Inter-jurisdictional comparison No 1:
Ministerial Codes of Conduct/Ethics
Background
Stand alone Ministerial Codes of Conduct or Ethics have been developed in most states over the last 20
years in recognition that Ministers have wide discretionary powers and the need for high standards
required of them in the execution of their public duties.
Each Code provides guidance to Ministers on how they should act and arrange their affairs to uphold
the standards. There are variations on the application of the Codes not just to Ministers but also to
Parliamentary Secretaries.
Australia
Queensland
In Queensland the Ministerial Handbook and a Code of Ethics was introduced in 1989. Neither the
Ministerial Handbook nor the Ministers’ Code of Ethics are legislatively based. Amendments are
approved by Cabinet.
The Queensland Ministerial Handbook assists Ministers, Parliamentary Secretaries and their staff in the
running of Ministerial Offices and is designed to act as a single, simple and user friendly reference. The
Handbook sets out the common policies, practices and procedures to be adopted in Ministerial Offices
with respect to financial management, human resource management, provision of accommodation,
assets, entertainment, travel, gifts, information technology, security, and other policy issues relating to
the functioning of Ministerial Offices. The Minister’s Code of Ethics references policies in the
Ministerial Handbook.
Most recent changes to the Ministers’ Code of Ethics (2008 and 2009) implemented the restrictions on
shareholdings and directorships to Ministers and Parliamentary Secretaries, expanded the application of
the whole Code to not only Ministers but Parliamentary Secretaries and expanded the post employment
arrangements to reflect the introduction of the Queensland Contact with Lobbyists Code.
The Ministers’ Code of Ethics covers such matters as accountability, fairness, integrity, conflicts of
interest, responsibility, transparency, directorships, shareholdings and post ministerial employment.
The Queensland Ministers’ Code of Ethics is the most stringent in Australia by the application of
shareholdings having to be divested by partners of Ministers and Parliamentary Secretaires except in
certain circumstances.
Cabinet responsibilities are separately defined within the Queensland Cabinet Handbook.
The Handbooks and Code are publicly available on the internet.
Commonwealth
In 2008, the Government replaced the guide on Key Elements of Ministerial Responsibility last issued
in 1998 with the Standards of Ministerial Ethics. The Prime Minister amends and approves the Code.
Key changes to the Standards included post separation employment restrictions (18 months), Ministers
are to divest themselves of all shareholdings other than in restricted circumstances, the establishment of
a Register of Lobbyists and restricted dealings and prohibiting electoral fund raising at The Lodge and
Kirribilli House.
The Standards covers such matters as outlining the principles, integrity, directorships, shareholdings,
family members, other forms of employment, gifts, employment of family members, post ministerial
employment, fairness, accountability, responsibility and contact with Lobbyists.
These Standards are publicly available on the internet.
New South Wales
New South Wales has a Ministerial Code of Conduct which is not publicly available. The Code
addresses such matters as accountability, fairness, equity, conflicts of interest and shareholdings,
transparency, divestiture of directorships and post separation employment provisions.
Victoria
In Victoria the Code of Conduct that applies to Ministers is part of the Members of Parliament (Register
of Interest) Act 1978 (Vic). The Code addresses generically the responsibility of Members, public duty
and involvement in conflicting private interests, not taking advantage of confidential information,
disclosure of pecuniary interests and conflicts of interest.
Victoria is currently reviewing its Act and invited submissions on the following:
 the standards of conduct expected of Members of Parliament (MPs) in Victoria;
 the types of interests MPs or their families should have to disclose on the register; and
 whether there should be an independent person to advise MPs about ethical issues related to the
code of conduct or the register of interests.
Western Australia
Western Australia has a stand alone Ministerial Code of Conduct which is regularly updated. Similar to
Queensland it covers matters on conflicts of issue, declaring pecuniary and other interests, use of
confidential information, post separation employment and divesting shareholdings and directorships.
The code is published on the internet.
Also included in the Code are other matters associated with Ministers’ duties including, ministerial
expense, hospitality and gifts, travel, relations with the Public Service, record keeping, caretaker, staff,
corruption and crime commission, and declarations of interest.
Western Australia also has a Ministerial Handbook.
South Australia
South Australia also has a stand alone Ministerial Code of Conduct. The Code outlines, reputation,
honesty, fairness in decision making, accountability, conflicts of interest, prohibition of
product/services endorsement for personal gain, divestment of shareholdings and Directorships,
employment of relatives, gifts, use of information obtained in the course of official duties, post
separation employment, relation to public service and caretaker conventions. This Code is publicly
available on the internet.
The Code also identifies relevant legislation applying to the conduct of Ministers and all Members of
the South Australian Parliament (including Ministers).
Tasmania
The Tasmanian Code of Conduct applies to Government Members of Parliament covering matters
related to Cabinet, integrity, conflicts of interest, gifts, fairness and equity, expenditure and the seven
principles of public life for holders of public office (selflessness, integrity, objectivity, accountability,
openness, honesty and leadership) drawn from the UK Committee on Standards in Public Life.
The Code also details specific provisions such as requirements of the Constitution Act 1934 (Tas),
criminal offences, disclosure of interests, members’ entitlements and the Tasmanian Legislative
Assembly’s Code of Ethical Conduct.
This Code is publicly available on the internet.
Northern Territory
The Northern Territory applies the Members’ Code of Conduct and Ethical Standards to Ministers. It is
intended to support legislation and inform the public at large about the standards of ethics and conduct
in office which generally applies to Members of the Northern Territory Legislative Assembly. It
outlines the general principles including integrity, accountability, responsibility and the public interest,
as well as details conflicts of interests and declarations, post employment requirements, use of
confidential information, gifts, contracts and other business relationships. It is not as detailed as other
jurisdictions however the similar principles apply including responsibility for resources at public
expense and recognition of the Public Service. It is not yet publicly available.
Australian Capital Territory
The Australian Capital Territory Government has a stand alone Code of Conduct for Ministers.
Ministers are personally responsibly for complying with the Code and for justifying their actions and
conduct in Cabinet and the Legislative Assembly.
The Code outlines the conformity with the principles of accountability and financial and collective
responsibility, limitations on employment of relatives, respect for persons, relations with the Public
Service, caretaker, integrity, conflicts of interests, divestment of interests in shares, use of information
obtained in the course of public office, assets, gifts and benefits, travel, accommodation and hospitality,
post separation employment, due diligence, use of public property. This code also provides definitions
for immediate family, domestic partner and close relatives as referenced in the Code. The code is
published on the internet.
International
United Kingdom
The United Kingdom has a stand alone Ministerial Code which was first publicly published as
Questions of Procedures for Ministers in 1992 and has become a set of rules for Ministers and is subject
to revision. It has become the convention for the Code to be released at the beginning of a new
administration and at a new parliament.
The Prime Minister amends and approves the Code. Ministers are expected to observe the Seven
Principles of Public Life and a series of principles of Ministerial conduct. The Code covers matters
around Cabinet, influence over Civil Service and public appointments (and not abusing them for
partisan purposes), ministers and their departments and civil servants, use of government property,
private interests, actual or perceived conflicts of interest and declarations, relinquish other public
appointments and the role with non-public bodies, gifts and hospitality, post separation employment,
travel and media associated with presentation of policy. The Code is published on the Internet.
Canada
The Canadian Government has legislated most of the details captured by both the United Kingdom and
Australian Governments codes of conduct/ethics under the Conflicts of Interest Act.
Provisions apply to Members of the Canadian Legislative Assembly, Ministers and former Ministers.
Details within the legislation include disclosures of private interests, not holding shares and
directorships, post separation employment, conflicts of interest, duties as part of the Executive Council,
public disclosure statements and enforcement provisions.
Inter-jurisdictional comparison No 2:
Post Separation Employment
Background
The issue of interaction and relationships between former Ministers and current governments
has become increasingly contentious in recent years. A number of cases have attracted public
attention due to former Ministers taking up positions within the private sector or using their
influence to lobby Government.
Legal obligations were already placed on Ministers and public servants not to disclose
confidential information such as Cabinet-in-Confidence information. Unlawful disclosure of
such information may constitute an offence under section 85 of the Criminal Code, the Public
Sector Ethics Act 1994 or constitute official misconduct under the Crime and Misconduct Act
2001. Offences under the Criminal Code continue to apply post-separation. However, beyond
the legal constraints, there may be a public perception that confidential information could be
disclosed to a prospective employer or that an employer may receive preferential treatment
through association with a former Minister or chief executive.
Australia
Queensland
Under the Queensland Contact with Lobbyists Code, Ministers are required to undertake that,
for a two year period (or for Parliamentary Secretaries, for an eighteen month period) after
ceasing to be a Minister, they will not lobby, advocate or have business meetings with
members of the government, parliament or public service on any matters on which they have
had official dealings as a Minister in their last two years in office.
In addition to the requirements in the Lobbyists Code, post separation employment provisions
(including restrictions on current Ministers and Parliamentary Secretaries meeting people in
their quarantine period) are also reflected in the Ministers’ Code of Ethics.
The Lobbyists Code also provides that persons who have been employed as a chief executive,
senior executive, Ministerial staff member and persons employed at chief executive officer and
senior executive service equivalent levels within a public sector entity shall not, for a period of
eighteen months after they cease public sector employment, engage in lobbying activities
relating to any matter that they had official dealings within their last eighteen months in public
sector employment.
Again, post separation employment provisions (including restrictions on current public
servants and Ministerial staff meeting people in their quarantine period) are also contained
within the Code of Conduct for Ministerial staff and departmental codes of conduct,
established under the Public Sector Ethics Act 1994.
Commonwealth
Post separation employment provisions for Ministers/Parliamentary Secretaries are contained
within the Commonwealth Standards of Ministerial Ethics and are complemented by specific
provisions prohibiting lobbying activity within the Commonwealth Lobbying Code of Conduct.
The Standards provide that Ministers and Parliamentary Secretaries must undertake that, for an
18 month period after ceasing to hold office, they will not lobby, advocate or have business
meetings with members of the government, parliament, public service or defence force on any
matters on which they have had official dealings with in their last 18 months in office.
The Lobbying Code of Conduct provides that persons employed in the offices of Ministers or
Parliamentary Secretaries under the Members of Parliament (Staff) Act 1984 at adviser level
and above, members of the Australian Defence Force at colonel level or above (or equivalent),
and agency heads or persons employed under the Public Service Act 1999 in the senior
executive service (or equivalent), shall not, for a period of 12 months after they cease their
employment, engage in lobbying activities relating to any matter that they had official dealings
with in their last 12 months of employment.
Through codes of conduct, restrictions are placed on current public officials from meeting with
people in their quarantine period.
New South Wales
The Ministerial Code of Ethics (this is not publicly available) and the Code of Conduct and
Ethics for Public Sector Executives cover post separation employment provisions in New
South Wales.
The Ministerial Code of Ethics indicates that Ministers need to be aware of the risks of
conflicts of interest, or perceived conflicts of interest, which might arise when considering
(either while in office or after leaving office) offers of employment or engagement to be
accepted after the Minister leaves office. Similar issues arise in circumstances where a
Minister proposes to establish a business to provide services to third parties.
Ministers who, while in office, are considering an offer of post-separation employment or an
engagement or who are proposing to provide services after they leave office to third parties
(including establishing a business to provide such services) must obtain advice from the
Parliamentary Ethics Adviser before accepting any employment or engagement, or providing
services to third parties which relates or relate to their portfolio responsibilities (including
portfolio responsibilities held during the previous two years of Ministerial office).
Former Ministers must also obtain advice from the Parliamentary Ethics Adviser before
accepting any employment or engagement or providing services to third parties (including
establishing a business to provide such services) within the first year of leaving Ministerial
office, which relates or relate to their former portfolio responsibilities during the last two years
in which they held Ministerial office. This requirement does not apply to any employment or
engagement by the Government.
The Code of Conduct and Ethics for Public Sector Executives states that executives who move
to private employment are requested to abstain from working on or contributing to a matter that
they had previously been responsible for or involved in.
Victoria
The Code of Conduct for Members established under the Members of Parliament (Register of
Interests) Act 1978 provides that members shall not advance their private interests by use of
confidential information gained in the performance of their public duty.
There are no specific restrictions on dealings with government, post-employment.
South Australia
The Ministerial Code of Conduct states that ministers shall, within 14 days of taking up office
provide a written undertaking to the Premier that they will not, for a two year period after
ceasing to be a Minister, take employment with, accept a directorship of, or act as a consultant
to any company, business or organisation with which they had official dealings as Minister in
their last 12 months in office and which has dealings with the government (e.g. is in or in the
process of negotiating a contract or is in receipt of subsidies, benefits or loans from the
government) without the prior written consent of the Commissioner for Public Employment in
consultation with the Premier.
This restriction does not apply to an unpaid appointment in a non-commercial organisation or
appointment in the gift of the Government.
If the Commissioner for Public Employment decides that an appointment could lead to public
concern that the statements and decisions of the Minister, when in Government, have been
influenced by the hope or expectation of future employment with the company or organisation
concerned, or that an employer could make improper use of official information to which a
former Minister has had access, the Commissioner may withhold his or her consent or
recommend that the former Minister stand aside from participating in certain activities of the
employer for a two year period.
Western Australia
The Ministerial Code of Conduct states that Ministers leaving government should exercise care
in taking up employment or business activities in the period immediately after leaving
government. In particular, they should take care in accepting offers of employment from bodies
which the government has dealings with (e.g. is in or in the process of negotiating a contract or
is in receipt of subsidies, benefits or loans from the government).
In all areas, confidential information gained during office must not be used and care should be
taken to ensure that preferential treatment for the new employer or the business is not obtained
by the use of contacts and personal influence by the former Minister.
There are no specific restrictions on dealings with government, post-employment.
Tasmania
Post-separation employment provisions are contained within the Lobbying Code of Conduct,
which comes into operation on 1 September 2009.
The Lobbying Code of Conudct states that persons who, after 1 September 2009, retire from
office as a Minister or a Parliamentary Secretary, shall not, for a period of 12 months after they
cease to hold office, engage in lobbying activities relating to any matter that they had official
dealings with in their last 12 months in office. The Code also states that persons who were,
after 1 September 2009, employed as a head of agency under the State Service Act 2000 shall
not, for a period of 12 months after they cease their employment, engage in lobbying activities
relating to any matter that they had official dealings with in their last 12 months of
employment.
The Code of Conduct – Government Members of Parliament states that Members must not take
personal advantage of or private benefit from information that is obtained in the course of, or
as a result of, their official duties or positions, and that is not in the public domain even after
leaving office.
Members of the Assembly, when leaving public office and when they have left public office,
must not take improper advantage of their former office.
Northern Territory
There are no specific post-separation employment provisions for Ministers or Parliamentary
Secretaries. However, the Members’ Code of Conduct and Ethical Standards states that
Members of the Assembly are required, for a period of one year after ceasing to be a Member,
not to represent or take up employment or a directorship with, nor act as an adviser or
consultant to, any company or business interest with which they had direct contact or
involvement in their capacity as a Member of the Assembly in their last one year in office.
