Integrity measures to ensure accountability and transparency of government
Address to a conference on “Evolving models of governance & accountability in a changing public sector environment”, Canberra, 24 February 2011 by Dr David Solomon AM
Queensland Integrity Commissioner
On Wednesday next week in Brisbane, I will be attending a meeting of an informal committee, called the Integrity Committee. The following office-holders are its members – the Chair of the Crime and Misconduct Commission, the Ombudsman, the Auditor-General, the Information Commissioner, the Chief Executive of the Public Service Commission and the Integrity Commissioner. Most of us are officers of the Parliament and all of us have our roles defined by statute. We meet three or four times a year to discuss a wide range of ethical and integrity issues and we share information about our activities. At least part of what each of us does is concerned with the title of this talk, implementing “Integrity measures to ensure accountability and transparency of government”. I intend to say a little about the integrity functions of each of us before looking at some of the significant changes that are being introduced in Queensland – some recently, some in the very near future. And finally I will look at some other reforms that may be considered.
Let me begin with the Chair of the Crime and Misconduct Commission (CMC). He heads an organization that was first created as the Criminal Justice Commission on the recommendation of Tony Fitzgerald QC in his famous report on corruption in Queensland, published almost 22 years ago. Originally, the Fitzgerald inquiry was into allegations against various members of the Queensland Police Service. But the terms of reference were extended on several occasions and eventually Fitzgerald was empowered to report on endemic corruption in the political system in the State. The Commission has gone through several major changes, and now has a role in combating serious and organised crime, but its primary focus remains on misconduct within government - and by government, in this case I mean everything from Ministers and MPs through the traditional public service, to the police force, local government and most recently, government owned corporations. The CMC says its vision is to make a unique contribution to protecting Queenslanders from major crime and promoting a trustworthy public sector. The CMC does not just handle complaints, of which it received more than 4,600 last financial year. It puts a great deal of effort into training people in the public sector to avoid conflicts of interest and other forms of misconduct, and trying to build integrity. It has created an integrity index, to help measure the success of different agencies within the sector.
Next, the Ombudsman . Queensland has had an Ombudsman for over 35 years, performing the traditional functions of receiving complaints and answering queries from the public about the public sector – almost 20,000 of which were received in the last financial year – and making recommendations to heads of public sector agencies about unfair or incorrect decisions – all of which were acted upon last year. But as with the CMC, the
Ombudsman does not merely respond to complaints from the public. It investigates and reports to Parliament on administrative problems within the public sector of a systemic nature. It also provides more than 100 training sessions a year to public sector officials on good decision-making and complaints management.
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The Auditor-General is the longest established of the integrity mechanisms in
Queensland – aside, that is, from the Parliament. The first Auditor-General was appointed more than 150 years ago, less than a year after the colony separated from New South Wales.
In the last financial year the Auditor-General presented 11 reports to Parliament, four of them financial and assurance audits, and seven performance management systems audits. The recommendations made in the latter reports were mainly accepted by clients.
The Information Commissioner has a series of responsibilities directly relevant to the government’s accountability and transparency flowing from the provisions of the
Right to
Information Act 2009 . The primary object of that Act was stated to be – to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access.
The Act has a preamble in which the Parliament says –
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Parliament recognises that in a free and democratic society—
(a) there should be open discussion of public affairs; and
(b) information in the government’s possession or under the government’s control is a public resource; and
(c) the community should be kept informed of government’s operations, including, in particular, the rules and practice followed by government in its dealings with members of the community; and
(d) openness in government enhances the accountability of government; and
(e) openness in government increases the participation of members of the community in democratic processes leading to better informed decision-making; and
(f) right to information legislation contributes to a healthier representative, democratic government and enhances its practice; and
(g) right to information legislation improves public administration and the quality of government decision-making; and
(h) right to information legislation is only 1 of a number of measures that should be adopted by government to increase the flow of information in the government’s possession or under the government’s control to the community.
(2) The Government is proposing a new approach to access to information.
Government information will be released administratively as a matter of course, unless there is a good reason not to, with applications under this Act being necessary only as a last resort.
