee; (See Education (General Provisions) Act 1989, s. 12.)
an international educational institution; (See Education (General Provisions) Act 1989, s. 144.)

(j) an entity prescribed by regulation."

(d) Commission, authority, office, corporation or instrumentality

The first five categories in the definition of public sector entity are clearly identified. The sixth category needs some examination. It reads:

"A commission, authority, office, corporation or instrumentality established under an Act or under State or local government authorisation for a public, State or local government purpose."

The words "commission", "authority" and "corporation" are used often enough to identify bodies that carry out a specific purpose, for example, Criminal Justice Commission, Beach Protection Authority, Queensland Investment Corporation. The word "office" is not used in its popular sense of designating a room or suite of rooms. It is used to identify a person or group of people who carry out a specific task, for example, the Audit Office. "Instrumentality" is intended to cover the various other bodies that are established under State or local government authorisation for a public, State or local government purpose. They are instruments for carrying out that purpose whether they are called branches, councils, panels, tribunals, teams, funds, groups, committees, forums or trusts.

I have not yet been able to obtain one list that identifies all these bodies. The State Affairs Branch of the Department of Premier and Cabinet maintains a list of bodies established under State authorisation. It presently lists 643 bodies. Audit Report

No. 3, 2000-2001 identifies additional bodies established under State authorisation.

It follows that the ethics obligations in the Public Sector Ethics Act apply to all people engaged in a broad band of public activities, with the exceptions that have been noted.

(e) Government Owned Corporations (GOC)

A GOC is a government body corporate (company), declared by regulation to be a GOC (Government Owned Corporations’ Act 1993, s.6).

While there are many companies established under State authorisation for a State purpose, there are nineteen GOCs listed in the Audit Report No. 3, 2000-2001. Seven are in the energy sector, one operates the Brisbane Markets, eight are port authorities, and the others are Queensland Rail, Golden Casket Lottery Corporation Limited and Queensland Investment Corporation. These corporations are excluded from the definition of public sector entity, and consequently their employees and constituent (board) members are not subject to the ethics obligations found in the Public Sector Ethics Act.

However, entities as diverse as The City of Brisbane Airport Corporation Pty Ltd, companies established by universities to provide professional services to the community, Queensland Events Corporation Pty Ltd and Logan Motorway Company Limited fall within the definition of public sector entity. Consequently, their employees and constituent (board) members are subject to the ethics obligations found in the Public Sector Ethics Act.

(f) Codes of conduct

The chief executive officer of each public sector entity must ensure that a code of conduct is prepared for the entity (s.15).

The definition of a chief executive officer (of a public sector entity) in the Act is:

"(a) for the Parliamentary Service – the clerk of the Parliament; or

(b) for the administrative office of a court or tribunal – the chief executive of the department in which is administered the legislation under which the court or tribunal is established; or

(d) for a local government – the local government’s chief executive officer; or

(e) for a university or university college - the vice-chancellor of the university or university college; or

(f) for another public sector entity – the person prescribed by regulation or, if no person is prescribed, the person responsible to the Minister for the management of the entity."

Once a code of conduct is prepared it is approved by a responsible authority. For the Parliamentary Service that person is the Speaker, for a university or university college, the university council, for a local government, the local government (council), and in other cases the responsible Minister. The code of conduct when approved is a public document which may be inspected by any member of the public (s.20).

The codes of conduct apply to the public officials performing their official functions, and provide standards of conduct for them consistent with the ethics obligations (s.12). Each code must relate to a particular public sector entity, and applies to all public officials of that entity (s 13). The code must explain how the ethics obligations apply in the particular public sector entity, and must also develop conduct obligations (s.14).

(g) Relevance of codes to Integrity Commissioner

Section 32 provides:

"The Integrity Commissioner when giving advice about a conflict of interest issue to a designated person-

must have regard to the following-

approved codes of conduct;
ethical standards or codes of conduct adopted by the Legislative Assembly by resolution;
ethical standards or codes of conduct approved by the Premier for Ministers; and

may have regard to other ethical standards the Integrity Commissioner considers appropriate."