On leaving office, former Members are prohibited by the Ethics in Government Act from
taking personal advantage of official information to which they had privileged access as a
Member. A Member shall not hold or continue to hold a contract for the provision of services
to or for a government body, the public service, or the Assembly.
Australian Capital Territory
The Code of Conduct for Ministers states that Ministers should exercise care in taking up
employment or business activities in the period immediately after leaving government. Special
care should be taken in acceptance of offers of employment from, or becoming engaged in the
internal management of the affairs of, persons, companies or other bodies which the
government has dealings with (e.g. is in or in the process of negotiating a contract or is in
receipt of subsidies, benefits or loans from the government).
Where a Minister receives an offer of employment and intends to leave the government in
order to take up the offer, the Minister should immediately disclose his or her acceptance of the
offer to the Chief Minister, or in the case of the Chief Minister, to Cabinet. The Chief Minister,
or Cabinet where appropriate, has the discretion to alter ministerial arrangements in light of
any offer accepted.
In all areas, confidential information gained during office will not be used and care should be
taken to ensure that preferential treatment for the new employer or the business is not obtained
by the use of contacts and personal influence by the former Minister.
United Kingdom
The Ministerial Code states that, on leaving office, Ministers must seek advice from the
independent Advisory Committee on Business Appointments about any appointments or
employment they wish to take up within two years of leaving office, apart from unpaid
appointments in non-commercial organisations. Ministers are expected to abide by the advice
of the Committee.
Canada
The Lobbying Act prohibits certain “public office holders” and “designated public office
holders” from lobbying for a period of five years after leaving public office. The
Commissioner of Lobbying is empowered to grant exemptions to the five-year prohibition on
lobbying in certain situations described in the Act.
A “public office holder” is defined under the Act as any officer or employee of the federal
government including members of the Senate or House of Commons and members of their
staff, Governor in Council appointees, ministers, officers, directors or employees of any federal
board, commission or tribunal, members of the Canadian Armed Forces and members of the
Royal Canadian Mounted Police.
“Designated public office holders” encompasses those officials who are responsible for
high-level decision making in government and includes, but are not limited to: Ministers,
Ministers of State and their exempt staff; Deputy Heads; Associate Deputy Ministers; Assistant
Deputy Ministers; any positions that have been designated by regulation, such as certain senior
members of the Canadian Forces, and others.
Inter-jurisdictional comparison No 3:
Register of Members’ Interests
Background
The purpose of a Register of Members’ Interests is to place on the public record any pecuniary
or other relevant interests of a Member of Parliament which may give rise to a conflict of
interest or a perception of a conflict of interest between a Member’s private interests and the
public interest.
A Register of Member’s Interests seeks to provide information which might be thought by
others to affect a Member’s public duties, or to influence their speeches or votes in the
Parliament concerned. Every Parliament in Australia (federal, state and territory) has
established a Register of Members’ Interests.
A Register of Members’ Interests is not an end in itself. It is simply one mechanism that has
evolved as a means to strengthen the accountability of Members. These registers are limited
though to the quality of the information that is lodged by each Member. However, failure by a
Member to comply with the relevant rules can have serious consequences for the Member,
ranging from political embarrassment to sanction by the Parliament (e.g. suspension or fine).
The Queensland Parliament first established a Register of Members’ Interests in April 1989.
As with other Australian jurisdictions, Queensland’s Register of Members’ Interests is
administered by the Parliament, not the Government. The Clerk of the Parliament (the Clerk) is
the Registrar of Members’ Interests and Members are required to lodge their written statements
of interests with the Clerk.
In Queensland, the Clerk is also the final authority on whether a matter is required to be
registered or not. If a Member is in any doubt about registering a matter they should ultimately
seek and rely on the advice of the Clerk before that of departmental officers, Ministerial
advisers or other officials.
Queensland
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Register established by resolution of the House as a Schedule to the Standing Orders
The Clerk of the Parliament is the registrar
Register available for public inspection
Items that Members are required to disclose include: sources of income over $500;
shareholdings and other investments; positions held as a company officer; interests in
partnerships and real estate; liabilities, debentures, managed funds, savings or
investment accounts; gifts received valued over $500; the source and nature of
sponsored travel; other assets over $5,000; and memberships of organisations
Parliament of Australia (House of Representatives)
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Register established by resolution of the House and incorporated in Standing Orders
The Deputy Clerk of the Parliament is the registrar
Register available for public inspection
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Items that Members are required to disclose include: sources of other substantial
income; real estate holdings; shareholdings, debentures, bonds and other investments,
directorships, liabilities, assets valued over $7,500; gifts valued over $750 from official
sources and $300 from other sources; sponsored travel or hospitality valued over $300;
memberships
New South Wales (Legislative Assembly)
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Register established by the Constitution (Disclosure by Members) Regulation 1983
made under the Constitution Act 1902
The Clerk of the Legislative Assembly is the registrar
Register available for public inspection
Items that Members are required to disclose include: sources of income exceeding $500
in value; real estate holdings; gifts valued over $500; financial or other contributions to
travel valued over $250; details of shareholdings, partnerships, trusts and memberships;
and debts over $500
Victoria (Legislative Assembly)
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Register established under the Members of Parliament (Register of Interests) Act 1978
The Clerk of the Legislative Assembly is the registrar
Register published annually but not otherwise available for public inspection
Items that Members are required to disclose include: remuneration or other income over
$500; directorships of companies; memberships of organisations; details of trusts and
real estate holdings; gifts valued over $500; and financial or other contributions to
travel
Tasmania (House of Assembly)
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Register established under the Parliamentary (Disclosure of Interests) Act 1996
The Clerk of the House of Assembly is the registrar
Register available for public inspection
Items that Members are required to disclose include: any remuneration or other income;
directorships of companies; memberships of organisations; details of shareholdings and
real estate holdings; any gifts received; and financial or other contributions to travel
South Australia (House of Assembly)
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Register established under the Members of Parliament (Register of Interests) Act 1983
The Clerk of the House of Assembly is the registrar
Register available for public inspection
Items that Members are required to disclose include: remuneration or other income over
$1,000; directorships of companies; memberships of organisations; details of real estate
holdings; gifts received over $750 in value; and financial or other contributions to
travel over $750
Western Australia (Legislative Assembly)
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Register established under the Members of Parliament (Financial Interests) Act 1992
The Clerk of the Legislative Assembly is the registrar
Register available for public inspection
Items that Members are required to disclose include: remuneration or other income over
$500; directorships of companies; memberships of organisations; details of
shareholdings and real property holdings; gifts received over $500 in value; financial or
other contributions to travel over $500; and debts over $500
Northern Territory (Legislative Assembly)
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Register established under the Legislative Assembly (Disclosure of Interests) Act 2008
The Clerk of the Legislative Assembly is the registrar
Register available for public inspection
Items that Members are required to disclose include: remuneration or other substantial
sources of income; directorships of companies; memberships of organisations; details
of shareholdings and real property holdings; gifts received from official sources valued
over $750 and gifts received over $300 in value from other sources; sponsored travel
valued over $300; and details of liabilities
Australian Capital Territory (Legislative Assembly)
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Register established under a resolution of the Legislative Assembly titled ‘Declaration
of Private Interests of Members’. This resolution was passed in 1992 and has been
amended in 1998 and 2005
The Clerk of the Legislative Assembly is the registrar
Register available for public inspection
Members must register all gifts, payments, fees or rewards valued at more than $250
received from official sources, or at more than $100 where received from other than
official sources
New Zealand (House of Representatives)
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Register provided within the Standing Orders of the House of Representatives
The Deputy Clerk of the Parliament is the registrar. The Auditor-General reviews
returns received by the Deputy Clerk
Register available for public inspection
Items that Members are required to disclose include: all payments received;
directorships of companies; details of shareholdings and real property holdings; gifts
received valued over NZ$500; details of all travel including any sponsored travel;
debtors owing more than NZ$50,000; and creditors owed more than NZ$50,000
Canada (House of Commons)
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Requirement to disclosure interests included within the Standing Orders of the House
of Commons
Disclosure of interests to be made to the Conflict of Interest and Ethics Commissioner
appointed under the Parliament of Canada Act
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The Commissioner is to prepare a summary of each Member’s disclosures and make
that summary available for public inspection
Items that Members are required to disclose include: sources of income over
CAN$1,000; assets and liabilities that exceed CAN$10,000; shares, trusts and real
estate; and gifts or sponsored travel valued over CAN$500
United Kingdom (House of Commons)
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Requirement to disclose interests required in accordance with a resolution of the House
agreed to in 1974 and last amended in February 2009
The Register of Members’ Financial Interests is overseen and maintained by the
Parliamentary Commissioner for Standards
Register published soon after the beginning of a new Parliament and annually thereafter.
The current Register, with previous editions, is also available on the internet. Between
publications the Register is regularly updated electronically and is available for public
inspection
Items that Members are required to disclose include: all employment outside the House
and all sources of income; sponsorships greater than £1,000; gifts, benefits, hospitality
or sponsorships for travel valued above 1% of the annual salary of an MP (estimated at
£650 as at April 2009); shareholdings and real estate holdings, directorships and
memberships
Inter-jurisdictional comparison No 4:
Electoral Donations
Background
Political parties in Queensland are governed by the Electoral Act 1992. Under the Act, there
are few restrictions on how a party may raise funds, who a party may accept donations from
and there is no upper limit on the amount an individual or entity can donate. However, limits
are in place in relation to the disclosure of donations over a certain amount.
Other Australian jurisdictions have similar disclosure regimes in place to help ensure
transparency in the political donation process. The Australian Government also released a
green paper in December last year in relation to donations, funding and expenditure, which
may result in nationally consistent reform of donation laws.
This paper outlines the current and proposed electoral donation laws in Australian jurisdictions
and the United Kingdom and New Zealand for the purposes of comparison.
Queensland
In Queensland, the key accountability mechanism built into the Electoral Act 1992 is the
requirement to disclose, to the independent Electoral Commission Queensland, donations over
$1,000 from a single donor every six months. Where a donation over $1,000 is made during an
election campaign, the donation must be disclosed within 15 weeks of the election.
The Queensland Government also recently amended the Electoral Act 1992 to require that
where a donor contributes total donation/s of over $100,000 in any six month period, it must be
disclosed within 14 days of the donation which brings the total over $100,000. These
disclosures are publicly accessible for viewing through the Electoral Commission.
Commonwealth
The Commonwealth Electoral Act 1918 currently requires that donations over $10,900 be
disclosed. However, the Australian Government is in the process of reforming this Act via the
Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2008 (the
Political Donations Bill), which was introduced into the Senate on 15 May 2008.
The Political Donations Bill seeks to amend the election funding and financial disclosure
provisions of the Commonwealth Electoral Act 1918 and contains measures to ensure that more
donations are publicly reported, that they are reported in a more timely manner, and that certain
donations are prohibited. Specifically, the Political Donations Bill includes provisions which
would:
 reduce the threshold above which donations must be disclosed, from $10,900 (indexed to
the Consumer Price Index annually) to $1,000 (non-indexed);
 require people who make donations above the threshold to candidates, and agents of
candidates and Senate groups to furnish a return within 8 weeks after polling day;
 require people who make donations to registered political parties, agents of registered
political parties, the financial controller of an associated entity, or people who have
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incurred political expenditure to furnish a return within 8 weeks after 31 December and 30
June each year rather than following each financial year; and
ensure that for the purposes of the $1,000 threshold and the disclosure of donations, related
political parties are treated as the one entity.
The Australian Government is also currently undertaking a green paper process on electoral
reform. The first green paper, which considers donations, funding and expenditure, was
released in December 2008.
New South Wales
In New South Wales, when a political donor’s donations total more than $1,000 during an
election period, the donor is required to disclose the details to the Election Funding Authority.
Recent changes to the Election Funding and Disclosures Act 1981 also include:
 that candidates and groups must be registered with the Election Funding Authority before
accepting political donations;
 six monthly disclosure for parties, MPs and councillors;
 a ban on certain ‘in kind’ donations over $1,000; and
 new offences for failing to lodge a declaration and making a false statement.
Victoria, South Australia and Tasmania
Victoria, South Australia and Tasmania do not have political donation disclosure regimes in
place.
Western Australia
In Western Australia, under the Electoral Act 1907, candidates and groups of candidates are
required to lodge election disclosure returns, documenting donations received and electoral
expenditure. The threshold that applies is $1,800.
Northern Territory
Under the Electoral Act 2004, the Northern Territory requires political parties and associated
entities to lodge annual disclosure returns documenting their total receipts, expenditure and
debt. The Northern Territory applies a $1,500 threshold. Similarly, donors to political parties
are required to lodge annual disclosure returns documenting donations above a set threshold of
$1,500 or more.
Australian Capital Territory
Under the Electoral Act 1992, political parties, candidates, associated entities and donors are
required to disclose donations and expenditure over a $1,000 threshold.
Canada
In Canada, donations from corporations, unions, associations and groups are banned. Caps
also apply to donations to political parties and candidates. Donors are permitted to donate up
to C$1,100 in a calendar year to political parties and candidates, but cannot make cash
donations higher than C$20. Where cash donations over this amount are made, the donor must
obtain receipts.
Canada also requires political parties and candidates to lodge annual returns setting out
donations received within four months of an election. These returns are publicly available
within one year of the election.
Given that there is a ban on donations from corporations and unions, etc, there is a greater need
for public funding to fund elections. To this end, in Canada, public funding on a quarterly
basis in addition to public funding for elections is provided on the basis of reimbursement of
political parties and candidates subject to proof of their expenditure. In 2007-08, Elections
Canada provided approximately C$28.2 million in public funding for such purposes.
United Kingdom
In the United Kingdom, a ban applies to anonymous donations of more than £200, however no
caps apply to permissible donations. The UK system also applies certain restrictions on
particular categories of organisations before they are permitted to make electoral donations.
For example, trade unions must ballot their members every ten years to raise and contribute
funds.
Quarterly returns by political parties of donations are required normally, and weekly returns
during election campaigns. In addition, members of political parties and members of
parliament must disclose donations to each other.
New Zealand
In New Zealand, anonymous and overseas donations of up to NZ$1,000 are allowed.
Anonymous donations over NZ$1,000 can be given to a registered political party or third party
through the New Zealand Electoral Commission. Limits apply to the amounts that can be
donated from a single source and received by a party or a third party using this approach. This
mechanism is not available to candidates who must forfeit to the Government the balance of
any anonymous donation in excess of NZ$1,000.
Political parties must lodge returns each year setting out donations over NZ$1,000 received in
a calendar year. The returns must be lodged by 30 April of the following year and an auditor’s
report of the return is also required. Where donations from the same donor are made totalling
more than NZ$20,000 in a twelve month period, this must be disclosed by parties within 10
working days of receipt of the donation.
Candidates must disclose details of donations received over NZ$1,000, and third parties must
disclose donations over NZ$5,000. Such returns must be lodged within 70 working days after
polling day, and are made public within three days of lodgement.
Inter-jurisdictional comparison No 5:
Lobbyist Codes and Registers
Background
Lobbying is, by its very nature, a necessary part of a democratic system of government – every
person, organisation or interest group has a right to be heard by those in government who make
decisions that affect the everyday lives of the community. Lobbying can play a useful function
in facilitating access to government for a range of bodies, including charitable organisations or
ordinary citizens. The ordinary citizen or charitable organisation has as much right to lobby
the government as does a multinational organisation with almost unlimited resources.
