Tasmanian Bills Clause Notes Tasmanian Bills Clause Notes[Index] [Search] [Download] [Bill] [Help]
CLAUSE NOTES
INTEGRITY COMMISSION AMENDMENT BILL 2011
Clause 1: Short title
sets out the name of the proposed Act Integrity
Commission Amendment Bill 2011
Clause 2: Commencement
provides that the Bill will commence on the day of
Royal Assent.
Clause 3: Principal Act
identifies that the Integrity Commission Act 2009 is
being amend by this Act.
Clause 4: Section 4 (of the 2009 Act) amended
(Interpretation)"
the definition of "investigator" is amended to include
references to investigations under ss 45, 87, 88, 89
as well as s 44;
the definition of "public authority is amended to
refer to subsection 5(1) (which is itself being
amended to clarify the defn of "public authority").
the definition of "public officer" is amended to
clarify that certain persons in section 5(2) (Judges,
Magistrates etc) are not "public officers" for the
purposes of the Act (as they are not "public officer"
they will not be "designated public officers" either).
Clause 5: Section 5 amended (Public authorities)
amends paras (f) and (g) of s 5(2) to clarify that it is
only the members of a tribunal or the Industrial
Commission who are excluded from the definition
(s 4(2) could otherwise mean all the staff etc of a
tribunal or the Industrial Commission were
excluded).
Clause 6: Section 6 amended (Designated public
officers)
amends the section by omitting subsection (2) this
matter is now covered by the redefinition of "public
officer" above (those listed in s5(2) are now neither
"public officers" nor "designated public officers" for
the purposes of the Act.
Clause 7: Section 33 amended (Complaints)
adds a new subsection (1A) allowing anonymous
complaints to be lodged with the Commission.
Clause 8: Section 37 amended (Report of assessor)
Words have been added to align the report of the
assessor with the actions of the CEO after receipt
of the report (see s 38(1)). After formal assessment
the assessor reports to the CEO who may take a
range of steps including to dismiss or not accept the
complaint.
Clause 9: Section 45 amended (Own motion
investigations)
The changes to section 45 are to align the processes
of "own motion" investigations with investigations
initiated by a complaint and to make the process
clearer as to the appointment of the investigator.
Under the changes, the Board would make the
decision to conduct an investigation then the CEO
would appoint the investigator (as the CEO does for
complaints in s 44).
(a) the change means that the Board is
determining that an investigation should be
conducted leaving the actual administrative
processes (appointing investigator etc) to the
CEO to carry out;
(b) this change is merely to clarify the process
after the Board determines to conduct the
investigation;
(c) this is to clarify that the investigation is into
whether misconduct has occurred not into
whether misconduct is merely suspected;
(d) this is merely to enable the addition of para
(d);
(e) new para (d) has been added to align the
investigator's role with the matters that the
Board might seek to have investigated in
subsection (1)(d) (subsec 1(a), (b)& (c) are
replicated in subsection (2) but (1)(d) was
omitted.
Clause 10: Section 51 amended (Search warrants)
The Act provides that a range of notices are to be
treated as confidential documents which means they
can be revealed to third parties only in limited
circumstances (s 98). To be treated as a confidential
document the investigator, Commission or Tribunal
has to include in the document a statement to that
effect. Warrants issued under s 51 are issued by the
court and not by the Commission so it is not
possible for the Commission to include the
additional statement in the notice.
Clause 11: Part 6 Division 2 Heading amended
The heading of the Divisions has been amended to
reflect minor changes made in s 57.
Clause 12: Section 56 amended (Opportunity to provide
comment)
The Act does not deal clearly with the need for
some difference in the processes of investigations
based on whether they arise from a complaint or an
own motions determination. In a number of places
the Act refers to "the person subject to the
complaint" which does not pick up persons subject
to "own motion" investigations against whom no
complaint (which is defined in s 4) has been made
under s 33. This change (and subsequent changes) is
to ensure that persons who are investigated on an
own motion determination are dealt with similarly in
terms of being advised of the investigation, being
able to make submissions and being given details of
the outcome.
Clause 13: Section 57 amended (Report by chief
executive officer)
As with cl 12 the changes to s 57(2)(b) & (d) are to
clarify that persons whose conduct is being
investigated on the basis of an own motion
determination (s 45) are dealt with similarly to
persons subject to a s 33 complaint.
This section currently deals with the actions of the
CEO after he/she receives the investigator's report.
The addition of new subsection (3) is to cover the
provision in s 35(1) which provides that the CEO
may make such a recommendation to the Board
after receiving the complaint and without seeking a
report from an assessor or investigator.
Clause 14: Section 58 amended (Determination of the
Board)
As noted under cl 12 there is a need to align the
processes of own motion investigations, reports etc.
The changes to section 58 are to clarify that not
only the person about whom a complaint has been
lodged but a person being investigated on an own
motion determination are to be treated similarly.