This is a very significant section. It could be read to mean that the codes of conduct are to apply if the designated person is a public official, that the standards adopted by the Legislative Assembly apply to government members, and the standards and codes approved by the Premier apply to Ministers. However, the words "…when giving advice about a conflict of interest issue to a designated person must have regard to the following", strongly suggest that the three categories apply to every designated person. The correctness of this approach is supported by the fact that not all designated persons fall into the categories of "public officials", "government member" and "Minister".

If this is the correct way to read s.32, then it has significant consequences. Every code of conduct provides standards of conduct consistent with the ethics obligations in the Public Sector Ethics Act (s.12(2)). To have regard to the codes of conduct involves having regard to the ethics obligations in the Public Sector Ethics Act.

This issue arose when the Premier, acting under the power to seek advice on issues concerning ethics and integrity, sought advice about a protocol for the disposal of gifts received by Ministers. Ministers who receive gifts valued in excess of $100 must report them. The gift then becomes the property of the State, and is held by the Ministerial Affairs Branch of the Department of Premier and Cabinet. Some gifts will have particular cultural and artistic significance, and in giving advice I referred to the ethics principle "respect for persons" (s.4 of the Public Sector Ethics Act) and its corresponding obligation in s.8 which embodies the need to treat people with a proper regard for their rights. Consequently, I advised that the protocol for the disposal of gifts should have regard to the wishes and expectations of the donor.

That advice did not involve a conflict of interest issue, and so did not directly involve the interpretation of s.32. However, it emphasised that the Public Sector Ethics Act is the source of the Integrity Commissioner’s powers and responsibilities. Consequently, in the future, when advising on conflict of interest issues, I shall regard the provisions of the Public Sector Ethics Act as defining an important part of every designated person’s official duties.

6. Conflict of interest

The Public Sector Ethics Act 1994 defines a "conflict of interest issue" involving a person as an "issue about a conflict between the person’s personal interests and the person’s official duties" (schedule).

A public official "should ensure that any conflict that may arise between the official’s personal interests and official duties is resolved in favour of the public interest" (s 9(2)(61)). Section 9 states the ethics obligation which is developed from the ethics principle "integrity". For the reasons I have just given, I have applied the obligation to resolve conflicts of interest in favour of the public interest to all designated persons.

It follows from these provisions in the Act that there are three issues to be identified:

the official duty or duties the person has;
the personal interest in conflict with that duty; and
the resolution of the conflict in favour of the public interest.

(a) Official duties

In most instances a person’s official duty is found in the Public Sector Ethics Act 1994 and the codes of conduct approved under the Act, the Public Service Act 1996 and the Financial Management Standard 1997. However, many of the "designated persons" who fall into the category of "statutory office holders" will have at least part of their duties defined by the legislation under which the office to which they are appointed is established. For example, the State Librarian and the members of the Library Board of Queensland are designated persons who discharge their duties under the Libraries and Archives Act 1988.

(b) Personal interest

In the approved codes of conduct, various examples are given of what may constitute a personal interest. I have tried to gather these together but it is very difficult to give an all inclusive definition. Such a personal interest can arise if:

a person has an interest in property of any kind, the value of which may be altered by a decision the person may be involved in making;
a person seeks and/or accepts gifts and/or hospitality which may influence or appear to influence decision making;
a person has or seeks employment outside the public sector which would compromise decision making;
a person uses an official position to gain unmeritorious advantages for relatives and friends;
a person has a strongly held personal conviction.
a person has an interest in any kind of property, the value of which may be altered by the use of confidential information obtained in the discharge of official duties.

Some discussion of these interests is necessary:

(i) An interest in property

The verb "may" is deliberately chosen to emphasise that if the decision to be made could alter the value of the decision maker’s property, the decision maker should not consider making the decision. For most "public officials" that is the proper response. However, many statutory office holders will be appointed to deal with issues that affect them. Often the legislation under which they operate will provide some guidance about the way they should consider their "interest". For example, the Queensland Competition Authority Act 1997 provides that a member is not disqualified if an interest consists only of the receipt of goods or services that are also available to members of the public, and are made available on the same terms as apply to members of the public. (s.219(27)).