In recent times, there has been increasing community concern about the relationship between
lobbyists and government and an expectation of clear separation between lobbyists, the
organisations they represent, and government decision making. As a result, a number of
jurisdictions in Australia have established codes of conduct to regulate lobbying and a publicly
available register of lobbyists to increase accountability and transparency.
Western Australia was the first State in Australia to establish a Lobbyists Code of Conduct and
Lobbyists Register in 2006. Western Australia was followed by the Commonwealth which
established a Lobbyists Code of Conduct and Register of Lobbyists in July 2008.
New South Wales established the New South Wales Lobbyists Code of Conduct and Lobbyist
Register in February 2009 followed by Queensland which established the Queensland Contact
with Lobbyists Code and Queensland Register of Lobbyists in March 2009.
The Tasmanian Lobbying Code of Conduct and Register of Lobbyists will come into effect on
1 September 2009. Victoria is also currently undertaking action to implement a lobbying code
and register of lobbyists.
In Australia, all lobbing codes of conduct are very similar and provide the framework and
requirements for contact between lobbyists and government officials. All registers of lobbyists
are publicly available documents which provide business details of lobbying companies and
details of current third party clients engaged by lobbyists. Western Australia, New South
Wales and the Commonwealth provide an online registration and change request facility.
Queensland is taking action to make online registration and provision of change requests
available electronically.
Canada continues to be the most stringent in terms of the regulation of standards in the
lobbying industry.
Queensland
The Queensland Contact with Lobbyists Code and Queensland Register of Lobbyists are
administered by the Department of the Premier and Cabinet with the Director-General as the
Registrar. These documents are publicly available on the Department of the Premier and
Cabinet website.
The Queensland Contact with Lobbyists Code defines a professional lobbyist as any person,
body corporate, unincorporated association, partnership or firm whose business includes being
contracted or engaged to represent the interests of a third party to a Government representative.
However, for these purposes, a lobbyist does not include:
 associations or organisations constituted to represent the interests of their members (for
example, employer groups, trade unions or professional associations);
 religious or charitable organisations;
 professionals (such as accountants and lawyers) who as part of their day to day professional
services to a client, represents that client's views to a Government representative; and
 full-time employees of an organisation representing the interests of their organisation.
The Commonwealth and all States that currently have a lobbyists code use a similar definition
of a lobbyist.
The Queensland Contact with Lobbyist Code defines a Government representative as a
Minister, Parliamentary Secretary, Ministerial Staff Member or a member of the public service.
Before an individual can be included on the Register, a statutory declaration is required to the
effect that the individual has never been sentenced to a term of imprisonment of 30 months or
more and has not been convicted, as an adult, in the last ten years, of an offence, one element
of which involves dishonesty, such as theft or fraud.
The Code requires that a lobbyist must submit updated Lobbyist's Details in the event of any
change to the Lobbyist's Details as soon as practicable, but no more than 10 business days after
the change occurs. It also provides that lobbyists are required to annually re-confirm the
information contained on the Register and provide new statutory declarations for all lobbyists
within ten business days of the end 30 June each year.
In 2009, success fees received by lobbyists from third party clients gained prominence after the
media reported on large amounts being paid to former government ministers, now lobbyists,
for their efforts in helping corporations secure lucrative government contracts.
The Queensland Contact with Lobbyists Code defines a success fee as “money or other
remuneration payable to a person that is wholly or partly contingent on the person’s degree of
success in securing a Government contract for a bidder”.
Queensland is the only State that requires lobbyists to disclose details of fees and success fees
received from third party clients.
In July 2009, the Queensland Government announced that it would ban the payment of success
fees or contingency fees being paid or received in connection with lobbying the Queensland
Government. Action is currently being undertaken on this matter.
In August 2009, the Queensland Government announced its intention to prohibit individuals
registered as a lobbyist on the Register from serving on Queensland government bodies.
Individuals who hold these dual roles have until close of business on 7 September 2009 to
choose which role they wish to continue. Queensland is the only State that has a policy on dual
roles.
As at 25 August 2009, 70 lobbying companies were on the Register.
Commonwealth
The Commonwealth Lobbying Code of Conduct and Register of Lobbyists are administered by
the Department of the Prime Minister and Cabinet with the Secretary of the Department as the
Registrar. These documents are publicly available on the Department of the Prime Minister
and Cabinet website.
A Government representative is defined as a Minister, a Parliamentary Secretary, a person
employed or engaged by a Minister or a Parliamentary Secretary under the Members of
Parliament (Staff) Act 1984, an Agency Head or a person employed under the Public Service
Act 1999, a person engaged as a contractor or consultant by an Australian Government agency
whose staff are employed under the Public Service Act 1999 or a member of the Australian
Defence Force.
Persons may not be registered if they have ever been sentenced to a term of imprisonment of 30
months or more, or have been convicted in the last ten years (as an adult) of an offence related to
dishonesty. A statutory declaration to this effect is required for registration as a lobbyist.
The Commonwealth Lobbying Code of Conduct provides that lobbyists shall submit updated
lobbyist’s details in the event of any change to the lobbyist’s details as soon as practicable but
no more than 10 business days after the change occurs. It also provides that all lobbyist must
provide to the Secretary within 10 business days of 30 September, 31 January and 31 March of
each year, confirmation that the lobbyist’s details are up to date.
The lobbyist must also provide to the Secretary, within 10 business days of 30 June 2009 and
each year thereafter, confirmation that the lobbyist’s details are up to date together with
statutory declarations for all lobbyists.
As at 25August 2009, 276 lobbying companies were on the Commonwealth Register.
New South Wales
The New South Wales Lobbyists Code of Conduct and Lobbyists Register are administered by
the Department of the Premier and Cabinet and the Director-General is the Registrar. These
documents are publicly available on the Department of the Premier and Cabinet website.
The New South Wales Lobbyists Code of Conudct defines a Government Representative as a
Minister, Parliamentary Secretary, Ministerial Staff Member, or person employed, contracted
or engaged in a public sector agency (which means a Division of the Government Service as
defined in section 4A of the Public Sector Employment and Management Act 2002) other than
staff employed under section 33 of the Public Sector Employment and Management Act 2002.
Before an individual can be included on the Register, a statutory declaration is required to the
effect that the individual has never been sentenced to a term of imprisonment of 30 months or
more and has not been convicted, as an adult, in the last ten years, of an offence, one element
of which involves dishonesty, such as theft or fraud.
The Code requires that a registered lobbyist must submit updated lobbyist’s details in the event
of any change to the lobbyist’s details as soon as practicable, but no more than 10 business
days after the change occurs. It also provides that lobbyists must provide to the Director
General within 10 business days of 30 September, 31 January and 31 March of each year,
confirmation that the lobbyist’s details are up to date.
Lobbyists must also provide to the Director General, within 10 business days of 30 June 2009
and each year thereafter, confirmation that the lobbyist’s details are up to date together with
statutory declarations for all lobbyists.
The New South Wales Government is the only State that provides an online training module
which covers the key features of the Code and gives government representatives in particular
an understanding of the requirements of the Code.
As at 25 August 2009, 109 lobbying companies were on the New South Wales Register.
Victoria
Lobbying is currently unregulated in Victoria. However, on 29 August 2009, Victorian Premier
John Brumby announced that a register and code of conduct will be in place in Victoria from 1
December 2009.
Under the code, lobbyists will be required to disclose who they are acting for, what issue they
are representing them on and when they contact a minister, adviser or senior public servant. It
will bar Ministers for 18 months after leaving Cabinet from engaging in professional lobbying
in relation to any matter on which they had official dealing during their last 18 months in
Cabinet. Senior public servants and ministerial advisers will be barred from lobbying for one
year after they have left their employment.
Western Australia
The Western Australian Lobbyists Code of Conduct and Lobbyists Register are administered
by the Western Australian Public Sector Commission. These documents are publicly available
on the Public Sector Commission website.
The Western Australian Lobbyists Code of Conduct defines a Government Representative as a
Minister, Parliamentary Secretary, Ministerial Staff Member or person employed, contracted or
engaged by a public sector agency.
Western Australia does not require the provision of a signed statutory declaration concerning
the lobbyist’s criminal history.
The Code provides that a lobbyist shall submit updated lobbyist’s details to the Public Sector
Commissioner in the event of any change to the lobbyist’s details. However, a timeframe for
submitting changes is not stipulated. It also provides that lobbyists must provide to the Public
Sector Commissioner within 10 business days of each of 30 March, 30 June, 30 September and
30 December each year a confirmation that their lobbyists details are up to date.
As at 25 August 2009, 90 lobbying companies were on the Western Australia Register.
Tasmania
Lobbying is currently unregulated in Tasmania.
However, from 1 September 2009, any lobbyist who wishes to contact a Tasmanian
Government representative for the purpose of lobbying activities must be registered on the
Register of Lobbyists and must agree to comply with the requirements of the Lobbying Code
of Conduct.
The Code and Register will be administered by the Tasmanian Department of the Premier and
Cabinet with the Secretary of the Department as the Registrar. These documents will be
publicly available on the Department of the Premier and Cabinet website.
The Code defines a Government Representative as a Minister, a Parliamentary Secretary, a
Member of Parliament of the political party (or parties) that constitute the Executive
Government of the day, a person employed as a Ministerial adviser, or a Head of Agency
appointed under the State Service Act 2000. Tasmania is the only state that includes Members
of Parliament in the definition of Government Representative.
A condition of registration as a lobbyist is the provision of a statutory declaration to the effect
that the individual has never been sentenced to a term of imprisonment of 24 months or more,
and has not been convicted, as an adult, in the last 10 years, of an offence involving dishonesty
or any crime as defined by section 1 of the Criminal Code Act 1924.
The Code provides that a lobbyist is not required to list a body corporate as a client on the
register if disclosure of the lobbyist’s relationship with the body corporate might result in
speculation about a pending transaction involving the body corporate and that transaction has
not previously been disclosed by the body corporate in accordance with its continuous
disclosure obligations under Chapter 6CA of the Corporations Act 2001. Where the lobbyist
relies on this clause, they must advise any Government Representative they are lobbying of
such reliance and also the anticipated date when they will add their client to the register. The
lobbyist must add the name of their client to the register promptly once the market sensitivity
has passed.
The Code requires that lobbyists submit updated details to the Secretary in the event of any
change to their details as soon as practicable but no more than 10 business days after the
change occurs. It also provides that lobbyists must provide to the Secretary within 10 business
days of 30 June and 31 December of each year, confirmation that the lobbyist’s details are up
to date, and that lobbyists must provide to the Secretary, within 10 business days of 30 June
each year, statutory declarations for all lobbyists.
South Australia, Australian Capital Territory and Northern Territory
Lobbying is unregulated in South Australia, the Australian Capital Territory and the Northern
Territory. There is no public register of lobbyists or rules governing this activity in these
jurisdictions.
United Kingdom
The lobbying industry in the United Kingdom has historically been self-regulated. In June
2007, the Public Administration Select Committee (PASC) launched an enquiry into “the
transparency of the lobbying industry, the effectiveness of recent attempts at self regulation,
and whether the rules for those in Parliament and Government should be changed.”
The PASC report was delivered in January 2009 and recommended the creation of a statutory
lobbyist register and the regulation of the lobbying industry by a single independent body with
robust outside input.
New Zealand
Lobbying is unregulated in New Zealand. There is no public register of lobbyists or rules
governing this activity.
Canada
The Canadian Lobbyists' Code of Conduct was introduced from 1 March 1997. The Code
complements the registration requirements of the Lobbying Act, which came into force on
2 July 2008, and which replaced the Lobbyists Registration Act 1989.
These measures are instituted as part of a broader Lobbyist registration system that is overseen
by the Office of the Commissioner of Lobbying of Canada.
Under the Lobbying Act, the Commissioner of Lobbying, an independent agent of Parliament,
is responsible for establishing and maintaining the Registry of Lobbyists, which includes
information about all registered lobbyists as well as their activities, as required under the Act.
The Commissioner is responsible for developing a Code and has the power to carry out
investigations for the purpose of ensuring compliance with the Act and the Code. The
Commissioner issues advisory opinions and interpretation bulletins regarding the Act.
Key elements of the Lobbying Act include:
 replacement of the position of Registrar of Lobbyists with that of Commissioner of
Lobbying, an independent agent of parliament, with expanded investigative powers and an
education mandate;
 a ban on making or receiving any payment or other benefit that is contingent on the
outcome of any consultant lobbyist's activity;
 extension from two to ten years of the period during which possible infractions or
violations under the Lobbying Act and the Lobbyists' Code of Conduct may be investigated
and prosecution may be initiated;
 doubling the monetary penalties for lobbyists who are found guilty of breaching the
requirements of the Lobbying Act; and
 a prohibition for up to two years on all lobbying activities for people convicted of offences
under the Act.
The Commissioner is required under the Act to prepare annual reports on the administration of
the information disclosure and public registry provisions of the Act and on administration of
the Code, which are tabled before Parliament.
This system requires public registration of lobbyists and monthly reporting by lobbyists of their
communications with public office holders.
Lobbyists are defined as individuals who are paid to communicate with federal public office
holders in regard to certain government decisions. The Act only covers people who are paid to
lobby. People who lobby on a voluntary basis are not required to register.
The Lobbying Act identifies three types of lobbyist:
 consultant lobbyists - people who are paid to lobby for clients;


in-house lobbyists (corporations) - employees of a business who lobby for their employer
as a significant part of their duties (20% or more); and
in-house lobbyists (organisations) - employees of not-for-profit organizations in which one
or more employees lobby. They work in settings where the collective time devoted to
lobbying for all those employees works out to be the same as a significant part of one
employee's duties (20% or more).
As at 25 August 2009, there were over 4,000 active lobbyists on the Register.
Inter-jurisdictional comparison No 6:
Success Fees paid to lobbyists
Background
In 2009, success fees paid to lobbyists have gained prominence after the media reported on
large amounts being paid to former government ministers, now lobbyists, for their efforts
helping corporations secure lucrative government contracts.
There is concern that the high amount of success fees being paid, coupled with the engagement
of ex-government ministers, has led to the perception, if not the reality, that large corporations
have privileged access to government and wield a disproportionate influence over the process
for granting of government contracts.
Lobbying is, by its very nature, a necessary part of a democratic system of government – every
person, organisation or interest group has a right to be heard by those in government who make
decisions that affect the everyday lives of the community. Lobbying can play a useful function
in facilitating access to government for a range of bodies, including charitable organisations or
ordinary citizens. The ordinary citizen or charitable organisation has as much right to lobby
the government as does a multinational organisation with almost unlimited resources.
However, when professional lobbyists and their clients are involved, issues of transparency and
accountability on the part of both the office holder and the lobbyist become relevant. The
purpose of such communication with elected representatives or public officials is to influence
decision making for a client or employer. Such influence may relate to legislative action,
changing regulations, or the awarding of government contracts.