This proactive approach to releasing information is overseen by the Information
Commissioner who has broad powers, including the power to issue guidelines to agencies about the release of information to promote openness and accountability. The RTI Act is far
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more effective in this regard than the Freedom of Information Act 1993 which it replaced.
The former Act, though created in the same spirit, had been amended during the 1990s and subsequently in a number of ways that allowed Ministers and agencies to restrict the information they were supposed to provide. The most notorious allowed ministers to hide any document by simply taking it into the Cabinet room. There were instances of Ministers have trolley loads of files wheeled into Cabinet just to acquire exemption for them.
The reform of FOI was a crucial part of the agenda of Anna Bligh when she became Premier in September 2007. She proposed setting up an independent panel to make recommendations for reform as the very first item on the agenda at her first Cabinet meeting, and she carried through the task of having almost all the recommendations of the panel approved by Cabinet and adopted by the Parliament. In passing I should also mention that another accountability and transparency reform that she initiated early in her premiership resulted in the creation of the Queensland Civil and Administrative Tribunal. The creation of such a tribunal had been recommended in 1993 by the Electoral and Administrative Review Commission, but the
Bligh Government, 15 years later, was the first to take up the challenge and then create a tribunal that undoubtedly adds to accountability and transparency in government.
But back to the members of the Integrity Committee. The next one I should mention is the
Chief Executive of the Public Service Commission . The PSC’s role is defined in the Public
Service Act 2008 and includes –
(a) enhance the public service’s human resource management and capability;
(b) promote the management and employment principles;
(c) enhance and promote an ethical culture and ethical decision-making across the public service;
(d) enhance the public service’s leadership and management capabilities in relation to disciplinary matters;
(e) conduct commission reviews;
As well as these traditional functions the PSC has an important new role. It is the oversight agency with responsibility for ensuring that the new Public Interest Disclosure Act
2010 functions as intended. The PID Act replaced the former Whistleblowers Protection Act
1994 following a review of the operation of all federal and state laws in this area. It contains a provision allowing protected disclosures to be made to the media in certain circumstances.
The last member of the Integrity Committee is the Queensland Integrity Commissioner .
This position was created through an amendment to the Public Sector Ethics Act 1994 , in
1999. The Commissioner’s primary role was to give advice to various designated persons – essentially Ministers, MPs, senior public servants, statutory office holders and staff of
Ministers and Parliamentary Secretaries – about conflicts of interest. The purpose of creating the office, as stated in the Act was to help Ministers and others to avoid conflicts of interest and in so doing to encourage confidence in public institutions. Recently this advisory role has been broadened – the Commissioner can now be asked for advice about any ethics or integrity issue, including conflicts of interest.
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But since the beginning of 2010, the Commissioner has had an additional role, that falls directly within the accountability and transparency area. The Commissioner is now responsible for keeping a register of lobbyists to regulate contact between lobbyists and State or local government representatives so that lobbying is conducted in accordance with public expectations of transparency and integrity. I will discuss this function in more detail a little later, along with some suggestions about how it might be reformed to make it more effective in delivering transparency and accountability.
Earlier I mentioned two of the Premier’s initiatives - on Freedom of Information and the creation of the Queensland Civil and Administrative Tribunal. But they are just the beginning.
In mid-2009, a former Minister in the Beattie Government, Gordon Nuttall, was tried and convicted on corruption charges and sentenced to gaol for seven years. Shortly after, Tony
Fitzgerald QC, in a speech marking the 20 th
anniversary of his report on corruption in
Queensland, was highly critical of Queensland’s commitment to reform.
I should quote just three or four paragraphs from the speech. Mr Fitzgerald said
Ethics are always tested by incumbency. Secrecy was re-established by sham claims that voluminous documents were “Cabinet in confidence”. Access can now be purchased, patronage is now dispensed, mates and supporters are appointed and retired politicians exploit their political connections to obtain “success fees” for deals between business and government.
Neither side of politics is interested in these issues except for short-term political advantage as each enjoys or plots impatiently for its turn at the privileges and opportunities which accompany power.
Unfortunately, cynical short-sighted political attitudes adopted for the benefit of particular politicians and their parties commonly have adverse consequences for the general community. The current concerns about political and police misconduct are a predictable result of attitudes adopted in Queensland since the mid-1990s.