In the Sugar Industry Act 1999, the interest which does not call for disqualification, in respect of the members of cane production boards and cane protection and productivity boards, is an interest the member has in common with growers or with owners in general. (ss.157(5) and 173(5)).

(ii) Hospitality and gifts

The Financial Management Standard 1997 contains a general standard for reporting gifts and hospitality received by public officials. Gifts in excess of $100 must be reported. However, this does not always mean that a gift or offer of hospitality of less value than $100 is inconsequential. The circumstances in which the gift or hospitality is given are also important. A quiet drink, which allows a person wanting to influence a decision to spend an hour with one of the decision makers, may raise more conflict than a lavish banquet, and should be avoided.

(iii) Outside employment

The words used here do not deal with an issue that raises some concerns, namely, post public sector employment. I have been asked for advice about this issue, but s 30(7) of the Public Sector Ethics Act 1994 states that "advice must not be sought by or about a person who has been, but is not presently, a designated person."

I have included in (iii) a person who is a director of a public company and also a statutory office holder. In the Public Sector Ethics Act, "personal interest" is used in contrast to "official duty", so that it should not be limited to some private or intimate interest. So, for the purposes of that Act, when a person is appointed to a statutory office, the duties belonging to that office are the "official duties" and the other duties and obligations the person has are "personal interests", even if they include being chairperson of the board of directors of a very large public company.

(iv) Relatives and friends

The Public Service Act 1996 sets its face against nepotism and patronage (s.24(h)). Nepotism is the practice of giving a job or position to a relative or friend rather than to a person with better qualifications (Source: Macquarie Pocket Dictionary). The departmental codes of conduct apply these concepts although the words are not used in the Public Sector Ethics Act. The words used here emphasise the importance of merit. They also cover an issue that concerns some public officials who become advocates for bodies that seek funds from the department which employs the official.

(v) Personal conviction

In most of the departmental codes of conduct, this issue is dealt with under the ethics obligation developed from the principle "respect for the law and the system of government". There is an obligation on a public official to carry out public sector decisions and policies faithfully and impartially, (s.7(1)(b)). This may raise a conflict if the official has a strongly held conviction about an issue. It may also arise from the obligations that arise from the principle "respect for persons". Personal convictions must not deny people fairness and a proper regard for their rights. (s.8(1)).

(vi) Confidential information

This issue does not need additional comment.

(c) The public interest

Any conflict of interest must be resolved in favour of the public interest. In most instances this will mean that the person involved will perform the public duty at the expense of the personal interest. However, this will not necessarily always be so.

One issue that has arisen in respect of advice that was sought concerns the interaction of an election promise with a contractual obligation. The matter was one I could not resolve because it involved a point of law about which I cannot give advice. However, a hypothetical case can demonstrate that official duty and the public interest may not always be the same.

It is common enough for governments to enter into contracts which cannot be completed within the life of one Parliament. As long as the contract is on foot, the responsible Minister has a legal obligation to see that it is completed according to its terms. However, some contracts are controversial and the opposition may indicate that, if elected, it will repudiate the contract. If that becomes an election issue, and the opposition is elected, the new Minister has the duty under the contract to complete the contract, and the interest arising from the election result in repudiating the contract. It is a matter of judgement whether, in those circumstances, the public interest calls for the repudiation of the contract.

7. "Designated persons"

Section 27 of the Public Sector Ethics Act 1994 identifies the following people as designated persons:

the Premier;
a Minister;
a Parliamentary Secretary;
a government member;
a statutory office holder;
a chief executive officer of a department of government or a public service office;
a senior executive officer or senior officer employed in a department of government or public service office;
a chief executive officer of a government entity or a senior executive equivalent employed in a government entity who is nominated by the Minister responsible for administering the entity;
a person employed in the office of a Minister, or engaged, to give advice to the Minister;
a person employed in the office of a Parliamentary Secretary, or engaged, to give advice to the Parliamentary Secretary;
without limiting paragraph (i) or (j), a person, or a person within a class of person, nominated by a Minister or Parliamentary Secretary.