Some lobbyists base part or all of the fee that they charge on the degree of success achieved
through their work. For example, if the government procurement contract that they are helping
to obtain is awarded to their client, they are paid in full. If not, they receive a lesser amount or
perhaps nothing at all. This type of arrangement is called a success fee because payment is
contingent on the success of the undertaking.
The Queensland Contact with Lobbyists Code (the Code) defines a success fee as “money or
other remuneration payable to a person that is wholly or partly contingent on the person’s
degree of success in securing a Government contract for a bidder”.
Success fees, contingency fees and conditional fees are also used by other professions, such as
solicitors who advertise their services on a “no win, no fee” basis. Similar payments are used
by industries that pay staff on retainers and their salaries are supplemented by bonuses, which
depend on their performances throughout the year.
The payment of such fees to lobbyists is controversial because they may give lobbyists an
incentive to test the boundaries of ethical and legal behaviour. For example, it is often argued
that a lobbyist whose fee is contingent on success has a greater incentive to “win at all costs”.
As a result, success fee arrangements may promote the use of improper means, such as
distorting relevant facts to ensure success. Impropriety in decision-making processes for
awarding government contracts can amount to official misconduct and is extremely serious.
In relation to government procurement processes, the cost of the success fee may also be
passed on to taxpayers, for example, where the cost of paying success fees are transferred to
government through higher costs for the delivery of services under a particular contract.
Even involvement of a lobbyist who is paid a success fee can compromise probity of process
by generating a perception that it is possible for some parties to influence the process in their
favour.
Queensland
The Government has already achieved some transparency in the lobbying process by
establishing the Lobbyists Register, which ensures lobbyists wishing to have contact with
Government Representatives must register and comply with the Code. The Register requires
lobbyists to disclose whether they are paid a success fee.
In addition to these, there are other mechanisms in place which assist public officers in
discharging their duties impartially, including the Public Sector Ethics Act 1994, Public
Service Act 2008, State Procurement Policy, and the Guide on Ethics, Probity and
Accountability in Procurement.
In July 2009, the Government announced that it would ban the payment of success fees or
contingency fees being paid or received in connection with lobbying the Queensland
Government. The proposed legislation will be based on the Canadian legislation, which bans
fees contingent on the award of government contracts, but also on arranging a meeting with a
public office holder and changes to legislation, regulation, policies and programs.
Commonwealth
The Commonwealth Lobbyists Code of Conduct and a Register of Lobbyists applies from 1
July 2008. The Code does not regulate the payment of success fees and lobbyists are not
required to disclose whether or not they are paid a success fee on the Register.
Western Australia
In 2006, Western Australia established a Lobbyists Code of Conduct and a Lobbyists Register.
Like the Commonwealth, WA does not regulate the payment of success fees and lobbyists are
not required to disclose whether or not they are paid a success fee on the Register.
However, in 2008 the Lobbying Disclosure and Accountability Bill 2007 was introduced
in the Western Australian Parliament in 2007 by Dr Constable MLA (the Bill lapsed
when Parliament was dissolved on 7 August 2008).
This Bill was confined to paid lobbyists, both employed lobbyists and consultants. The Bill
expressly does not apply to lobbying carried out by citizens on their own behalf. The
provisions of the Bill were concerned to ensure that professional lobbying activity that does
take place is disclosed and subject to independent scrutiny.
The Bill contained two principal features. The first was a requirement that all persons who
engaged in paid lobbying activity lodge returns with the Commissioner for Public Sector
Standards as to the nature of those lobbying activities. Separate requirements were imposed
upon persons who engage in lobbying activity as part of their employment with a particular
employer and those who are consultant lobbyists. The returns lodged pursuant to the provisions
formed a register of lobbying activity which is to be available to the public. The returns
included information relating to money or other remuneration payable in respect of the
lobbying activity that is contingent on the consultant lobbyist's degree of success in influencing
the matters.
The second feature of the Bill was to enable the Commissioner to investigate lobbying
activity by paid lobbyists. This enabled the Commissioner to investigate all aspects of the
propriety of lobbying activity and report the results of those investigations to Parliament.
South Australia
The South Australian Lobbying and Ministerial Accountability Bill which was tabled and read
for the first time on 13 November 2008 has two provisions relating to the use of success fees.
Clause 11 of the Bill requires the responsible Minister to prepare a code of conduct to be
observed by senior public officials within six months after the commencement of the Bill. Part
(2)(d) of the clause requires the code to contain “ a provision requiring a lobbyist engaged in
lobbying activity to disclose whether any remuneration is payable to the lobbyist in respect of
the lobbying activity (and, if so, whether such remuneration is wholly or partly contingent on
the lobbyist’s degree of success).”
Clause 12 of the Bill requires lobbyists to lodge quarterly returns disclosing, among other
things, “whether any remuneration payable in respect of the lobbying activity is wholly or
partly contingent on the consultant lobbyist’s degree of success in influencing the matters
referred to in the preceding subparagraphs.” The preceding subparagraphs refer to different
aspects of lobbying activity.
No further action on the Bill has occurred since November 2008.
New South Wales
While New South Wales has had a Lobbyist Code of Conduct and Lobbyist Register since
February 2009, these documents do not deal with the issue of success fees.
Other Australian states
No other state or territory regulates the payment of success fees.
Canada
The Canadian Lobbying Act came into force on 2 July 2008, replacing the Lobbyists
Registration Act of 1989.
The Canadian Lobbying Act 2008 bans the use of contingent fees (fees which are in whole or
part contingent on the outcome of lobbying) with consultant lobbyists. Both the payment of
contingent fees by corporations to consultant lobbyists and the receipt of contingency fees by
consultant lobbyists from corporations is banned. Consultant lobbyists are persons who are
hired to communicate on behalf of a client and do not include in-house lobbyists employed by
corporations or organisations.
The ban does not only apply to contingent fees paid in relation to success in government
procurement, but includes fees contingent on communications with public office holders: to
change federal laws, regulations, policies or programs; to obtain a grant, contribution or
contract; or to arrange a meeting between a public office holder and another person.
The Canadian Lobbying Act also places a 5 year ban on designated public office holders and
former designated members of the Prime Minister’s transition team working as lobbyists after
they leave public office.
These measures are instituted as part of a broader lobbyist registration system that is overseen
by the Office of the Commissioner of Lobbying of Canada. This system requires public
registration of lobbyists and monthly reporting by lobbyists of their communications with
public office holders.
United States of America
The USA prohibits the payment of success fees to third party lobbyists in government
procurement process at a federal level through a covenant against contingent fees. This is
inserted into government contracts and requires contracting or tendering parties to warrant they
have not engaged a lobbyist on a contingent fee basis in relation to the contract. If the
contracting party breaks this warranty, the contract may be annulled or the contingent fee
deducted from the contract.
The covenant provides an exception for bona fide employees of contractors, and does not apply
to contracts for commercial items or contracts that do not exceed the simplified acquisition
threshold (effectively US$100,000.)
United Kingdom
In the United Kingdom, the lobbying industry has historically been self-regulated. In June
2007 the Public Administration Select Committee (PASC) launched an enquiry into “the
transparency of the lobbying industry, the effectiveness of recent attempts at self regulation,
and whether the rules for those in Parliament and Government should be changed.” The PASC
report was delivered in January 2009 and recommended the creation of a lobbyist register and
the regulation of the lobbying industry by a single body with robust outside input, but did not
discuss the issue of success fees.
New Zealand
Lobbying in New Zealand is unregulated. There is no public register of lobbyists or rules
governing the practice.
Inter-jurisdictional comparison No 7:
Procurement
Queensland
The Queensland Government’s State Procurement Policy requires the conduct of fair and open
tendering and sets out procedural requirements for the conduct of tender processes. The State
Procurement Policy and associated documentation consists of: the policy statement including
its intent, objectives, operation and administration; foundation concepts that explain the policy
objectives and an operational concept that outlines how to apply the sustainable procurement
aspect of the policy; and better procurement guidance that assists agencies and suppliers to
understand government procurement practices.
The State Procurement Policy requires agencies to establish and maintain procurement
procedures which outline their procurement systems and practices. Agencies are to ensure that
procurement is to be carried out with the utmost probity and in accordance with obligations
placed on them by the Financial Accountability Act 2009, the Financial and Performance
Management Standard 2009; the Public Sector Ethics Act 1994 and such other legislative or
government policy obligations as may from time to time apply to the procurement activities of
the agency.
The Ethics, Probity and Accountability in Procurement Better Purchasing Guide issued by the
Crime and Misconduct Commission and the Department of Public Works provides best
practice guidance on probity practices, including consideration of engagement of probity
advisors (to observe, review and provide guidance on probity standards during a procurement
process) and probity auditors (to report on compliance with probity standards during a
procurement process).
The Queensland Government eTendering website provides information about tendering
opportunities. All government agencies are required to publish details of awarded contracts
and standing offer arrangements with a value of $100,000 and over, including the name and
address of the procuring entity; a description of the goods or services procured; the date of
award or contract date; the contract value; the name and address of the successful supplier; and
the procurement method used.
Commonwealth Government
The Australian Government Procurement Policy Framework establishes the principles for the
acquisition of property and services. The framework is based on the principles of: value for
money; efficient, effective and ethical use of resources; and accountability and transparency in
Commonwealth Government procurement activities.
The Commonwealth Procurement Guidelines establish the Government’s core procurement
policy framework and articulate the Government’s expectations of all departments and
agencies and their officials subject to the Financial Management and Accountability Act 1997
when performing duties in relation to procurement. The guidelines establish the procurement
policy framework within which agencies determine their own specific procurement practices.
The Guidance on Ethics and Probity in Government Procurement highlights ethics and probity
issues that departments and agencies should consider in order to effectively manage
procurement. The guide includes advice on preparing probity plans and recommends that in
large or complex transactions an external probity specialist may be involved to provide
independent oversight of the process.
The Commonwealth Government publishes government business opportunities, annual
procurement plans, multi-use lists and contracts awarded on AusTender. Government
departments and agencies must publish details, including the value and the supplier, of
contracts awarded with a value of $10,000 and above.
New South Wales
The NSW Government Procurement Policy provides the framework for agencies to achieve
value for money from procurement whilst being fair, ethical and transparent. Opportunities for
the private sector to gain government business are encouraged through effective competition.
The framework contains Overarching Procurement Requirements and a Code of Practice and
Implementation Guidelines.
The Independent Commission Against Corruption has issued Probity and Probity Advising:
Guidelines for Managing Public Sector Projects which provides advice on the engagement of
probity advisors, probity auditors and the completion of probity plans.
The NSW Government Agencies eTendering website lists upcoming, current and closed
business opportunities that have been provided by agencies and provides details of awarded
contracts over $150,000 in value.
Victoria
The Victorian Government Purchasing Board (VGPB) sets the minimum standards for
procurement of non-construction goods and services in Victorian Government departments and
some agencies. The policy framework is aimed at value for money in Victorian Government
procurement, while maintaining the highest standards of probity, minimising risk and
maximising opportunities for local businesses.
The VGPB Procurement Policies Master Manual sets out guidance on all procurement policy
requirements, including appointment of designated probity auditors and/or advisors to provide
independent assessment throughout the procurement process where the risk and complexity
associated with a procurement process is considered high.
The Contracts Publishing System contains information about contracts entered into by
Victorian Government departments and some agencies. Summary information is available on
contracts greater than $100,000. For contracts more than $10 million, the contract itself is
published.
South Australia
The State Procurement Board of South Australia is established under the State Procurement
Act 2004 to provide independent oversight of government procurement activities with the aim
of: obtaining value in the expenditure of public money; providing for ethical and fair treatment
of participants; and ensuring probity, accountability and transparency in procurement
operations.
Policies and guidelines are developed through consultation with public authorities to promote
good procurement management practices while recognising differences in the complexity, risk
and value of procurement proposals, ensuring a more consistent approach to procurement
planning and decision-making across government.
The SA Tenders and Contracts website is the central source for public procurement
opportunities within South Australia and lists all publicly available bidding opportunities as
well as details of South Australian Government awarded contracts for goods, services and
works. The Department of the Premier and Cabinet Circular PC027 – Disclosure of
Government Contracts requires the publication of summaries of contracts from $500,000 to
less than $4 million and consultancies under $25,000. For contracts of over $4 million and
consultancies of $25,000 or more, the whole contract is required to be published.
Western Australia
Government Procurement, within the WA Department of Treasury and Finance and now
incorporating the State Supply Commission, performs the central contracting and tendering
function for the Western Australian public sector. The Procurement Practice Guide provides
the framework for government purchasing activities and sets out probity and accountability
principles for government procurement processes.
Contracts WA lists a range of common use arrangements for goods and services regularly
purchased by government departments and Tenders WA is used by government departments to
advertise their public tendering requests and publish details of contracts awarded, including
sole source purchases over $20,000.
Tasmania
Tasmanian Government purchasing is based on the four principles of: value for money; open
and effective competition; conducting purchasing activities ethically and in accordance with a
code of conduct; and enhancing opportunities for local business. Procurement must be
undertaken in accordance with the Treasurer’s instructions issued under the Financial
Management and Audit Act 1990 and the Government Business Enterprises Act 1995.
The Probity Guidelines for Procurement (currently under review) list key factors for
consideration when determining whether a probity advisor should be appointed for particular
procurement processes, such as whether a transaction is of a high value (over $500,000) or the
matter is highly complex, unusual or contentious. A Probity Advisor Directory has been
established to assist agencies in selecting a probity advisor, if it has been determined that one is
required.
Information about Tasmanian Government procurement opportunities for business is published
on Tasmanian Tenders Online. Details of all contracts valued above $50,000 are published,
including the contractor’s name and business address and the value of each contract. All
contracts valued at over $2 million are to be made publicly available on the relevant agency’s
website.
Northern Territory
The Northern Territory Government procurement framework consists of the Procurement Act
1995, Procurement Regulations, the Northern Territory Procurement Code, Procurement
Circulars; and Procurement Directions. The procurement principles underpinning the
Government’s procurement framework are: value for money; open and effective competition;
enhancing the capabilities of local business and industry; environmental protection; and ethical
behaviour and fair dealing.
The Procurement Directions provide that it may be appropriate to engage an independent
observer (e.g. probity auditor or specialist consultant) to oversee quotation/tender clarification
processes, particularly where the quotation/tender is complex or of significant risk and value.
The Procurement Regulations require that details of contracts be published in the gazette
unless: the supply is under a tier one contract (less than $15,000); the supply is provided by
another government or is obtained under an existing contract; or the Minister is satisfied that
publication is contrary to the public interest.
Australian Capital Territory
In 2005, the ACT Government centralised government procurement activities within
Procurement Solutions, a division of Shared Services within the Department of Territory and
Municipal Services. Under the ACT procurement framework, Procurement Solutions delivers
all capital works projects and the procurement of all goods and services valued at $20,000 or
more.
Procurement activities are undertaken in accordance with the Government Procurement Act
2001 which provides that Territory entities must pursue value for money in undertaking
procurement activities having regard to: probity and ethical behaviour; management of risk;
open and effective competition; optimising whole of life costs; and anything else prescribed by
regulation. The Government Procurement Board must review procurement proposals over
specified thresholds.