He concluded –
Even if we cannot rely on politicians to voluntarily curb their excesses or tell the truth, a well-informed community which is committed to doing so can influence the way it is governed, just as Queenslanders did in 1989. Matters are much better than they were but it is a mistake to take that for granted.
The Premier’s reaction to Tony Fitzgerald’s comments, apart from pointing out that the integrity system that was in place had actually succeeded in investigating Nuttall’s criminal conduct as a Minister, and successfully prosecuting him, was to commence a new round of integrity reforms.
In August 2009, the Premier published a green paper on integrity and accountability in
Queensland. This reviewed the existing system and sought suggestions from the public about how it might be improved. A consultative process was established that took various forms, including seeking submissions – more than 230 of them - holding about a dozen public forums and two open, internet-enabled, public meetings. Supervising the process were the
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Premier and Attorney-General and some non-government people who were appointed to a socalled round table group, that eventually made recommendations based on the submissions and consultations. Those in the group included the then chair of the Crime and Misconduct
Commission, Robert Needham, a former chair of the NSW Independent Commission Against
Corruption, Irene Moss, the Dean of the Australian and New Zealand School of Government and former head of the ACCC, Professor Alan Fells, several other academics, and myself as
Integrity Commissioner. Most of the round table’s recommendations were adopted by the government. In November 2009 the Government published its formal response to the green paper process, promising significant reforms that would be introduced over the following year.
Most of the reforms are now in place, though there is one important matter yet to be finalised, namely, the revamping of the parliamentary committee system. The reforms were mostly implemented in accordance with the timetable that the Premier included in Government’s response to the green paper.
(a) Integrity Act – integrity
The first emanation of the enhanced accountability regime was a new Integrity Act, passed by Parliament at the end of 2009 and in force from 1 January 2010. This had three main objects. The first was to move the provisions affecting the Integrity Commissioner that formerly resided in the Public Sector Ethics Act 1994 to the new Act, and to expand some of the Commissioner’s functions. The second was to create a legislative framework for the regulation of the lobbying industry in Queensland, to ban success fees for lobbyists and to make the Integrity Commissioner responsible for the Register of Lobbyists. The third was to give the Crime and Misconduct Commission jurisdiction over Government Owned
Corporations.
When the green paper was being prepared, the Premier decided that the Integrity
Commissioner should personally interview every Government Member of Parliament about the declarations of pecuniary interest that each of them has to submit to the Parliament, to check that they avoid any conflicts of interest that might arise. I have started on my second round of interviews with those MPs. The new Integrity Act made special provision for the conduct of such interviews, without making them compulsory.
The Act contained an interesting new accountability measure. It required chief executives of agencies and, by a later amendment all statutory office holders, to provide the Integrity
Commissioner with copies of their declarations of interest. Unusually it also provided that the
Integrity Commissioner’s annual report should identify anyone who failed to provide a declaration. The Integrity Commissioner was also given access to the declarations of interests of the related persons of MPs. The declarations of MPs are public and accessible on the
Parliament’s website. However their declarations about the interests of their related persons are confidential and can only be accessed by a small number of officials.
I should also mention an important symbolic change. The Integrity Act made the
Commissioner an officer of the Parliament – rather than the Government – and linked the office closely to a parliamentary committee – the renamed Integrity, Ethics and Parliamentary
Privileges Committee. I have an arrangement to meet with the committee once or twice a year and our discussions on those formal occasions are recorded by Hansard and the record is tabled in the House. The first of those meetings occurred in June last year.
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(b) Integrity Act – lobbying, including local government and Government Owned
Corporations.
Early in 2009, a lobbyists registration system was established in Queensland by administrative fiat. This followed the establishment a similar schemes at the Commonwealth level and in some other States. Essentially it forbad “government representatives” to have any dealings with third party lobbyists unless the lobbyists were on a Lobbyists Register, created and maintained by the Government. They also were required to adhere to a Code of Conduct, drawn up by the government. The green paper exercise found that most respondents thought that while the register was a good idea, having it controlled by the Department of the Premier and Cabinet was not. The Government accepted this, and decided that that responsibility should be transferred to the Integrity Commissioner. It also decided that the lobbying industry should be regulated formally by legislation. This also allowed it to put the registration system on a firmer – and larger - footing.