Some of these categories require comments.

(d) A government member

This includes not only a member of the Legislative Assembly who is a member of a political party recognised in the Legislative Assembly as being in government, but also a member of a parliamentary committee who was nominated by a government member. During the passage of the legislation, the Members’ Ethics and Parliamentary Privileges Committee raised concerns about possible conflicts between the rulings given by the Clerk of Parliament and the Members’ Ethics and Parliamentary Privileges Committee and those given by the Integrity Commissioner. The Premier referred the Committee to s.31(3) of the Public Sector Ethics Act 1994 which permits the Integrity Commissioner to refuse to give advice where the giving of advice would not be in keeping with the purpose of part 7 of the Act.

I met the members of the former Members’ Ethics and Parliamentary Privileges Committee and told them that I would respect the rulings of the Speaker, the Clerk and the Committee.

(e) Statutory office holder

A definition in the schedule of the Public Sector Ethics Act 1994 means that a statutory office holder is:

"a person appointed by the Governor in Council or a Minister to an office established under an Act to which a person may only be appointed by the Governor in Council or a Minister."

In some instances the Act which establishes an office gives the office a name as well as defining the nature, function and authority of the office. The Public Service Act 1966 established the Office of Public Service Commissioner, giving both the name and the definition of the Office. Other Acts establish procedures for setting up offices to carry out defined functions. If such offices are ones to which a person can only be appointed by the Governor in Council or a Minister, then people so appointed are within the definition of statutory office holders and so are designed persons. The board members of a GOC fall within that definition (Government Owned Corporations Act 1993, s.96(11)).

(f) A chief executive officer of a government entity

A "government entity" has the meaning given by s.21 of the Public Service Act. The relevant part of the definition is:

"an agency, authority, commission, corporation, instrumentality, office or other entity, established under an Act".

A significant number of entities are excluded from the definition, namely:

a local government or a corporatised corporation;
the parliamentary service
the Governor’s official residence (known as ‘Government House’) and its associated administrative unit;
the Executive Council;
the Legislative Assembly;
a court of the State of any jurisdiction
the police service to the extent that it does not include staff members mentioned in the Police Service Administration Act 1990, section 2.5(1)(a);
a school council established under the Education (General Provisions) Act 1989, university or university college;
a primary producer cooperative association or commodity board that is not in receipt of moneys of, or financial assistance from, the Crown;
another entity, or part of another entity, declared under a regulation not to be a government entity.

The reference to the police service led me to think that the Commissioner of Police was not a designated person. However, that was not correct because the Commissioner of Police falls within (f) as the chief executive officer of a department of government.

It will be recalled that codes of conduct apply to public officials in "public sector entities". In respect of the identification of the people who may seek advice on a conflict of interest issue, the reference is to "government entities". The use of these two descriptions means universities and local authorities are required to have codes of conduct, but their chief executive offers are not designated persons. On the other hand, GOCs are not required to have codes of conduct, but the statutory office holders, who are in charge of them, are designated persons.

It seems likely that statutory office holders will be the people about whom most issues will arise. I have been asked for advice in respect of two matters involving the appointment of people to statutory boards, and another about the way in which a member of a statutory board, who was also the director of a company which became involved with issues before the board, should deal with the conflict of interest.

To assist people appointed to statutory authorities, the Department of Premier and Cabinet has prepared a book "Welcome Aboard: A guide for members of Queensland Government Boards, Committees and Statutory Authorities". It deals with this conflict of interest issue in this way:

"A director is obliged not to allow a conflict to arise between his or her interests and those of the corporation on whose board the director serves.