Probity Circular 2007/21: Probity and Ethical Behaviour requires ethical behaviour of public
servants and suppliers in conducting procurement and states that, for sensitive and high value
procurement processes, an audit and report from an independent probity auditor may be
appropriate.
Details of contracts over $20,000 are notifiable on a public register under the Government
Procurement Act 2001.
New Zealand
On 11 June 2009, the New Zealand Government approved a reform agenda to transform
government procurement policy and practice. The focus of the reform agenda is to improve
state sector productivity and efficiency, increase the opportunities for New Zealand businesses
to participate in government contracts, and to release fiscal savings for use in other priority
areas.
The Government Procurement in New Zealand: Policy Guide for Purchasers requires
departments and encourages other public sector agencies, to be guided in their procurement by
the following principles: best value for money over whole of life; open and effective
competition; full and fair opportunity for domestic suppliers; improving business capabilities,
including e-commerce capability; recognition of New Zealand's international trade obligations
and interests; and requiring sustainably produced goods and services wherever possible.
The Mandatory Rules for Procurement by Departments require departments to have in place
policies and procedures to eliminate any potential conflict of interest on the part of those
engaged in or having influence over a procurement. The Controller and Auditor-General has
also issued Procurement Guidance for Public Entities which sets out six basic procurement
principles: accountability; openness; value for money; lawfulness; fairness; and integrity.
Agencies are required to publish details of contracts for goods and services of $100,000 and
more on the Government Electronic Tenders Service website.
Inter-jurisdictional comparison No 8:
Oversight bodies
Queensland
In Queensland, the Crime and Misconduct Commission (CMC) is responsible for dealing with
misconduct in the Queensland public sector. The CMC handles complaints of misconduct
from members of the public or from official sources. Where possible, the CMC encourages
public sector agencies to investigate allegations of misconduct themselves, while it performs a
monitoring or collaborative role.
The decision to refer a complaint to an agency for investigation is entirely the prerogative of
the CMC, and can be reversed at the CMC’s discretion at any time. The CMC also monitors
how public sector agencies handle complaints the CMC refers to them. To ensure public
confidence in the agency, however, it is sometimes necessary for the CMC to undertake
investigation, especially in more serious matters.
The CMC has jurisdiction over all units of public administration and is concerned with official
misconduct. The term ‘misconduct’ has a specific meaning in the Crime and Misconduct Act
2001; it means ‘official misconduct’ and ‘police misconduct’. It refers only to conduct
connected with an officer’s powers, authorities or duties; it does not relate to any private
misconduct on the part of the officer (except in certain circumstances).
Official misconduct is conduct relating to the performance of a person’s duties that:
 is dishonest or lacks impartiality;
 involves a breach of the trust placed in an officer by virtue of their position;
 is a misuse of officially obtained information.
The conduct must be a criminal offence or serious enough to justify dismissal.
Allegations of official misconduct can come to the CMC’s attention in a variety of ways, for
example in the form of a complaint from a member of the public via letters, faxes, emails,
telephone calls or face-to-face interviews. It can come as information from whistleblowers,
anonymous sources or media or from the CMC’s own activities or intelligence sources.
Additionally, there is an obligation on chief executive officers of all units of public
administration to notify the CMC of any suspected official misconduct (see section 38 of the
Crime and Misconduct Act 2001). This obligation is on all chief executive officers, including
the Commissioner of Police. In addition to this obligation, the Commissioner must also notify
the CMC of ‘police misconduct’. Police misconduct means conduct, other than official
misconduct, of a police officer that:
 is disgraceful, improper or unbecoming a police officer;
 shows unfitness to be or continue as a police officer;
 does not meet the standard of conduct the community reasonably expects of a police officer.
Once a complaint involving official misconduct is received, the CMC assesses the matter and
decides what action to take, having regard to the principles contained in the Crime and
Misconduct Act 2001 (see section 34). These principles provide that ‘action to prevent and
deal with misconduct should generally happen within the unit’, subject to the public interest
principle, which provides that the CMC has ‘an overriding responsibility to promote public
confidence’. The capacity of the public sector agency to deal with the matter must also be
considered.
In making its decision, the CMC may decide to do one or more of the following (see section 46,
Crime and Misconduct Act 2001):
 refer the complaint to the subject agency to deal with, subject to some form of monitoring
by the CMC investigate the complaint itself;
 investigate the complaint in cooperation with the subject agency;
 refer possible criminal activity to the Queensland Police Service;
 refer the complaint to another agency (e.g. the Ombudsman) to deal with; or
 take no further action.
The CMC will notify the relevant agencies of its assessment decision. If an allegation is
referred to the subject agency to deal with, the CMC may also provide:
 recommendations about how to deal with the matter;
 investigation advice (if appropriate); and
 prevention advice and material (if appropriate).
The relevant agency is advised of the CMC’s assessment decision with some explanation.
Commonwealth
The Australian Government does not have an independent public sector anti-corruption body
such as the CMC. However, the Commonwealth Integrity Commissioner, supported by the
Australian Commission for Law Enforcement Integrity (ACLEI), is responsible for preventing,
detecting and investigating serious and systemic corruption issues in the Australian Federal
Police and the Australian Crime Commission.
‘Corruption’ is defined in the Law Enforcement Integrity Commissioner Act 2006 as applying
to three categories of activity by a law enforcement officer: an abuse of office; conduct that
perverts the course of justice; or corruption of any other kind.
A corruption investigation by the ACLEI can commence in different ways, for example:
 the head of a law enforcement agency within the ACLEI’s jurisdiction must notify the
Integrity Commissioner of any corruption issue that relates to the agency, and provide all
relevant information and documents if it is a significant corruption issue; and
 any person or government agency (e.g. the Commonwealth Ombudsman) can refer to the
ACLEI an allegation or information raising a corruption issue. A referral can be
anonymous, or on behalf of another person.
Subject to narrow exceptions (e.g. frivolous allegation), every corruption issue notified by a
law enforcement agency to the Integrity Commissioner is to be investigated by the ACLEI or
the agency, and a report is to be prepared. The Integrity Commissioner is under a duty to keep
the Minister, law enforcement agencies, and persons who refer allegations to the ACLEI,
informed of how those corruption allegations were dealt with.
A report by the Integrity Commissioner on a corruption investigation can recommend that a
law enforcement officer be counselled, disciplined or dismissed. Evidence obtained by the
ACLEI which points to a breach of Commonwealth, State or Territory criminal law is to be
referred to the relevant prosecution authority; so too is evidence that could lead to the recovery
of the proceeds of crime. The Commissioner can make recommendations to remedy
deficiencies in the policies and practices of law enforcement agencies, so as to prevent and
detect corrupt conduct.
Victoria
Victoria also does not have an independent public sector anti-corruption body. However, the
Office of Police Integrity (OPI) investigates corruption and serious misconduct by Victoria
Police members, with or without complaint having been made. Its role is to ensure that
Victoria Police maintain the highest ethical and professional standards.
OPI is an independent body which reports directly to Parliament. A separate independent
statutory officer, the Special Investigations Monitor, reports to Parliament about how OPI uses
some of its investigative powers.
All complaints to OPI are recorded and examined to determine the manner in which they
should be dealt with. Everyone who sends a written complaint to OPI will receive a letter
informing them of what will happen with the complaint and what, if any, further action will be
taken.
Complaints can be resolved through conciliation with Victoria Police, however some will
require investigation. The Police Integrity Act 2008, requires the OPI to refer most complaints
requiring investigation to Victoria Police for investigation. Victoria Police must notify OPI
about complaints they receive relating to serious misconduct or corruption. OPI then monitors
and reviews investigations undertaken by Victoria Police regardless of who the complaint was
initially made to.
New South Wales
The Independent Commission Against Corruption (ICAC) is the New South Wales public
authority that deals with corruption related to the NSW public sector. It is created by the
Independent Commission Against Corruption Act 1988 (the ICAC Act) which establishes its
principal objectives as promoting the integrity and accountability of public administration by:
 investigating, exposing and preventing corruption involving or affecting public
authorities or public officials; and
 educating public authorities, public officials and members of the public about
corruption and its detrimental effects on public administration and on the community.
The ICAC Act gives the ICAC broad jurisdiction to investigate any allegation or circumstance
which, in the ICAC's opinion, imply that corrupt conduct has occurred. Its jurisdiction
encompasses the conduct of judges, magistrates and local government. As well, the ICAC can
investigate conduct likely to allow, encourage or cause corrupt conduct and has significant
powers under the ICAC Act to gather information.
The ICAC is a public authority, but is independent of the government of the day. It is made
accountable to the people of New South Wales through a Parliamentary Committee. The
ICAC is not a law enforcement agency and cannot prosecute the matters that it investigates.
Rather, it makes findings of corrupt conduct which it reports to Parliament and may refer to the
Director of Public Prosecutions for action.
An ICAC investigation may begin as a result of:
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a report by any person;
a report by the chief executive officer of a public sector agency or general manager of a
local council;
the ICAC's own initiative; or
a reference by both houses of the NSW Parliament.
Under the ICAC Act, the ICAC must, as far as practicable, direct its attention to serious and
systemic corrupt conduct but is not required to investigate every matter (unless it has been
referred by both Houses of Parliament). Matters that are particularly serious or concern the
public interest may be given priority.
The ICAC Act also requires the ICAC to actively examine policy and operating and
management procedures in the public sector to minimise or eliminate opportunities for corrupt
behaviour. This work includes providing advice to agencies or individuals requesting it, and
making recommendations on legislative and system change to help remedy corruption
opportunities exposed in reports from agencies, the public, or as a result of ICAC
investigations and hearings.
Police oversight in NSW is achieved by a separate body – the Police Integrity Commission
(PIC) – which was set up in 1996 as a standing body to deal with NSW police corruption upon
the recommendation of the Royal Commission into the NSW Police Service. The Police
Integrity Commission Act 1999 establishes the principal functions of the PIC as preventing,
detecting, investigating and assisting other agencies in the detection serious police misconduct.
The PIC performs these functions in relation to misconduct by administrative officers of the
NSW Police Force and officers of the NSW Crime Commission. The PIC is required to turn its
attention, as far as practicable to the most serious forms of misconduct.
The PIC is also involved police activities and education programs and the collection of
evidence, information and research into serious misconduct and methods by which it may be
reduced. It provides advice and recommendations to the NSW Police Force and the NSW
Crime Commission as to how their capacities to minimise and prevent misconduct can be
strengthened.
The activities of the PIC are overseen by a Parliamentary Joint Committee and complaints
relating to the operations of the Commission and the conduct of its officers are investigated by
the Inspector of the PIC, an independent statutory officer, appointed by the Governor of NSW.
Western Australia
The Corruption and Crime Commission (CCC) was established on the 1 January 2004 to deal
with issues of crime and corruption relating to the entire Western Australian public sector
(including police). It is set up under the Crime and Corruption Commission Act 2003 which
establishes its two main purposes as:
 combating and reducing the incidence of organised crime by granting (and then
monitoring) exceptional powers to the Commissioner of Police investigate organised
crime; and
 improving the integrity of and reducing the incidence of misconduct in the public sector.
The CCC has extensive investigative powers to carry out these functions, including the power
to compel a witness to attend a hearing, to produce documents, to obtain a search warrant on
application to a judge, to intercept telecommunications and use surveillance devices, to use
assumed identities, and to conduct integrity tests.
The CCC is charged with responsibility for progressing matters for investigations referred from
the Police Royal Commission and the former Anti-Corruption Commission and for dealing
with notifications of reviewable police action.
Under the Crime and Corruption Commission Act 2003, certain designated notifying
authorities have an obligation to report suspected misconduct to the CCC, however complaints
can also be received from the public. The CCC is not under any obligation to investigate every
complaint but must notify complainant of their decision.
The operations of the CCC and the conduct of its officers are overseen by a Parliamentary
Inspector and a Parliamentary Committee, with the former responsible for investigating
complaints against the Commission or its officers and the latter monitoring and reporting to
Parliament on the exercise of the functions of the CCC and the Parliamentary Inspector.
In addition to its investigative arm, the CCC’s Prevention, Education and Research Directorate
works with agencies to strengthen their corruption resistance and minimise the risk of
misconduct.
South Australia, Tasmania, Northern Territory and Australian Capital Territory
South Australia, Tasmania, Northern Territory and the Australian Capital Territory do not have
independent public sector or police anti-corruption bodies.
The Police Complaint Authority of South Australia was established in 1985 and provides
civilian oversight to the actions of South Australian police. It has capacity to receive
complaints and provide external monitoring to the subsequent internal investigations of the
police force. Accordingly, it is not considered dedicated anti-corruption body.
ACT police officers come from within the Australian Federal Police and are therefore
considered Commonwealth police officers and employees. They are thus subject to
jurisdiction of the ACLEI which oversees their actions.
Inter-jurisdictional comparison No 9:
Public Service Disciplinary Processes
Queensland
In Queensland, the Public Service Act 2008 sets the legislative framework for the operation of
the public service, including the disciplinary framework. Under the Public Service Act 2008, a
public service officer’s chief executive may discipline the officer if the chief executive is
reasonably satisfied the officer has:
 performed the officer’s duties carelessly, incompetently or inefficiently;
 been guilty of misconduct;
 been absent from duty without approved leave and without reasonable excuse;
 contravened, without reasonable excuse, a direction given to the officer as a public
service officer by a responsible person;
 used, without reasonable excuse, a substance to an extent that has adversely affected the
competent performance of the officer’s duties;
 contravened, without reasonable excuse, a provision of this Act or an obligation
imposed on the person under a code of conduct.
Under the Act, misconduct encompasses any inappropriate or improper conduct relating to an
officer’s duties and any inappropriate or improper conduct in a private capacity by an officer
that reflects seriously and adversely on the public service. Disciplinary action that may be
taken by a chief executive is not exclusively defined, but may include termination of
employment, reduction of classification level, transfer or redeployment, reduction of
remuneration level, imposition of a monetary penalty or a reprimand.
The Public Service Commission has issued Discipline Guidelines which provide information
and guidance to public service agencies in relation to the management of potential disciplinary
matters, including suspension under the Public Service Act 2008. In particular, the guidelines
are intended to:
 promote fair and consistent processes in the management of potential disciplinary
matters; and
 encourage management action to be taken to improve unsatisfactory performance or
unacceptable conduct prior to initiating the disciplinary process.
The guidelines operate in conjunction with other relevant legislation, directives, codes of
conduct and policies and procedures.
Under the Crime and Misconduct Act 2001, official misconduct is conduct relating to the
performance of a person’s duties that:
 is dishonest or lacks impartiality, or
 involves a breach of the trust placed in an officer by virtue of their position, or
 is a misuse of officially obtained information.
The conduct must be a criminal offence or serious enough to justify dismissal. Chief executive
officers of all units of public administration have an obligation to notify the Crime and
Misconduct Commission (CMC) of any suspected official misconduct. The CMC may deal
with complaints in a variety of ways, including referring the complaint to the subject agency to
deal with, subject to some form of monitoring, or investigating the complaint itself.