The legislation gave effect to the previous administrative scheme, transferring most of its provisions into the new Integrity Act. But there were four significant changes to the system.
First, the Integrity Commissioner was given power to develop a new Lobbyists Code of
Conduct, with which “Lobbyists must comply” (s. 68). Failure to comply would be a reason for the Commissioner to refuse registration to the lobbyist, and that would come with a cost – not being able to lobby government. The latest amendments to the Integrity Act (effective
November 2010) give the Commissioner power to warn or suspend lobbyists from the
Register. They also allow the Commissioner to gather data from Departments and others about contact with lobbyists. Departments and other agencies now have to maintain a register of contact with lobbyists. Most local government councils are expected to do the same.
Second, the reach of the licensing system was extended. Not just government but also local government and Government Owned Corporations would be required to have no dealings with a lobbyist who was not registered under the Act.
Third, the Act also dealt with success fees. It made them illegal for lobbyists. The
Integrity Act provides that lobbyists cannot ask for or receive success fees for their efforts in lobbying government. If a lobbyist offends this prohibition, and is caught, they would not only be fined but would also surrender the fee to the Government.
And fourth, the Act gave legislative force to requirements that were formerly in the Code of
Conduct concerning former senior government representatives. Former ministers, ministerial staffers, senior public servants, local government councillors and their senior staff, are all prohibited, for two years after they leave government, from doing any lobbying involving areas in which they had had “official dealings”.
I will say something about what I see to be defects in the Act a little later.
(c) Whistleblowing
Towards the end of last year Parliament replaced the Whistleblowers Protection Act with the Public Interest Disclosure Act. It is based on research conducted by Professor AJ Brown of Griffith University and others and appears to go a long way to overcoming the difficulties that were found in the administration of the former Act. As I mentioned earlier, among other
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things it provides for the Public Service Commission to monitor the way Departments and agencies react to whistleblowers and it also allows whistleblowers to resort to the media if their concerns are not properly investigated and dealt with. Professor Brown regards the new
Queensland Act as the most progressive in Australia. It came into force in January.
(d) Single code of conduct
There has also been a lot of work done on the production of a new Code of Conduct for the Queensland public service. This involved changes to the Public Sector Ethics Act which have now come onto effect. The new Code has also just taken effect. While the document is about 16 pages long, the material outlining and explaining the Code is about 10. It replaces codes that were developed by individual departments, some of which were of inordinate length – I know of one that was over 100 pages. Departments and agencies can develop standards of practice to support the code.
(e) Declarations of interest by MPs
The Government decided to give legislative force to the requirement for MPs to make declarations of their interests. This was previously covered by Standing Orders. The
Parliament acted immediately to put the declarations of all MPs on its website, and changes are made regularly to reflect any amendments that are made.
(f) Declarations by public servants
The Public Service Commission has extended the requirements for senior public servants to make declarations of interest.
(g) Gifts policy
It has also issued a directive about gifts. The requirements are now uniform across government – previously, Ministers had the opportunity to purchase gifts at a discount (that is, wholesale value) rate. The disclosure level has been set at $150, and departmental registers are going to be available on-line.
(h) Contracts
A new procurement policy is being developed. Contracts of a value of $10 million and more are to be published and those over $10,000 are to be notified online.
(i) A better parliamentary committee system?
Prospectively one of the really significant improvements in accountability would be the development of a better and more effective parliamentary committee system. A parliamentary committee was established specifically to review the current system and its operation. It reported in December. It recommended the establishment of a comprehensive set of nine committees covering the whole of the government, each of them dealing with administration, new legislation, estimates, petitions and so on. I will return to this and provide more details, and discuss possible implementation, a little later.
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(j) Upgrading the role of the Public Service Commission.
The Public Service Commission is having its role enhanced in a number of ways. First it is will have a stronger role in ensuring consistency of disciplinary action and practices across the whole public sector. Second, it has acquired a new Ethical Standards Branch to assist in providing advice on ethics issues. In its first few months, the service has been getting more than 100 inquiries a month, but most of these are about workforce policies and less than a quarter concern ethics or public interest disclosures.