Clause 15: Section 59 amended (Persons to whom
notice of determination is to be given)
This again seeks to align the treatment of persons
being investigated on an own motion determination
with those being investigated on the basis of a
complaint. The Board will be responding to the
results of the investigation regardless of how the
investigation was initiated complaint or own
motion.
Clause 16: Section 61 amended (Persons to whom
notice of determination is to be given)
This is again to align the processes of complaint and
own motion matters.
Clause 17 Section 65 amended (Notice of inquiry)
As Tribunal inquiries may result from both
complaints and own motion determinations the
terminology is again being varied to cover either.
Clause 18: Section 66 amended (Right of representation)
The current section provides that a person subject
to a complaint (ie made under s 33) has rights to be
represented at a Tribunal hearing. The amendment
allows the person subject to an own motion
investigation/inquiry the same rights.
Clause 19: Section 70 amended (Response to notice of
inquiry)
These changes follow from the need to treat the
persons subject to a complaint and a person subject
to an own motion investigation/inquiry equally.
Clause 20: Section 78 amended (Determination of
Integrity Tribunal)
This change is also to align the complaint based and
the own motion based inquiries.
Clause 21: Section 87 amended (Investigation or dealing
with misconduct by designated public
officers)
The powers of investigation and inquiry are set out
in Parts 6 and 7 of the Act. Those parts are
specifically referenced in other similar sections
(sections 45 and 88(1)(a)) so it was considered that
this section should be similarly worded.
Clause 22: Section 89 amended (Own motion
investigation)
The section provides for own motion investigations
of police misconduct but does not specifically
provide how or by whom the decision to conduct
the investigation might be made. Section 7(2)
defines the Integrity Commission as including the
Board, CEO, staff, investigators etc. Section 45
provides that other own motion determinations are
to be made by the Board and while it would have
been expected that the Board would make the
determination under this section the changes to this
section will clarify that the Board would be the body
making the decision to undertake an "own motion"
investigation of police misconduct.
The second change (subclause b) is to insert a word
omitted in the original Bill.
Subclauses (c) and (d) add an additional paragraph to
the subsection to align it with the previous
subsection of the Act ((89(1)(c)).
Subclauses (e) and (f) provide that if the Board
determines to undertake an own motion
investigation of police misconduct the Board (rather
than CEO or staff) decides whether to notify the
Commissioner of Police of the decision.
Clause 23: Section 98 amended (Certain notices to be
confidential documents)
The current section makes it an offence to pass on a
confidential notice except in specific circumstances.
Para 98(2)(b) implies that a person to whom the
information is imparted is also constrained from
passing on the information to another person but
subsection (1) only allows the person on whom the
notice is served to rely on the excuses.
The changes (new subsections (1) and (1A) and
changes to current subsection (2)(b)) seek to ensure
that both the person who receives a confidential
notice from the Commission or Tribunal and any
person to whom they legitimately disclose it are
bound to maintain the confidentiality of the notice.
The new subsection (1B) is to ensure that not only
the notice itself but anything related to the notice is
also to be held as confidential. Preventing the
person from disclosing that a notice has been issued
is one issue but it is also necessary to constrain the
person from disclosing that they have responded to
the notice by providing information, giving evidence
etc.
The new subclause (3) and (4) provide that
obligations of confidentiality may be lifted by the
Commission or Tribunal.
Clause 22: Section 101 repealed (Right to Information
Act does not apply)
Section 101 provides that the RTI Act does not
apply to complaints and their investigation. The
Integrity Commission Bill was debated in 2009 at
almost the same time as the Right to Information Bill
and both contained provisions intended to provide
that the Right to Information act did not apply to
the Commission's dealing with misconduct. Section
6 of the RTI Act excludes from the operation of RTI
Act all the Tribunal's and Commission's activities,
other than their administration so this provision is
no longer needed.
Part 3 Ombudsman Act amended
Clause 25: Principal Act
Defines Ombudsman Act as the relevant Act in Part
3
Clause 26: Section 26 (of the Ombudsman Act)
amended (Secrecy etc).
Amends the Ombudsman Act to allow the
Ombudsman (who is a member of the Board of the
Commission) to disclose information obtained as
the Ombudsman to the Commission.
Part 4 State Service Act 2000 amended
Clause 27: Principal Act
Defines State service Act 2000 as the relevant Act in
Part 4.
Clause 28: Section 24 (of the SSA) amended
(Relationship with Ombudsman and other
persons)
Inserts a new subsection in the State Service Act to
allow the State Service Commissioner to disclose
information he/she has obtained as Commissioner
to the Integrity Commission.
Part 5 - Repeal
Clause 29: Repeal of Act
In accordance with new drafting practice the clause
provides that the Act will be repealed on the 90th
day after it commences the amendments to the
various Acts will be incorporated in those Acts on
commencement.