In August 2009, amendments were made to the Public Service Act 2008 and the Police Service
Administration Act 1990 to enable disciplinary action to continue against former public service
officers and police officers, whose employment in the public service ends, following serious
breaches of discipline or misconduct. At the same time, the Crime and Misconduct Act 2001
was amended to enable the CMC to lay disciplinary charges for official misconduct against
certain public service officers and members of the police service whose employment in the
public sector has ended.
Commonwealth
The Commonwealth public sector disciplinary processes derive from the Public Service Act
1999 (the PS Act). Section 10 of the Act provides an extensive list of Australian Public
Service (APS) values while section 13 sets out the APS code of conduct. Section 11 provides
that the Public Service Commissioner may augment the values by issuing directions that ensure
values are upheld or determine the scope and application of values.
The PS Act imposes a duty on agency heads to establish procedures for determining whether
the APS code of conduct has been breached by an employee and requires that the procedures
comply with basic procedural requirements set out in Commissioner’s Directions; have due
regard to procedural fairness; and, be published and accessible to all employees.
In the event of the determination of breach of the code of conduct, the agency head is
empowered to take any of the following actions:
 termination of employment;
 reduction in classification;
 re-assignment of duties;
 reduction in salary;
 deductions from salary, by way of fine; or
 reprimand.
New South Wales
New South Wales public service disciplinary arrangements are dealt with under part 2.7 of the
Public Service Employment and Management Act 2002 (PSEM Act). The PSEM Act requires
the Director of Public Employment – a position held by the Director-General of the
Department of Premier and Cabinet – to issue guidelines for dealing with misconduct and
disciplinary action.
The public service code of conduct and disciplinary guidelines are enshrined in the New South
Wales Government Personnel Handbook. The purpose of the disciplinary guidelines are to:
 maintain appropriate standards of conduct and work-related performance in the public
service;
 protect and enhance the integrity and reputation of the public service; and
 ensure the public interest is protected
The guidelines provide that disciplinary matters will be dealt with by the department head, who
has a power to delegate his or her duty. Disciplinary action may be taken in relation to
allegations of misconduct, with misconduct being defined as:
 a contravention of any provision of the PSEM Act or the regulations;
 performance of duties in such a manner as to justify the taking of disciplinary action;
 taking any detrimental action within the meaning of the Protected Disclosures Act 1994
against a person that is substantially in reprisal for the person making a protected
disclosure within the meaning of that Act; or
 taking any action against another officer that is substantially in reprisal for an internal
disclosure made by that officer.
The system establishes a dual approach, with a remedial and disciplinary framework operating
alongside one another. The remedial framework incorporates actions such as counselling,
training and development, monitoring the officer’s conduct or performance, implementing a
performance improvement plan, issue of warnings or transfer without demotion. Remedial
action is instituted particularly in cases of unsatisfactory performance and also cases of
misconduct, where appropriate. Discretion lies with the Director of Public Employment.
Disciplinary action encompasses dismissal from the public service; direction to resign within a
specified time; annulment of appointment (if on probation); reduction of salary/demotion; the
imposition of a fine; and caution/reprimand.
Appeals against decisions are heard by the New South Wales Government and Related
Employees Appeal Tribunal.
Victoria
The disciplinary processes in Victoria are governed by the Public Administration Act 2004 (the
PA Act) which establishes the State Services Authority. The State Services Authority is
charged with the role of:
 identifying opportunities to improve the delivery and integration of government
services and reporting on service delivery outcomes and standards;
 promoting high standards of integrity and conduct in the public sector;
 strengthening the professionalism and adaptability of the public sector; and
 promoting high standards of governance, accountability and performance for public
entities.
The PA Act establishes the position of the Public Sector Standards Commissioner which
carries responsibility for promoting high standards of integrity and conduct in the Victorian
public sector by:
 issuing codes of conduct that reinforce the public sector values;
 issuing standards on how to apply the employment principles;
 promoting the values, employment principles, standards and codes through publications
such as Ethics Framework and the Ethics Resource Kit; and
 reviewing grievances, making recommendations, and reporting to the Premier.
Failure to comply with codes of conduct and behaviour standards can be dealt with under
performance management of misconduct processes. As the language suggests, the
performance management processes do not deal with disciplinary matters in a traditional
framework that clearly proscribes and provides sanctions for certain behaviour. Rather, it
integrates discipline and misconduct management into a broad framework with a training and
remedial focus that includes ethics training, skills development and work and career
management. The frameworks and resource kits are developed by the Public Sector Standards
Commissioner and implemented at an agency level. The State Services Authority establishes a
panel of 13 review officers which are made available to agencies in order to conduct
misconduct investigations.
South Australia
Disciplinary proceedings in the South Australian Public Sector will soon operate under the
Public Sector Act 2009 (the PS Act) which was passed on 16 July 2009. Section 12 of the PS
Act established the office of the Commissioner for Public Sector Employment with section 14
identifying the Commissioner’s duties as including the issuing of a public sector code of
conduct and the investigation or assistance in the investigation of matters in connection with
public sector employee conduct or discipline. Section 15 specifically provides that the code of
conduct is to provide disciplinary provisions.
The Act provides that a public sector agency may reprimand an employee of the agency, or
suspend an employee of the agency from duty without pay for a specified period, on the ground
of the employee's misconduct. The PS Act allows an agency to take disciplinary action in
relation to misconduct by reducing an employee’s remuneration or terminating an employee’s
employment respectively.
Misconduct is defined by the PS Act as:
 a breach of a disciplinary provision of the public sector code of conduct while in
employment as a public sector employee; and, with some circularity,
 other misconduct while in employment as a public sector employee.
The PS Act exposits that other misconduct includes making a false statement in connection
with an application for engagement as a public sector employee and being convicted, while in
employment as a public sector employee, of an offence punishable by imprisonment.
Western Australia
In Western Australia, the framework for public sector disciplinary practices is contained within
Part 5 of the Public Sector Management Act 1994 (the PSM Act). A breach of discipline is
constituted by an employee who:
 disobeys or disregards a lawful order;
 contravenes any provision of this Act applicable to that employee or any public sector
standard or code of ethics;
 commits an act of misconduct;
 is negligent or careless in the performance of his or her functions; or
 commits an act of victimisation within the meaning of section 15 of the Public Interest
Disclosure Act 2003.
The PSM Act establishes the Office of the Public Sector Standards Commissioner which is
responsible for the creation and monitoring of the Public Sector Standards and code of conduct
and assists agencies in ensuring compliance and also, establishing their own codes of ethics.
The definition of misconduct is provided in the Corruption and Crime Commission Act 2003.
Breaches of discipline are therefore determined by cross-referencing the provisions in the
definition with the broader integrity framework.
The PSM Act sets out the requirements for procedures that must be followed in the event of an
alleged breach of discipline, enumerating the powers and responsibilities of investigating
authorities and the subject of the allegation’s rights of due process and appeal.
Tasmania
Public sector disciplinary procedures flow from the State Services Act 2000 (the SS Act) which,
in section 9, establishes a concise 15 point code of conduct. Section 10 provides that a breach
of the code of conduct may result in the imposition of counselling; reprimand; deductions from
salary by way of fine not exceeding 20 penalty units; reduction in salary within the range of
salary applicable to the employee; reassignment of duties; reduction in classification; or
termination of employment.
The SS Act also provides that the State Services Commissioner established is to issue
procedures for the investigation and determination of circumstances in which an employee may
have breached the code of conduct.
The latest directions for the investigation and determination for the breaches of the code of
conduct are located in the Commissioner’s Directive No. 5 of 2009. It provides that
responsibility for the investigation and determination of potential breaches is to lie with agency
heads, who are given the power to appoint an investigator that reports to them.
Northern Territory
The public sector disciplinary processes for the Northern Territory derive from Part 8 of the
Public Sector Employment and Management Act (the PSEM Act) which covers all the agencies
in the Northern Territory. Conduct that constitutes a breach of discipline is defined the PSEM
Act with section 51 empowering a chief executive officer (CEO) to commission an
investigation of an incident in which they suspects a breach of discipline may have occurred.
Before such an information commences, the CEO must inform the employee concerned of the
allegation and give an opportunity for that employee to provide a written explanation of the
incident within 14 days of service.
Section 50 provides the CEO with the power to summarily dismiss an employee if they are of
the opinion that an act or omission of the employee constitutes misconduct to a degree that it is
in the public interest that the employee be immediately dismissed. Following the completion
of an investigation into a suspected breach of discipline, the PSEM Act requires the CEO to
obtain a report from the investigator and forward a copy of that report to the suspected
employee within 14 days.
If, after receiving the report and written explanation, the CEO believes that a breach of
discipline has not occurred, they must notify the employee accordingly. If they believe a
breach of discipline has occurred, the CEO may:
 take no further action in the matter;
 cause the employee to be formally cautioned in writing;
 fine the employee an amount not exceeding of 10 days' remuneration;
 require the employee to forego a benefit or entitlement arising from the employee's
employment for a period not exceeding one month;
 reduce the salary of the employee within the range of the employee's designation;
 suspend the employee, without remuneration for a period the CEO thinks fit;
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transfer the employee to perform other duties in the agency or in another agency; or
terminate the employment of the employee in the public sector.
Appeals against disciplinary decisions can be made under to the Disciplinary Appeals Board
which is established under the Act.
Australian Capital Territory
The Public Sector Management Act 1994 (the PSM Act) sets out the values and principles of
the ACT public service, the general principles of public administration and the general
obligations of public sector employees. The general obligations of employees constitute the
code of ethics for the ACT public service. Failure to comply with these provisions constitutes
misconduct. The Public Sector Management Standards 2006 that operates under the PSM Act
enumerates the specific application of ethical obligations of employees.
The processes that govern disciplinary matters are dealt with extensively under the PSM Act
which provides that an employee may be charged with misconduct if an officer who is
authorised by the relevant chief executive officer is of the opinion that the employee has failed
in the duties imposed by the code of ethics. If this occurs, an inquiry into the alleged
misconduct is to be held by the CEO or, someone appointed by the CEO, with the employee
being given an opportunity to provide a written explanation of events.
If the officer conducting the enquiry is satisfied misconduct occurred, they may:
 admonish the officer;
 deduct a sum not exceeding $500 from the salary of the officer;
 reduce the salary of the officer for 12 months or less;
 transfer the officer to a specified office;
 transfer the officer and deduct a sum not exceeding $500 from their salary;
 transfer the officer and reduce their salary for 12 months or less; or
 direct that the officer be dismissed from the service.
If an employee is convicted of a criminal offence, the relevant CEO may transfer or dismiss the
officer if the CEO is of the opinion that it is in the interests of the public service. Prior to
doing so, the CEO must have given the employee an opportunity to provide a written
explanation and also, must have had regard to the nature and seriousness of the offence and its
relevance to the officer’s duties.
A CEO may suspend an employee suspected of misconduct if it is considered that it would
prejudicial to the interests of the service, the public, the officer concerned or other officers to
allow the suspected officer to continue to work while the investigation is being carried out.
This may only be done subsequent to the employee being given a hearing. Adverse
disciplinary decisions may be appealed by employees to the Disciplinary Appeal Committee.
Inter Jurisdictional Comparison No.10:
Police Misconduct processes
Commonwealth
The Australian Commission for Law Enforcement Integrity (ACLEI), was established under
the Law Enforcement Integrity Commissioner Act 2006, and is responsible for preventing,
detecting and investigating serious and systemic corruption issues in the Australian Federal
Police and the Australian Crime Commission.
A corruption investigation by ACLEI can commence as a result of the following:
 the head of a law enforcement agency within ACLEI’s jurisdiction notifies the Integrity
Commissioner of a corruption issue that relates to the agency;
 the Minister for Justice refers a corruption issue to the Integrity Commissioner, or
requests the Commissioner to conduct a public inquiry into corruption or integrity in
law enforcement agencies;
 a person or government agency refers a matter to the ACLEI for investigation; or
 the Integrity Commissioner commences an investigation on his or her initiative.
Subject to narrow exceptions (e.g. frivolous allegation), every corruption issue notified by a
law enforcement agency to the Integrity Commissioner is to be investigated by ACLEI or the
agency. The Commissioner decides whether a corruption issue notified by the Minister or other
person is to be investigated by ACLEI or a law enforcement agency, or if an investigation is
not warranted.
The Integrity Commissioner has powers similar to a Royal Commission, to conduct public or
private hearings, and summon any person or government agency to produce documents or
things or attend a hearing to give evidence under oath and be cross-examined. ACLEI
investigators can access coercive and other powers used in law enforcement. Special ACLEI
powers include: the power to enter the premises of a law enforcement agency without prior
warning to carry on an investigation and seize articles; and the power to apply to a judge for
the arrest of a person refusing or attempting to evade giving evidence.
Following an investigation, a report by the Integrity Commissioner on a corruption
investigation can recommend that a law enforcement officer be counselled, disciplined or
dismissed. Evidence obtained by ACLEI which points to a breach of Commonwealth, State or
Territory criminal law is to be referred to the relevant prosecution authority; so too is evidence
that could lead to the recovery of the proceeds of crime. The Commissioner can also make
recommendations to remedy deficiencies in the policies and practices of law enforcement
agencies, so as to prevent and detect corrupt conduct.
In the event that the Integrity Commissioner is not satisfied with the response of a law
enforcement agency to a report, the Commissioner can report to the Minister or both houses of
the Parliament.
Victoria
The Victorian Government established the Office of Police Integrity (OPI) in November 2004.
OPI became a permanent standing body in 2007 and the Police Integrity Act was proclaimed in
2008. The role of the OPI is to ensure that Victoria Police maintain the highest ethical and
professional standards, through detection, investigation and prevention. The OPI Director has
the power to conduct investigations into:
 the conduct of a sworn member of Victoria Police corruption or misconduct generally,
or
 any of the policies, practice or procedures of Victoria Police.
Following receipt of a complaint, OPI will make an assessment and determine whether the
complaint will be investigated. In making this determination the following are considered:
 OPI has jurisdiction to investigate the matter;
 OPI is required by law to refer the matter to Victoria Police for investigation;
 OPI is required by law to investigate the matter. (For example, it is a complaint about
the Chief Commissioner or an Assistant or Deputy Commissioner.);
 it is in the public interest for OPI to investigate a matter. (For example, it is likely to
impact on the rights of people in contact with police.);
 it involves serious allegations of corruption, fraud, green-lighting, misappropriation,
misuse of public office, perjury, drug use by police or sexual assault/rape; and
 OPI has sufficient available resources to investigate the matter;
If the complaint falls within these categories, investigation by OPI will follow. If the complaint
is not within these boundaries, OPI may do one of the following:
 forward the complaint to Victoria Police to be resolved through a resolution process; or
 refer the complaint to Victoria Police for investigation.
Under the Police Integrity Act 2008, OPI does not make findings of guilt or innocence about
criminal or disciplinary offences. Generally, once an investigation has concluded, OPI will
send a report of the investigation with recommendations about what should happen to the Chief
Commissioner of Police. OPI can recommend any of the following:
 no further action be taken;
 a member or members be exonerated;
 disciplinary or criminal proceedings against an individual or individuals be commenced;
or
 a combination of the above.
In some circumstances where evidence exists that a criminal offence may have occurred, OPI
will refer the matter to the Director of Public Prosecutions.
Under the Crimes Act 1958 the common law offence of misconduct in public office has a 10
year maximum term of imprisonment.