The Ethical Standards Branch is also overseeing the expansion of a pre-existing public sector ethics network to ensure it is represented in every agency. And it is providing the lead in the development of mandatory training in ethical decision-making across the whole sector.
Training will be run at an agency level but the PSC will provide materials and ensure there is some uniformity. All new public sector employees will be required to undertake Code of
Conduct training. In addition, the government has decided there will be mandatory, annual training in ethical decision-making for the whole of the public sector.
(k) Ministerial staff
The Government also decided on the recommendation of the round table group to introduce legislation similar to the federal MoPS (Members of Parliament Staff) Act covering the employment of ministerial and electorate staff. This has now been passed as the
Ministerial and Other Office Holder Staff Act 2010 . It came into effect on the first of
November. The Government has also published rules governing the relationship between
Ministerial staff and public servants. Their content may be amended following a report from the Crime and Misconduct Commission of an inquiry into the way some funds were made available to the Queensland Rugby Union and how those funds were spent, and the role of a particular ministerial adviser in that process. The CMC in turn has recommended that the
Ministerial Services branch of the Department of the Premier and Cabinet conduct a further review of the system, consulting people such as the unions, the relevant parliamentary committee, the Ombudsman and myself.
Still to come
Regulating Lobbying
There are three important reforms still in progress. Whether there will be any movement on the first of these is frankly up in the air. This is the system of regulating lobbying. I have initiated a review of the lobbying provisions of the Integrity Act and of the Lobbyists Code of
Conduct. I have asked people in government, local government, the lobbying industry and anyone else with an interest to provide me with any proposals or suggestions they might have, and advertised the review on the website. I am hoping to provide government with my proposals by the end of next month. But whether anything then happens is up to the government, and I don’t know what the prospects of reform are. The only direct changes that
I can make are to the Lobbyists Code of Conduct.
The most important area of reform is about who should be regulated as a lobbyist. At present, the only people who have to register are third party professional lobbyists. Many of them complain that there are people such as lawyers and accountants involved in government relations work who are also lobbyists but do not register. There are in fact many groups who
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lobby government who are not presently required to register. I saw a prime example in the
Financial Review a few weeks ago. A headline caught my eye – “Lobbyists turn a profit on influence peddling”. The story began –
They are the heavy hitters in the business lobbying world and after some lean times the finances of Australia’s peak bodies have bounced strongly back.
Who are the heavy-hitters of the business lobbying world? Well, they include the
Australian Industry Group, the Australian Institute of Company Directors, the Minerals
Council of Australia, the Business Council of Australia and the Australian Chamber of
Commerce and Industry. But none of them is registered as a lobbyist in Queensland, or anywhere else in Australia. That’s because despite their power, wealth and ability to apply pressure and to influence our governments, they are exempt from registering. The Integrity
Act says in section 41(2)(b) none of the following entities is a lobbyist –
An entity constituted to represent the interests of its members;
Examples
 an employer group
 a trade union
 a professional body, for example, the Queensland Law Society
Who else are not lobbyists? An entity carrying out a lobbying activity only for the purpose of representing the entity’s own interests - s. 41(2)(e). For example – Developers seeking development approval from local councils. Mining companies seeking approvals or permits. Property owners seeking changes in the tax law.
Last year the NSW Independent Commission Against Corruption (ICAC) carried out an investigation into corruption risks involved in lobbying. In its report published in November it proposed a substantial increase in the number of entities that should be required to register as lobbyists. (I should interpolate that the present NSW list is similar to that in Queensland.)
ICAC thought that there should be no exemption for professionals such as lawyers, accountants and planners. It also considered that the exemption for entities that engage in lobbying on their own behalf should be removed.
These proposals would considerably expand the number of entities that have to register as lobbyists. My guess, based on the system in Canada which has a similarly wide system of registration, is that four or five times as many entities would have to register. To put that another way, the current system only requires about one-fifth of those entities that are involved in lobbying to actually register as lobbyists. I should add that ICAC thought the number of entities required to register could be 8 to 10 times the number currently on the register.
So far, I haven’t seen any significant reaction by the political parties in NSW to ICAC’s proposals. No doubt there will be some pretty heaving lobbying to try to prevent them being adopted. I expect that if I were to make a similar recommendation in Queensland, there would similarly be a lot of opposition from those who would be caught up in the system.