Conflicts may arise in a variety of ways. For example, in the case of government officials, as a result of holding an official position which carries responsibility for some aspect of the operation or affairs of the corporation, or over policy which affects the corporation. It may also occur as a result of being on the board of another corporation or being an employee of or consultant to another corporation having either dealings with the corporation or an interest in its activities. In such circumstances, the director who has a conflict must:

not have access to information of the corporation in relation to the matter in which he or she has the conflict;
absent himself or herself from all meetings of the corporation at which the matter he or she has, or may have, a conflict is discussed;
absent himself or herself from all meetings of the board at which any matter in relation to which he or she has, or may have, a conflict as a director of the corporation is discussed;
not seek, directly or indirectly, to influence the outcome of any deliberations by the corporation or any of its officers in relation to any matter to which he or she may have a conflict;
not participate in any way in the decisions of the corporation concerning matters involving the other organisation which the director represents;
not participate in any way in the decisions of the Board where those matters affect, or could affect, the corporation;
disclose interests in contracts with the corporation and potential conflicts through offices or property held.

Under the Corporations Law, unless the other directors otherwise resolve, a director of a corporation must not vote or be present at a board meeting in relation to a matter in which he or she has a material personal interest.

Reference should also be had to section 995 of the Corporations’ Law which deals with misleading and deceptive conduct."

8. Who may seek advice?

The Integrity Commissioner may give advice about a conflict of interest issue only if the person seeking the advice is a designated person and the person makes a written request for the advice. If the person seeking the advice is a senior officer, the request must be accompanied by a signed authority to seek the advice from the chief executive officer of the department, public service office or government entity in which the person is employed (s.29).

A designated person may seek advice about a conflict of interest issue involving the person. The Premier may seek advice about a conflict of interest issue involving any designated person. A Minister may seek advice about a conflict of interest issue involving a designated person within their area of ministerial responsibility. There is similar and appropriate power given to Parliamentary Secretaries and chief executive officers (s.30).

I have referred at some length to the provisions of the Public Sector Ethics Act because the Act sets out the responsibilities I have. It is unnecessary to refer to the other parts of the Act in order to report on the performance of the Commissioner’s functions.

9. Issues dealt with

One chief executive officer sought advice on four occasions about senior staff attending conferences at the invitation of companies who sponsored their attendance. Because the sponsoring companies dealt commercially with the department there was a perception of a conflict of interest. The significant factors were the potential benefit gained by the individual and the department from the conference, the involvement of the officer in any purchasing procedures and the nature of the sponsoring company’s involvement in the conference.

Three requests from Ministers concerned statutory office holders. I have already referred briefly to these. Any conflict is dealt with adequately by following the procedure laid down in "Welcome Aboard".

Two requests for advice, one from a Minister, the other from the chief executive officer, concerned a former staff person now working with a company that was dealing with the department. As I have already said, the Act prevents me giving advice in respect of former public officials.

A chief executive officer sought advice about accepting a position as a director of a non-profit organisation which encouraged research in the management and administration of public sector units with which the department was involved. The conflict involved no more than the use of time. The advice was that this was a matter to be raised with the Minister, as involvement in the organisation would enhance the performance of the chief executive officer’s duties.

A senior member of a Minister’s staff attended a political function as a guest, but bought an expensive art union ticket which won a valuable prize. The advice given was that, as the ticket in the art union was purchased by the staffer, it was not a reportable gift. The prize could be accepted because there is no expectation in the conduct of the art union that the winner will be in some way beholden to the person providing the prize.

A Minister sought advice about the disposal of a gift. The advice given was that no perception of advantage should be gained in the way the disposal occurred. One request from a Minister did not raise any conflict of interest issue.

Advice was also given to the Premier about the proposed guidelines for the disposal of ministerial gifts.

10. Other activities

The Queensland Integrity Commissioner, although essentially limited to giving advice about conflict of interest issues, needs to have a broad knowledge of the codes of conduct approved for public sector entities, and knowledge of the legislative framework of contemporary State Government. Much of my time in this first ten months has been spent gaining this knowledge.