OPI is overseen by the Special Investigations Monitor who monitors compliance with the
Police Integrity Act 2008.
New South Wales
The Police Integrity Commission (PIC) was established in 1996 by the NSW Parliament on the
recommendation of the Royal Commission into the NSW Police Service. It is separate from
and completely independent of the NSW Police Force (NSWPF). Its principal functions are to
detect, investigate and prevent misconduct by administrative officers of the NSWPF and the
NSW Crime Commission (Police Integrity Commission Act 1996, section 13). Complaints of
police misconduct may be received by PIC through the following mechanisms:
 extracted from the NSWPF complaints management system;
 referred to the Commission by the NSWPF or the Ombudsman;
 made directly to the Commission by a member of the public, a police officer, a legal;
 representative, or a Member of Parliament on behalf of a constituent;
 initiated by the Commission as a result of its investigations or research and analysis;
and
 referred to the Commission by other agencies.
Upon initial receipt of a complaint, the Investigation Unit (IU) of the Commission makes an
assessment of the complaint which may lead to: a preliminary investigation; a referral of
information to the NSWPF (with or without oversight); or no further action. Typically, the
Commission investigates the most serious complaints and oversees investigations by the
NSWPF of a small proportion of complaints.
Preliminary investigations commence when there is credible information to suggest that serious
police misconduct may have occurred and further analysis is necessary before an informed
decision can be made on future action. The decision to upgrade from a preliminary
investigation to a full investigation is made by the Commissioner, often in conjunction with
other senior officers, if satisfied that the information available is indicative of serious police
misconduct and the investigation may be progressed by the use of the Commission’s coercive
powers and devoting further resources to it.
During an investigation, IU staff can gather information from an array of tools, in particular
electronic surveillance and Commission hearings. At the conclusion of an investigation, if a
public hearing has been held, a report of the investigation pursuant to section 96 of the Police
Integrity Commission Act 1996 must be prepared. The Act authorises the Commission to
include in a report any relevant assessments, opinions and recommendations, including
recommendations that consideration is given to the prosecution of a person for a specified
criminal offence or to the taking of specified disciplinary action.
If a public hearing has not been held as part of the investigation, the Commission may
refer evidence and information to the Office of the Director of Public Prosecutions
recommending consideration be given to prosecution, and/or material may be referred to the
NSWPF for any managerial action it considers appropriate.
The Police Act 1990 allows the Police Commissioner to take action against an officer for
misconduct or unsatisfactory performance. Sanctions include reduction in rank, salary or pay
or any other action the Commissioner sees as necessary. Section 200 makes bribery and
corruption by police officers offences punishable by 7 years imprisonment and/or a fine of 200
penalty units. Section 207A gives the Police Commissioner power to carry out integrity testing
of officers. The Act also provides for the Commissioner to receive direction from the Police
Integrity Commissioner about what sanctions are appropriate in the circumstances.
Part 4A of the Crimes Act 1900 creates corruption type offences which apply to public servants,
police officers and councillors and are punishable by 7 years imprisonment. Courts are
empowered to order the repayment of corruptly obtained benefits and disqualify those
convicted from holding civic office for 7 years after conviction. Larceny or embezzlement by
members of the public service are also offences each punishable by 10 years imprisonment.
South Australia
The office of the Police Complaints Authority (the Authority) was established in 1985. Prior to its
establishment, there was no external agency to exercise any degree of oversight over the South
Australian police.
Any person may make a complaint to the Authority or to any member of the police force (except
the officer complained about). The Authority may refuse to have a complaint investigated if:
 the complaint is made more than six months after the police conduct complained about;
 the complaint is trivial, frivolous, vexatious or not made in good faith;
 the complaint is made anonymously;
 a person has been charged in relation to the conduct complained about; or
 the complainant has taken legal action or appealed in relation to the matter complained
about.
There are two pathways for handling complaints against police – conciliation and investigation.
Conciliation is intended to provide a flexible and simple procedure for resolving less serious
incidents which would otherwise attract full length and formal investigations. An allegation
suitable for conciliation is one where the alleged conduct would not ordinarily justify a criminal or
disciplinary charge (for example, use of bad language, incivility or shoving and jostling in a
crowded situation). Conciliation relies upon the complainant consenting to the procedure. Consent
may be withdrawn at any time.
Alternatively, investigations are carried out by the Internal Investigation Branch (IIB) and involve
discussions between the IIB and the complainant, the officer involved and any other person who
can help with the investigation. Following the investigation, the Authority may determine that the
officer’s action was inappropriate and as a result requires action to remedy the problem. In
particular, the Authority may recommend either of the following:
 a police officer should be charged with an offence or a breach of discipline;
 a decision should be reconsidered or reasons should be given for a decision;
 a law, policy or procedure should be changed; or
 no action should be taken.
In the instance that the Police Commissioner and the Authority cannot agree on the results of an
investigation and the action to be taken, the matter will be referred for resolution to the Minister.
The Authority may recommend disciplinary charges against a police officer. These are heard by a
magistrate sitting as the Police Disciplinary Tribunal. The Authority does not prosecute these
charges. The standard of proof required by the Police (Complaints and Disciplinary Proceedings)
Act 1985 to establish a charge is proof on the balance of probabilities. If the Tribunal finds that a
breach of discipline has occurred, the penalty is assessed by the Commissioner of Police or the
Deputy. The Authority must be notified of all matters before the Tribunal, whether arising from
its recommendations or not, and the outcome of all proceedings.
Western Australia
The Corruption and Crime Commission (CCC) was established on the 1 January 2004 for the
purpose of reducing incidences of misconduct in the public service. The CCC’s Corruption
Prevention, Education and Research Directorate works with agencies to strengthen corruption
resistance and minimise the risk of misconduct.
The CCC is regulated under the Corruption and Crime Commission Act 2003. Misconduct
occurs if a public officer: acts corruptly; takes advantage of their position in order to obtain a
benefit or cause detriment; or commits an offence punishable by two or more years’
imprisonment. When a complaint is lodged, an initial assessment is made by the Investigation
Review and Complaints Assessment team. This assessment determines whether the matter is
within the CCC’s jurisdiction. Following the assessment the CCC can do one of the following:
 refer the complaint to the appropriate authority;
 refer it to the Parliamentary Commissioner or Auditor-General;
 investigate or take action without the involvement of any other independent agency or
appropriate authority; or
 take no action if, for example, the matter is vexatious, too old or has been previously
considered by other agencies.
In most cases the matter is referred to the agency concerned, and the subsequent investigation
and the implementation of any recommendations are closely monitored by the CCC.
The Criminal Code Act 1913 provides a suite of offences relating to corruption and abuse of
office, e.g. corruption, falsification of records, and bargaining for public office. These offences
carry a maximum term of imprisonment of 7 years.
Northern Territory
Generally, complaints about police are investigated by the Ethical and Professional Standards
Command (EPSC) of the Northern Territory Police Force. In this instance, the NT Police Force
must:
 make timely and effective enquiries;
 keep a complainant informed of the progress of their inquiries and advise them of the of
the outcome; and
 seek the views of the complainant on whether they are satisfied with the way in which
the matter was addressed.
A complaint can be dealt with by the police in different ways including informal methods of
resolution (conciliation) to a full investigation – depending on the nature and complexity of the
conduct or problem identified.
The NT Police Force can take action to address any misconduct identified by a complaint. The
Police Administration Act 2009 provides that the following sanctions may be imposed for
breaches of discipline:
 counsel and caution;
 fine;
 reduction of rank or salary;
 transfer or suspension;
 order to pay restitution or compensation; or
 dismissal.
Alternatively, in limited circumstances, the NT Ombudsman may investigate complaints
against police. However, the role of the Ombudsman is usually to oversee and review the way
in which police deal with complaints and ensure that complaints are handled fairly and
effectively. Generally, any complaints made directly to the Ombudsman are referred to the NT
Police Force for action.
Tasmania
Complaints against Tasmanian Police may be progressed to the Tasmanian Ombudsman or
directly to the Department of Police and Emergency Management (DPEM). It is the role of the
DPEM to investigate all matters referred from the Ombudsman.
The Internal Investigations Unit within the DPEM is responsible for the investigation and
management of all complaints made against police. Investigations are conducted in a manner
which ensures that the organisation's high standards of professional service and ethical conduct
are maintained. The objective of an investigation is to:
 collate information relating to the allegation as quickly as possible;
 consider the information collected and to draw conclusions objectively and impartially;
 maintain procedural fairness in the treatment of witnesses and the person who is the
subject of the disclosure; and
 make recommendations arising from the conclusions drawn concerning remedial or
other appropriate action.
Alternatively, if the matter is trivial, vexatious, misconceived or lacking in substance, the
DPEM may decide not to investigate a disclosed matter.
The Police Service Act 2003 establishes a code of conduct requiring police officers to behave
with honesty and integrity in the course of their duties (section 42). Section 44 of the Act,
outlines the procedures for making a complaint:




must be made in writing or in a manner approved by the Commissioner;
must be made within 6 months after the conduct became known to the complainant;
must contain details of the conduct; and
does not need to identify the complainant.
Following an investigation by the Internal Investigations Unit and a positive finding of breach
of the Tasmania Code of Conduct, s43 of the Act provides a list of available sanctions that may
be imposed by the Police Commissioner:
 direct that appropriate counselling be provided to the police officer;
 reprimand the police officer;
 impose a fine not exceeding 20 penalty units;
 direct that the remuneration of the police officer be reduced within the range of
remuneration applicable to the police officer;
 reassign the duties of the police officer;
 transfer the police officer;
 in the case of a non-commissioned police officer, place that police officer on
probation for any specified period the Commissioner considers appropriate;
 in the case of a non-commissioned police officer, demote the police officer;
 in the case of a non-commissioned police officer, terminate the appointment of the
police officer;
 in the case of a commissioned police officer, recommend to the Minister that the
appointment of the police officer be terminated or that the police officer be demoted
or placed on probation for any specified period the Commissioner considers
appropriate.
Under an investigation, a Police Officer can be compelled to provide financial statements if
there are reasonable grounds to suspect the officer has engaged in behaviour that is corrupt,
unethical or likely to constitute an indictable offence. Soliciting or accepting bribes are
offences.
Inter-jurisdictional comparison No.11:
Whistleblowing
Background
An examination of the mechanisms in place to manage whistleblowing in other jurisdictions,
both in Australia and overseas, demonstrates that there are broad similarities across the field of
whistleblowing legislation. Each jurisdiction defines whistleblowing in roughly similar terms,
establishes a process for protected disclosures and provides an almost uniform battery of
immunities and protections for whistleblowers.
Some of the key differences between regimes relate to the scope of Acts, with the broadest
legislation applying to both the private and public sector wrongdoing and allowing any
individual, whether internal or external to the organisation to make disclosures. The narrowest
regimes only apply only provide for disclosures relating to public sector wrongdoing and only
allow for protected disclosures made by people internal to an organisation about which the
disclosure is being made.
There is also some variance in the types of conduct about which disclosures can be made.
While all jurisdictions capture a range of variously described dishonest and illegal conduct, and
most jurisdictions capture action which poses a substantial risk to health, public safety and the
environments, some regimes are more extensively prescriptive in the type of behaviour that can
be the subject of a disclosure.
Most regimes provide for confidentiality of whistleblowers (to the extent that it does not
impinge on procedural fairness) though the position with regard to the acceptance of
anonymous complaints is not as uniform. Further, a small number of regimes require the
whistleblower to assist with investigations to gain the protections offered to them under the Act.
The final major difference between regimes relates to the investigation of disclosed
information. Here, there is a division between the jurisdictions that set up direct the receipt and
investigations of complaints to be carried out through internal agency lines and those which
have a central investigating body, such as the Ombudsman or a designated Commissioner to
act as the central point of disclosure receipt and investigation.
The Whistling While They Work project, a three year collaborative research project funded by
the Australian Research Council and 14 partners, including the Commonwealth Ombudsman,
Australian Public Service Commission and public integrity bodies from New South Wales,
Queensland, Western Australia, the ACT and the Northern Territory, has released two reports,
in February 2009 and July 2009, which identified 10 areas for action in all jurisdictions and
most public agencies, namely:
1.
more comprehensive agency systems for recording and tracking employee reports of
wrongdoing
2.
agency procedures for assessing and monitoring the risk of reprisals or other conflict
for those who report
3.
clearer and better advice for employees on the range of avenues available for reporting
wrongdoing
4.
basic training for public sector managers in how to recognise and respond to possible
public interest disclosures
5.
a program of training for internal investigators in basic techniques, with special
attention to issues of internal witness management
6.
7.
8.
9.
10.
adoption and expansion of structured support programs for employees who report
wrongdoing
improved mechanisms for monitoring the welfare of employees who report wrongdoing,
from the point of first report
more detailed and flexible agency procedures for the investigation and remediation of
reprisals and breaches of duty of care
a dedicated oversight agency or unit for the coordination of responses to employeereported wrongdoing
legislative action to provide more effective organisational systems and realistic
compensation mechanisms, and to recognise public whistleblowing.
Queensland
Queensland was one of the first jurisdictions in Australia to introduce legislation to protect
whistleblowers. The Whistleblowers Protection Act 1994 provides whistleblowers with
protection from civil and criminal liability for making a disclosure and makes it a criminal
offence to take reprisal action against a public service employee who has made a public interest
disclosure. The Whistleblowers Protection Act 1994 is administered by the Public Service
Commission, which produces guidance and advice to those considering making a public
interest disclosure.
The whistleblower protection scheme protects public interest disclosures which can be about:
 official misconduct;
 maladministration that adversely affects anybody’s interests in a substantial and
specific way;
 negligent or improper management by a public officer, a public sector entity or a public
sector contractor that directly or indirectly results, or is likely to result, in a substantial
waste of public funds; or
 a substantial and specific danger to public health or safety, or to the environment.
Under the Whistleblowers Protection Act 1994, each public sector agency is responsible for
receiving public interest disclosures about the conduct of its officers, managing the disclosure
process and taking steps to protect its officers from reprisals.
The Whistleblowers Protection Act 1994 was amended in March 2007 to allow public interest
disclosures to be made to Members of Parliament and to extend whistleblower protection to
people engaged by public sector entities on an individual contract of service, such as many
casual nurses. These amendments followed a review of the Act commenced on the
recommendation of the Parliamentary Crime and Misconduct Committee (PCMC) and
followed consideration of the recommendations of the Queensland Public Hospitals
Commission of Inquiry.
On 20 April 2009, the PCMC tabled its Three Yearly Review of the CMC (Report No.79),
which included a recommendation that government review the Whistleblowers Protection Act
1994 in light of the findings of the Whistling While They Work research project.
Commonwealth
The Commonwealth lacks a single, comprehensive piece of legislation providing protection for
whistleblowers. A general protection against victimisation and discrimination for
whistleblowers who are Australian Public Service employees is provided in section 16 of the
Australian Public Service Act 1999. Further, part 9.4AAA of the Corporations Act 2001 was
inserted in 2004 and provides immunity and protection from retaliation from any company
employee who reports a suspected violation of the Corporations Act 2001. This provision is
unconventional in that it applies to private sector corporations and employees.