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Parliamentary Committees
The next reform that is still in progress is changing the parliamentary committee system to make it more comprehensive and more capable of making government more accountable and transparent. I mentioned earlier that as a result of the green paper exercise the Parliament set up a committee to examine the committee system and it presented its report in December.
In outlining its recommendations I should remind you that Queensland has a unicameral
Parliament – it abolished its upper house in 1922. This means that when the government of the day has a majority, Parliament may find it difficult to keep it accountable.
The Committee on the Committee System made dozens of recommendations aimed at ensuring, as it put it, “accountability and scrutiny”. Its central recommendation was for the creation of nine subject-based committees with the following functions in their policy areas –

Monitor and review of all issues and executive action, including operational matters and events

Consideration of proposed legislation, both from a policy point of view and to ensure compliance with fundamental legislative principles

Scrutiny of the estimates

The ability to consider petitions.
The Committee recommended abolition of the Scrutiny of Legislation Committee and the
Public Accounts and Public Works Committee (as these functions would be taken over by the portfolio based committees) and creation of a new Committee of the Legislative Assembly, amalgamating the Standing Orders Committee and the Integrity, Ethics and Parliamentary
Privileges Committee and giving it additional functions over budget submissions and resources of committees. The Committee also proposed downgrading the role of the Speaker, removing him from the Committee of the Legislative Assembly and reducing his role on budgets and the control of some of the administration of the Parliament.
Some of this is quite controversial, though not in a public sense. I have written a submission critical of some of the proposals and, independently, so have some other members of the Integrity Committee. The final decision on the shape of the committee system will be made by Cabinet – or it may have been made already. We will know soon enough. I’m fairly confident that the outcome will be a definite improvement in the committee system and an it should result in an increase in government accountability and transparency.
Electoral reform
The final matter that is still unresolved – or perhaps I should say not quite ticked off, because there is little doubt about what will happen – is reform of the Queensland electoral system. That is the title of a paper issued by the Premier in December 2010 and again this is one of the green paper reforms. The promise was to reform electoral donation laws if the
Commonwealth had not acted by July 2010. The Commonwealth talked but didn’t act. As it happened, NSW did take some actions, and what Queensland is proposing is to a considerable
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extent influenced by what happened there – in the hope of some uniformity across the various jurisdictions.
The main proposals in the paper are –

A cap on donations a donor can make to a registered political party of $5,000 a year

A cap on donations to MPs and candidates of $2,000 a year

A cap on expenditure on state electoral campaigns of $80,000 for each seat by political parties, $50,000 per seat by each endorsed party candidate but $75,000 for independents

Increased public funding. The major parties would be entitled to spend $7.12 million on a campaign and receive $5.34 million in government funding. Endorsed candidates could spend $50,000 and receive $21,250. Independents could spend $75,000 and receive almost $32,000.

Third parties – unions, interest groups, employer organisations and so on – can spend
$500,000 statewide or $75,000 in a single electorate
As well as these proposals affecting campaign spending and donations, the government also proposed changes to the enrolment system, similar to those in NSW and Victoria. There will now be automatic enrolment for people within 21 days of them turning 18. People as young as 16 will be able to provisionally enrol. And eligible voters will be able to enrol or change their electoral details up to the day before an election.
I said these proposals had not yet been ticked off. In fact the paper asked for submissions, and the closing date for them was last week. However the paper also said that the proposals to implement the donations cap would be backdated to operate from 1 January this year. No doubt that explains why Queensland Nickel, a company controlled by Clive Palmer, gave the
Queensland Liberal National Party a $500,000 donation on 29 December last year.
I should add that one of Australia’s leading academic experts of electoral matters, Dr
Graeme Orr, who recently published a book titled The Law of Politics: Elections, Parties and
Money in Australia , wrote an article about these changes in The Courier-Mail (December 22,
2010, p. 39) which concluded with these words –
… barely a generation ago, Queensland politics remained a frontierland, with a premier running his own slush fund and receiving cash donations in his office. Though in need of fine tuning, the Premier’s proposals are a step in the right direction.
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