It has also been necessary to create awareness within the public sector of the responsibilities of the Integrity Commissioner. With the assistance of officials in the OPSME a fact sheet was prepared and distributed through Departments, not only to staff but also to statutory office holders. On 14 November 2000, I addressed a meeting of the Queensland Public Sector Ethics Network, which is a forum for departmental officers responsible for ethics training in these departments.

The website was developed with the assistance of officials in the Department of Premier and Cabinet, the OPSME and the Deputy Clerk of Parliament, to give access to the Public Sector Ethics Act and to the role of the Integrity Commissioner. I prepared a paper which I read on 8 April 2001 at a conference about teaching ethics organised by the Griffith Key Centre for Ethics, Law, Justice and Governance. This paper, which examines briefly the other bodies which are designed to uphold the integrity of government in Queensland and places the Integrity Commissioner within that framework, is available on our website.

On 12 October 2000, I attended a meeting of the Board of Management of the Department of Families, Youth and Community Care, and spoke about the Integrity Commissioner’s role. A similar presentation was made on 9 February 2001 to the Regional Manager’s Forum at Yeppoon and to the senior management of Stanwell Corporation Limited on 23 November 2000.

For people interested in public sector ethics, the visit of Lord Nolan to Brisbane in October 2000 was significant. Lord Nolan chaired the committee in England which examined public standards, and whose report led to changes in the rules affecting members of Parliament. I was able to have a meeting with Lord Nolan on 13 October 2000.

I spoke about the role of the Integrity Commissioner at a breakfast for business leaders organised by the St Andrew’s Centre for Ethics and Spirituality on 15 November 2000, to a meeting of the Rockhampton Probus Club on 15 March 2001 and at an Ecumenical Social Justice Day in Toowoomba on 3 April 2001. These three quite different occasions produced three papers which are also on our website. On 20 June 2001, I read a paper at the Queensland Law Society’s Continuing Legal Education convention for Government Lawyers on the topic of Government Ethics. This paper is on our website. In December 2000 I prepared a short article on the role of the Integrity Commissioner for the CJC publication "Prevention Pays" which appeared in Issue No. 4.

11. Published comments

As should be expected when a new statutory office is created, there have been some comments published in the print media about inadequacies in the powers and responsibilities of the Queensland Integrity Commissioner. As most of these comments seem to ignore the words of the Public Sector Ethics Act, I should make some response as a contribution to public discussion of policy and practice relevant to the Integrity Commissioner’s function. I shall identify the substance of the comments in the following headings:

(a) The people who may seek advice

Some comments appear to assume that the only significant group of people who can seek advice are Ministers. This is perhaps encouraged by s.25 of the Public Sector Ethics Act which refers to "Ministers and others." I have referred earlier to the definition of "designated persons" who may seek advice. There are in excess of 5000 of them. Ministers are numerically a very small part of the client base for the Integrity Commissioner.

(b) Limited nature of role

The Integrity Commissioner can give advice to designated persons about conflicts of interest. This touches a limited part of the good administration of the public sector. However, the Public Sector Ethics Act sets out clearly the obligations of public officials, and the codes of conduct apply those obligations to the daily activities of public administration. If a public official does not comply with those obligations, disciplinary proceedings can be taken. Because there will be occasions when conflicts of interest issues involve the interaction of competing values, the independent advice of the Integrity Commissioner is available. Otherwise the codes of conduct provide an adequate guide. The role of the Integrity Commissioner is limited because the issues that arise daily are well covered by the Public Sector Ethics Act and the codes of conduct developed from that Act.

(c) Lack of investigative powers

The Integrity Commissioner has no investigative role. The Audit Office examines the financial affairs of a very large part of the public sector. The Criminal Justice Commission investigates allegations of maladministration in an even broader band of the public sector. The Ombudsman deals with complaints by the public about public service issues. The Health Rights Commission, the Anti-Discrimination Commission and the Children Services Tribunal all investigate specific complaints arising in the public sector. It is unnecessary that there be another body that investigates issues of concern in the public sector.