On 25 February 2009, the Standing Committee on Legal and Constitutional Affairs released a
report entitled Whistleblower protection: a comprehensive scheme for the Commonwealth
public sector that recommended the introduction of a comprehensive Commonwealth Public
Interest Disclosure Act. The recommendation outlined a framework that included a range of
definitions, powers and protections similar with the common features among Australian state
jurisdictions. At the time of writing, no further action had occurred in relation to the report.
New South Wales
Whistleblowing in New South Wales is dealt with under the Protected Disclosures Act 1994.
The legislation seeks to enshrine and build upon existing procedures in relation to
whistleblowing, provide protection from retaliation to those who make a public interest
disclosure and to ensure that allegations are properly investigated. The Act applies to
disclosure in relation to the whole of the public sector, including police and local government
conduct.
Under the Act, reports can be made in respect of three areas of conduct: corruption,
maladministration and serious and substantial waste of public monies. Unlike Queensland, the
New South Wales legislation does not provide an avenue for disclosures to be made in relation
to risks to health, public safety or the environment.
The protections granted under the Act are restricted to public officials and can only be accessed
if the whistleblower overcomes a threshold test. In the case of a disclosure to an investigating
authority, the party making the disclosure must show or tend to show that the official has, or
proposes to engage in the proscribed conduct. The test is assessed objectively, meaning that an
honest but mistaken disclosure may not attract protection under the Act. If the disclosure is
made to a Member of Parliament or a journalist, the whistleblower must demonstrate the
allegation to be substantially true and that they have reasonable grounds for believing that the
disclosure is substantially true.
The Act provides that disclosures can be made anonymously to the extent that it does not
impinge on rights to procedural fairness for the subject of the allegation. The Act also has in
place measures to protect against frivolous or vexatious disclosures.
Victoria
Victoria deals with whistleblowing under the Whistleblowers Protection Act 2001 which sets
out a similar set of purposes to the NSW legislation, namely, to encourage and facilitate the
disclosure of improper conduct by public officers and public bodies; to provide protection
against reprisals that may be suffered as a result of disclosures; and to ensure disclosures are
properly investigated.
The concept of improper conduct is given a wide ambit in Victoria, comprising corruption;
substantial mismanagement of public resources; conduct posing a substantial risk to health,
public safety or the environment; criminal activity; and conduct that would give grounds for
dismissal if carried out by a public officer. Unlike other jurisdictions, Victoria does not require
the person making a disclosure under the Act to be a public officer, instead allowing
complaints to be made by any natural person.
Disclosures can be made to the relevant public body or the Ombudsman, the latter of which is
granted wide powers and responsibilities to receive, refer and investigate complaints, making it
a central body under the Act. In particular, the Ombudsman has a duty to investigate upon
authorities any complaint they have determined to constitute a public interest disclosure.
Those making the disclosure are afforded the protections of the Act if they can demonstrate a
reasonable belief that observed conduct constitutes wrongdoing. The protections include
immunity from liability under administrative processes, as well as breach of confidentiality and
defamation actions, in relation to the making of the disclosure. The legislation establishes that
the undertaking of reprisals against whistleblowers is an offence punishable by two years
imprisonment and actionable for damages. As with other jurisdictions, Victoria allows
disclosures to be made anonymously and has in place measures to guard against trivial or
vexatious complaints.
Australian Capital Territory
The law in relation to whistleblowing in the Australian Capital Territory is governed by the
Public Interest Disclosure Act 1994. The Act provides for the disclosure of reasonably
suspected wrongdoings in the ACT public sector such as dishonesty or bias; misuse of official
information; negligent or improper management of government funds; attempts to influence a
public official to act improperly; and, the victimisation of a person on the basis that they have
made a public interest disclosure.
Any person can make a complaint under the Act and, provided that they demonstrate that they
have information that tends to show wrongdoing has occurred, they can access the protections
of the Act which includes limitation of legal action that can be taken in relation to the act of
disclosure and protections from victimisations. Unlawful reprisals are made an offence
punishable by one year’s imprisonment or a fine of $10,000.
Disclosures under the Act can be made to the agency where the conduct has occurred, an
agency thought to have the power to investigate or the Ombudsman or Auditor General.
Government agencies are required to set up procedures to dealing with disclosures, acting
against reprisals and they must treat the complaints that they receive confidentially and take
appropriate action. They are not obliged to investigate complaints but may only refuse for the
reasons provided in the Act (they are not the right body; the disclosure does not come under the
Act; another body has dealt with the matter; they think the disclosure is without basis; or, the is
a better way to deal with it.) The agency must provide the complainant with reasons why they
have refused to investigate.
Complaints may be rejected on the basis that they are trivial or vexatious but, unlike other
jurisdictions, complainants are asked to identify themselves and agencies are not required to
investigate anonymous disclosures.
Tasmania
Whistleblowing in Tasmania is dealt with under Public Interest Disclosure Act 2002 which
defines improper conduct in the same terms as in the Victorian Act. A key difference between
the whistleblowing legislation in the two jurisdictions is that protection under the Tasmanian
Act is restricted to disclosures made by public officers and contractors engaged with a public
body.
Disclosure can be made to the Ombudsman or to the public body to which the improper
conduct relates. If the disclosure is deemed to be to a protected disclosure, the whistleblower
will be subject to the same suite of protections offered by the Victorian legislation with an
additional provision that offers continuing protection under the Act to a whistleblower who
ceases to be a public officer or contractor. The taking of detrimental action against someone
for making a protected disclosure is an offence is an offence punishable by two years
imprisonment or a fine of up to 240 penalty units.
Complaints may be made anonymously and the Ombudsman has a duty to investigate
complaints unless they find them to be misconceived, trivial or vexatious; a matter that has
already been dealt with by another body; a matter in which proceedings have commenced in
another body; a matter that is more than 12 months old and the complainant has failed to
provide an adequate explanation for the delay. If the Ombudsman refuses to investigate, they
must provide reasons.
South Australia
The South Australian Whistleblowers Protection Act 1993 provides protections to those who
appropriately disclose public interest information. Any person (not just public officers) can
make a disclosure under the Act and public interest information is defined as information that
tends to show that at an adult person or body corporate (not just public officer or body) has
been involved in an illegal activity; an irregular or unauthorised use of public money; a
substantial mismanagement of public resources; conduct that creates a substantial risk to public
health or safety or the environment; or, information that tends to show a public officer is guilty
of maladministration. In this respect, the South Australian Act has the broadest scope in
Australia.
The Act offers a series of immunities and protections in relation disclosures, including
immunity from civil and criminal liability for the act of making the disclosure and protection
against victimisation by making such behaviour actionable as a tort or under the Equal
Opportunity Act 1984. In this respect, it is somewhat less punitive than the East Coast
jurisdictions which establish offences punishable by imprisonment. To access these
protections, the disclosure must satisfy a semi-subjective threshold test, which requires the
discloser to believe on reasonable grounds that the information is true or, if they are not in a
position to determine this, they must believe on reasonable grounds that the information may
be true, and is of sufficient significance to justify further investigation. Further, the disclosure
must be made to a person who, in the circumstances, is a reasonable and appropriate point of
call, non-exhaustive examples of which are listed in the Act.
The Act imposes a duty on the person who makes the disclosure to assist with any official
investigation (this does not include an external investigation). Failure to assist will result in the
forfeiture of protection. Finally, the Act allows the identity of the informant to be kept
confidential but does not provide for anonymous disclosures.
Western Australia
The Western Australian Public Interest Disclosure Act 2003 provides that any person can make
an appropriate disclosure of public interest information to the proper body. Public interest
information is defined as information that tends to show that a public authority, officer or
public service contractor has or intends to be involved in improper conduct; an offence under
written law; substantial mismanagement or irregular or unauthorised use of public funds; acts
that present a substantial risk to public health, safety or the environment; or acts that may be
investigated by the Parliamentary commissioner.
The threshold test for a deemed public interest disclosure is similar to the South Australian
legislation, requiring the person who makes the disclosure to believe on reasonable grounds
that the information is true or, if they have no reasonable grounds to form an opinion as to the
truth of the information, to believe on reasonable grounds that the information may be true. A
list of authorities which can properly receive complaints is provided and includes the state’s
Corruption and Crime Commission. There is no provision for making anonymous disclosure.
If a public interest disclosure is made to a proper authority, the authority has an obligation to
carry out an investigation unless the matter is trivial; the disclosure is frivolous or vexatious;
there is evidence due that the time that has elapsed since incident; or, the matter has been
adequately investigated by another body. If an authority refuses to investigate, they must
provide a reason. If the proper authority forms the opinion that the matter complained of has
occurred, the Act imposes a duty to take action to prevent the matter continuing or occurring
again and, if appropriate, to refer the matter to the police or take disciplinary action.
The Act provides the usual corpus of protections for whistleblowers, including immunity from
civil and criminal liability and termination of employment for making a disclosure. Further,
the Act makes reprisals an offence punishable by up two years imprisonment or a fine of
$24,000. As with the South Australian legislation, the confidentiality of the informant is
protected but all legislative protections may be forfeited if the informant fails, without
reasonable excuse, to assist investigating authorities in relation to the matter.
Finally, the Act puts in place implementation and monitoring mechanisms, establishing that the
principal executive officers of authorities have to put in places systems and guidelines for the
receipt and investigation of disclosures, and providing that Commissioner for Public Sector
Standards is to oversee the implementation and functions of the Act.
Northern Territory
The Northern Territory Public Interest Disclosure Act 2008 is the most recent piece of
legislation of its type in Australia, having commenced on 31 July 2009. Under the legislation,
an individual (and only an individual) may make a disclosure of any public interest information
which is defined as information that, if true, tends to show that a public officer or public body
has engaged in improper conduct. Disclosures may be made anonymously.
Improper conduct is defined extensively, comprising involvement in bribery; bias, dishonesty
and breach of public trust; misuse of confidential information; substantial misuse of public
funds; action that poses a substantial risk to health, public safety or the environment;
maladministration; acts of reprisal; any act warranting termination of employment; and,
conspiracy to engage improper conduct that would constitute a criminal offence. Uniquely, it
is provided that a disclosure will not be a public interest disclosure if it is based solely or
substantially on a disagreement with a policy that may be properly adopted or an employment
or personal grievance.
The Northern Territory legislation is further distinguished from its Australian counterparts
through its establishment of the independent office of the Commissioner for Public Interest
Disclosures which receives and investigates disclosures. Consistent with majority of
Australian jurisdictions, complaints must be investigated unless the disclosure is an abuse of
process, trivial or contains misleading information; there has been a delay of more than 12
months on the part of the disclosure; the disclosure relates to matters no longer able to be
investigated; the subject matter has been or is being investigated by another body. In the event
of a decision not to investigate, reasons must be provided.
A deemed public interest disclosure will attract the usual protections, including immunity from
civil and criminal liability (including defamation), immunity from disciplinary action and
protection from reprisals. The act of committing reprisals is made an offence punishable by
two years imprisonment or a fine of 400 penalty units as well as being subject to claims for
damages and injunctive relief. The Act also creates a capacity to seek relocation within the
public service in the event of a reprisal.
The procedure for investigation by the Commissioner is enumerated extensively in the Act
with the Commissioner being granted power to require information and documents; require
attendance for examination under oath and to enter and inspect the premises of a public officer
or body. These powers are reinforced by the creation of offences such as providing false
information, obstructing a person in an official capacity and breaching confidentiality relating
to public interest disclosures. The Commissioner also has power to refer a matter to the
Director of Public Prosecutions. Upon the completion of an investigation, the Commissioner
must issue a report on the investigation and inform the discloser of its contents. The
Commissioner is required to release an annual report.
United Kingdom
The law in relation to whistleblowing in the United Kingdom is governed by the Public
Interest Disclosure Act 1998 which provides protections for public interest disclosures in both
the public and private sector. The Act provides protection to workers who make disclosures
relating to a contravention of the law; a substantial risk to public health, safety or the
environment; or the concealment of one of these matters.
The primary pathway provided for disclosures is for them to be made to the worker’s employer
or a Minister of the Crown, however, provision is also made for disclosures to be protected if
they are made through other avenues in particular circumstances. These provisions require the
disclosure to be made in utmost good faith, without personal gain in mind and where there is
no capacity to make a disclosure to an employer, or there is no capacity to make a disclosure to
an employer without suffering detriment. Disclosures to the press can be protected under this
provision.
As with the Australian jurisdictions, a properly made disclosure will attract immunity from
criminal and civil liability for the act of making the disclosure and protection from any
detrimental action being taken against the discloser.
New Zealand
As with the law in the United Kingdom, the New Zealand Protected Disclosures Act 2000
applies to both the public and private sector, allowing the employee of any organisation to
make a disclosure under the Act. The terms “employee” and “organisation” are both defined
widely, the former capturing workers, whether temporary, seconded, volunteer of former
employees, while the latter captures any body, incorporated or unincorporated comprising a
minimum of 1 employer and 1 or more employees. Disclosures can be made in relation to
serious wrongdoings, the definition of which is modelled on and reflects the expansive South
Australian provisions.
The Act directs disclosures and their management through internal processes with disclosures
only being able to be made to the Ombudsman or a Minister of the Crown in the event that
internal processes have been exhausted without a satisfactory outcome. The Ombudsman has
the power to investigate, escalate and review or guide complaints made to organizations. As
with other jurisdictions, a properly made disclosure will allow the discloser to access immunity
from civil and criminal liability in relation to the act of making the disclosure and provides the
discloser with protection from reprisals.
Canada
Whistleblowing in Canada is governed by the Public Servants Disclosure Protection Act which,
as it name suggests, deals exclusively with public sector disclosures. The Act establishes two
bodies, the Office of the Public Sector Integrity Commissioner and the Public Sector
Disclosure Protection Tribunal. Under the Act, any public servant or member of the public
may make a disclosure in relation to a public sector wrongdoing. Wrongdoing encapsulates the
same conduct described in majority of the jurisdictions that have been examined above and
includes contraventions of law; misuse or mismanagement of public sector funds; risks to
health, safety or the environment; a serious breach of a code of conduct established under the
Act and the knowing counselling of someone to commit a wrongdoing.
Disclosures are to be made either internally (the Act requires chief executives to delegate an
officer to receive complaints) or to the Commissioner, although there is limited scope to make
disclosures to the press or public in exceptional circumstances. The Commissioner is charged
with the power to investigate disclosures but must cease any part of the investigation that leads
outside the public sector. Consistent with other jurisdictions that have been examined, the
Commissioner has a set of grounds by which he or she may refuse to investigate a disclosure
and is obliged to provide reasons in the case of a refusal.
Those who make disclosures are afforded the usual immunities and protections available to
whistleblowers in other jurisdictions and may complain to the Commissioner in the case of
reprisals. The Commissioner has the power to investigate complaints in relation to reprisals, to
recommend conciliation, approve a settlement and refer a suspected reprisal to the Tribunal for
their determination. The Commissioner also has the a limited capacity to provide assistance
for the legal expenses of a whistleblower in exceptional circumstances ($1,500-$3,000) and the
Tribunal has power to compensate up to $10,000 for pain and suffering.