2009 (No. 24) _______________ PARLIAMENT OF TASMANIA _______________ JOINT SELECT COMMITTEE ON ETHICAL CONDUCT Final Report ‘Public Office is Public Trust’ ______________ Brought up by Mr Wilkinson and presented to the Deputy President of the Legislative Council pursuant to Standing Order 197 (L.C.). ______________ MEMBERS OF THE COMMITTEE Legislative Council House of Assembly Mr Wilkinson (Chair) Mr Best Mr Hall Mr Llewellyn Mr Martin Mr McKim Ms Thorp Mr Rockliff Table of Contents 1 Appointment & Conduct of the Inquiry ................................................. 2 2 Summary of Findings .................................................................................. 5 3 Summary of Recommendations ............................................................ 10 4 Overview.................................................................................................... 17 5 Parliament ................................................................................................. 26 6 Executive ................................................................................................... 50 7 State Service ............................................................................................. 57 8 Auditor-General: Office of the............................................................... 68 9 Ombudsman: Office of the .................................................................... 70 10 Director of Public Prosecutions: Office of............................................. 80 11 Tasmania Police........................................................................................ 83 12 Public Interest Disclosures Act 2002..................................................... 102 13 Commissions of Inquiry Act 1995.......................................................... 107 14 Freedom of Information Act 1991........................................................ 111 15 Criminal Code Act 1924........................................................................ 117 16 Other review mechanisms .................................................................... 121 17 Need for Augmentation........................................................................ 123 18 Tasmanian Integrity Commission ......................................................... 160 19 Other matters.......................................................................................... 168 20 Conclusion............................................................................................... 172 21 Appendices............................................................................................. 174 1 APPOINTMENT & CONDUCT OF THE INQUIRY 1.1 The Honourable Member for Nelson, Jim Wilkinson, the eventual Chair of this Committee, on 17 April 2008 gave notice of a motion in the Legislative Council (the Council) that he intended to move for the establishment of a Select Committee of the Council to inquire into and report upon:- … the issue of ethical conduct, standards and integrity of elected Parliamentary representatives and servants of the State in performing their duties with particular reference to: (a) an assessment of mechanisms currently available to address ethical and open Government in Tasmania; (b) whether existing entities are appropriately equipped to fulfil this function; and (c) the quantum and type of additional resources which may be required; the investigation of possible alternative mechanisms to address issues of ethical and open Government in Tasmania; an examination of legislative requirements and whether legislative change may be required; and any matters incidental thereto.1 1.2 The Honourable David Bartlett MP, on 27 May 2008, gave notice of a motion to establish this Committee, the first day he appeared in the Chamber of the House of Assembly (the Assembly) as Premier. 1.3 The final resolution received the support of the Assembly without a division being taken, as was the case when the Council considered the message from the Assembly requesting its concurrence with the resolution. 1.4 The resolution was as follows:- That a Joint Select Committee be appointed, with power to send for persons and papers, with leave to sit during any adjournment of either House exceeding 14 days, and with leave to adjourn from place to place to inquire into and report upon the issue of ethical conduct, standards and integrity of elected Parliamentary representatives and servants of the State in performing their duties with particular reference to— (a) a review of existing mechanisms currently available to support ethical and open 1 Legislative Council, Notices of Motion and Orders of the Day, Session of 2008, No. 1. 2 Government in Tasmania and the capacity to conduct independent investigations; (b) an assessment of whether those mechanisms need to be augmented by the establishment of an Ethics Commission or by other means and if so by what means; and (c) any matters incidental hereto. 1.5 The Committee resolved at its first meeting of 17 June 2008 that unless otherwise ordered, the Committee would operate pursuant to the Standing Orders of the Council. 1.6 The Committee further resolved at that meeting, to invite, by way of advertisement on the Parliament of Tasmania Internet page and in the three daily regional newspapers, interested persons and organisations to make a submission to the Committee in relation to the Terms of Reference. In addition to such general invitation, the Committee directly invited a number of persons and organisations to provide the Committee with any information they deemed to be relevant to the inquiry. 1.7 The Committee received 136 submissions and 44 documents as exhibits. 1.8 As previously reported2, the Committee received a number of submissions from persons which detailed their negative experiences in dealings with public bodies and/or officials in the apparent expectation that this Committee was itself a form of appeals body or investigative authority which had powers and functions that would allow it to investigate or revisit such cases and recommend specific remedy. It is quite clear in the view of the Committee that the inquiry did not extend to an investigation of such cases which was conveyed to relevant witnesses. 1.9 The Committee carefully considered the receipt of all submissions. Such deliberations were conducted within the context of both: the strong desire of the Committee for an open process; and the need to ensure the inquiry was conducted in such a manner to ensure that reputational harm was not caused by the publication of evidence. 1.10 Accordingly, with the exception of one submission which the Committee resolved not to receive as it was submitted 2 Ethical Conduct, Joint Select Committee on: Interim Report (Paper No. 25 of 2008 (L.C.)) 3 anonymously, all submissions were received and taken into evidence, thus informing the Committee’s inquiry. 1.11 The submissions received, taken into evidence and ordered by the Committee to be reported are listed in Appendix ‘A’. Such documents were reported with the first Interim Report of the Committee. 1.12 The Committee further resolved however, that some submissions should not be reported in order to ensure that no breaches of natural justice occurred by the denial of any right of reply. Such submissions are listed in Appendix ‘B’. 1.13 The submission resolved by the Committee not to be received is Appendix ‘C’. Documents tabled by witnesses in the course of the hearings and resolved to be reported by the Committee are listed in Appendix ‘D’. 1.14 Documents tabled by witnesses in the course of the hearings and resolved not to be reported by the Committee are listed in Appendix ‘E’. 1.15 In order to enable the publication of the transcripts of evidence heard by the Committee in public the Committee provided the Houses with two further Interim Reports3. 1.16 The Committee met on 23 occasions, such meetings being conducted in Hobart, Launceston and Devonport. A Sub- Committee was appointed for the purpose of conducting interviews in Brisbane and Sydney, such Sub-Committee met on three occasions. 1.17 The ‘default’ position for the Committee hearing evidence was to examine witnesses in public. The Committee did however resolve on occasion to hear witnesses in camera. With one exception, the transcripts of evidence heard in camera were resolved by the Committee not to be published. The exception was the evidence of the Solicitor- General. The Committee indicated to the Solicitor-General at the time that it was likely that some of his evidence may be utilised in the report, the Solicitor-General indicated to the Committee that he had no issue with such proposition. 1.18 The Minutes of the proceedings of the Committee and Sub- Committee are detailed in Appendix ‘E’. 3 Ethical Conduct, Joint Select Committee on: Interim Report 2 (Paper No. 26 of 2008); and Interim Report 3 (Paper No. 8 of 2009) 4 2 SUMMARY OF FINDINGS The Committee finds that on the evidence presented, the prescriptions of the Electoral Act 2004 regarding the conduct of candidates in relation to: elections: campaigning; and advertising, provide a level of protection appropriate to ensure the proper conduct of elections in Tasmania. The Committee finds that on the evidence presented, the prescriptions regarding the candidature of State Servants provide the separation from their official position appropriate to enable their participation in election campaigns. The Committee finds that on the evidence presented, the prescriptions of the Constitution Act 1934