In contrast, the Integrity Commissioner offers advice to those who seek it. This is because, on some occasions, decision makers are faced with interacting values, and the availability of independent advice is designed to assist in those circumstances.

(d) Lack of enforcement powers

The Integrity Commissioner does not commence disciplinary proceedings against people who ignore advice given. This would be inconsistent with the nature of the role, which is to give confidential advice to people who seek it.

That does not mean that if the advice is ignored, that breach is ignored. If a designated person is advised by the Integrity Commissioner of the Commissioner’s belief that the person has a actual and significant conflict of interest, and the person fails within 7 days to resolve the conflict, the Integrity Commissioner must give a copy of the advice to the Premier, unless the person is a senior executive officer, senior officer or senior executive equivalent. In the latter case, the advice is given to the person’s CEO. Disciplinary proceedings can follow.

(e) Advice not available to opposition members of Parliament

The list of "designated persons" who may seek advice from the Integrity Commissioner includes "government members". The definition of those words in the Public Sector Ethics Act includes not only the members of the political party recognised in the Legislative Assembly as being in government, but also a member of the Legislative Assembly who is appointed as a member of a parliamentary committee on the nomination of a member of the government. Other opposition members do not have access to the Integrity Commissioner.

When the list of people who are identified as "designated persons" is considered, it will be apparent that, apart from the category "a government member", the others are involved in the executive arm of government. It is in respect of decisions made in the performance of those duties that conflicts of interest can arise.

In respect of the legislative activities of members of the Legislative Assembly, conflicts of interest that may arise are dealt with by resolution of the Assembly. A register of interests is kept by the Clerk of Parliament. Advice that members of the Legislative

Assembly, either in government or in opposition, may seek, is available from the Office of the Clerk of Parliament and the Members’ Ethics and Parliamentary Privileges Committee.

(f) No report to Parliament

The Integrity Commissioner must report annually to the Premier. The Premier is answerable to Parliament for the due administration of the executive arm of government.

(g) Vulnerability of the Integrity Commissioner

It appears to be suggested that because this role is confidential, it is vulnerable to political manipulation. The Integrity Commissioner is a public official within the meaning of the Public Sector Ethics Act. That means that the ethics obligations in the Public Sector Ethics Act apply to the Integrity Commissioner. That includes the duty to act independently of government if required by legislation (s.7(2)). The use of the title "Commissioner" is generally understood to establish an independent office and that is certainly the way I have understood it.

(h) Limited access by senior officers

One of the categories of "designated persons" is "a senior executive officer or senior officer employed in a department of government or public service office." Such a person can only request advice if the request is accompanied by a signed authority to seek the advice from the chief executive officer of the department (s.29(1)(c)). This is consistent with s.84(1) of the Public Service Act 1996 which requires a public service employee to disclose conflicts of interest to the chief executive officer.

(i) Premier’s access to confidential information

If the Premier asks for a copy of a relevant document relating to a particular designated person, the Integrity Commissioner must give the Premier a copy provided the designated person is other than a senior executive officer, senior officer or senior executive equivalent. If the particular designated person is a senior executive officer, senior officer or senior executive equivalent, a copy of the relevant document can only be given to the CEO. The Integrity Commissioner and staff can only disclose information in accordance with the provisions of the Public Sector Ethics Act. The Premier does not have any general access to confidential information.

(j) Absence of public comment

Some journalists have sought my answers on questions they have raised. The Public Sector Ethics Act gives the Integrity Commissioner the power to give confidential answers to designated persons in respect of questions they raise. The general public and journalists are not included as designated persons. The Act also requires the Integrity Commissioner to contribute to public discussion of policy and practice relevant to the Integrity Commissioner’s functions. That contribution is not to the public discussion of contemporary issues, but in respect of policy and practice relevant to the Integrity Commissioner’s functions. There is a considerable amount of material on the web site which does this.

12. Finance and administration

Before any appointment of an Integrity Commissioner was made, a budget for the whole financial year had been prepared. This budget allowed for a salary for the Integrity Commissioner and personal assistant for the whole year, together with office costs. As my appointment took effect on 24 August 2000 and the appointment of an acting personal assistant occurred at the same time, expenditure on salaries is below budget.

The furniture for the office in Federation House was taken from the Department of Public Works’ store. In this financial year, the only expense in respect of furnishing the office involved the purchase of a second hand hat stand. A computer, fax machine, shredder and four drawer filing cabinet were purchased for use by my personal assistant. Any photocoping and binding of material downloaded from the Internet is carried out using the equipment of the OPSME.

In Rockhampton the only furniture purchased was a three drawer filing cabinet. A computer was provided for my use, which amounts to approximately 6 days in a 20 day period. When I am not using the office and computer, it is used by other officials of the Department of Premier and Cabinet.

Hospitality was extended to a group of university lecturers interested in the ethics area and to people invited to the launching of the web site: www.integrity.qld.gov.au. The first occasion allowed for useful interaction. The second occasion was over catered because representatives of the news media were invited, but none attended.

The financial statements are attached to this report as are the statistics about the number of requests for advice.

13. Future directions

The past ten months has been the establishment phase of the Office. I have made personal contact with Ministers and the chief executive officers of all departments and most of the heads of the Public Service Offices in schedule 1 of the Public Service Act 1996. I have also prepared papers and speeches which appear on the web site. A fact sheet has been prepared and distributed among departments. I have also read codes of conduct and legislation relating to the many different entities whose management may seek my advice. This is still a work in progress.

The past ten months has also been a time when the OPSME has been through a process of restructuring. That is now virtually complete. The position, which I have described as my personal assistant, has been reclassified so that it is clearly recognised that that person will perform work not only for me, but also for the OPSME.

It is my expectation that over the next year a careful analysis of the various codes of conduct will be undertaken. The codes have been prepared with care and with attention to the issues that arise within departments, and in many instances are presently being revised. An overview of the codes will allow for the sharing of the strengths found in the various codes. It will also assist in the training programs the OPSME offers to departments.

Over the next twelve months I will concentrate my attention on the Government Owned Corporations, statutory bodies and controlled entities. There have been comments in the print media which indicate that there is not a great deal of understanding in the community about the important role these bodies play and how issues of conflict of interest are dealt with.

Attachment A: Financial Statement

Integrity Commissioner Expenditure for Financial Year 2000/01

	Total Budget	183 000.00

ITEM DESCRIPTION EXPENDITURE	EXPENDITURE
Salaries & Oncosts
Commissioner Salary	43 110.28
Superannuation	5 496.56
Oncosts	8 645.79
Sub Total	57 252.63
Administration Staff Salaries	37 405.66
Superannuation	2 139.21
Oncosts	1 539.21
Sub Total	41 084.08
Total Salaries & Oncosts		98 336.71

General Expenses
Office Expenses (incl. Computer Equip)	4 852.39
Domestic Travel & Accommodation	3 883.38
Telecommunications	1 423.80
Hospitality	589.49
Productions & Publications	2 212.83
Minor Capital Works	1 189.00
Other Administration Costs	767.94
Sub Total	14 918.83
Total General Expenses		14 918.83
TOTAL EXPENDITURE FOR 2000/01		113 255.54

Please note that due to the restructure of the OPSME early in the financial year, both the Ethics Unit and the Integrity Commissioner have shared expenditure within this budget.

Please note that this financial statement has not been subject to Audit.

Attachment B: Summary of Requests

Inquiries Received 30 August 2000 to 30 June 2001

Received
From

Number Received

Further Information Requested

Potential
for Conflict

No Conflict

No
Jurisdiction

Premier

Premier & Treasurer

Minister

Director General

Other

TOTAL

Month	Number of Queries
September 2000	0
October 2000	2
November 2000	1
December 2000	2
January 2001	1
February 2001	0
March 2001	2
April 2001	3
May 2001	3
June 2001	0
July 2001	0
August 2001	0
Total	14