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Integrity Commission (Members of Parliament) Bill 2021

Cassy O'Connor MP  -  Wednesday, 30 June 2021

Tags: Integrity, Integrity Commission, Parliament, Legislation

Ms O'CONNOR (Clark - Leader of the Greens - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

Mr Speaker, this is an act to amend the Integrity Commission Act of 2009 to provide the circumstances when a member of parliament is still considered a member of parliament despite the vacation of their seat.

We bring on this amendment bill in our first private members' time because this is a matter of maintaining a robust democracy, integrity during election campaigns, and transparency about the conduct of public officers during the election campaign period.

Just in case anyone is in any doubt, every member of parliament in this place is a public officer for the purposes of the Integrity Commission Act 2009, other than, as the act currently stands, between the dissolution of parliament and the declaration of the polls. We would argue, and we will provide evidence, that it is during the campaign period where there is greater opportunity for misconduct, for funds to be donated or contributed, or promises made that do not stand up to an integrity test.

Mr Speaker, on 10 June this year the Greens received correspondence from the Integrity Commission that advised that the Integrity Commission Act 2009 does not apply to members of parliament between the dissolution of a relevant House in which that member is a member, and the declaration of the polls. Between these two periods, a member of parliament is no longer a member of parliament under the Integrity Commission Act.

However, while an incumbent may no longer be a sitting member of parliament, they still retain benefits that the office confers. These benefits include staffing and resource allocations, formal and informal influence during the caretaker period, access to electoral rolls, and general community influence.

This bill amends the Integrity Commission Act 2009 to ensure that an incumbent member of either House of parliament remains a member of parliament for the purposes of the act during an election, between the vacation of their seat and nomination day and, if the person contests the election as a candidate, between nomination day and polling day.

Mr Speaker, this amendment bill ensures that an incumbent contesting an election who retains numerous benefits of office is still accountable under the Integrity Commission Act 2009.

The Integrity Commission website provides the following examples of misconduct, misuse or unauthorised removal of property belonging to a public sector organisation - •

the accepting of a gift or benefit for a particular decision or action •

failing to declare or appropriately manage a conflict of interest, and looking up or releasing information without proper authority.

These examples of misconduct without exception can all still occur during an election period.

We believe this is an amendment that should be supported by all members. Why would this parliament collectively not take the opportunity to ensure that the Integrity Commission Act 2009 is robust and that the Integrity Commission has the power to investigate potential misconduct or unethical conduct during the campaign period. So, we wrote to the Integrity Commission not long after this year's state election and this is the response, in part, that we received:

Thank you for your complaint about the Tasmanian Premier, the honourable Peter Gutwein MP.

We understand you are alleging that Mr Gutwein did not properly respond to information he received about Liberal Party candidate, Adam Brooks, and you state that, despite his resignation, Mr Brooks' actions and the actions of the Premier have left 'a cloud hanging over' the 2020-21 election result.

You make further allegations about the decision by the Liberal Party of Tasmania to endorse Mr Brooks as a candidate despite a 'history of dishonesty in public office'.

You requested that all of these matters be investigated by the Commission.

We have carefully considered the information you have provided but for the reasons explained below your complaint is not a matter the Commission can deal with.

Section 4 of the Integrity Commission Act specifies that the Commission only has jurisdiction over public officers. During an election period when a person is and is not a public officer is a matter to be determined on the facts.

On the 26 March 2021 the House of Assembly was prorogued and then dissolved for the purposes of the election.

The impact of a dissolution is that a sitting member no longer holds their seat in Parliament. They cease to be MPs and are no longer public officers or designated public officers under the Integrity Commission Act.

Our jurisdiction over M's is not re-engaged until there is a formal declaration of the polls under section 148(1) of the Electorate Act 2004. In this case, the fourteenth of May 2021.

For the sake of clarification, we acknowledge that government ministers retain their ministerial role during the election period and remain subject to the ministerial code of conduct. However, given we only have jurisdiction over ministers due to their status as MPs I can confirm that we do not have jurisdiction over ministers, including the Premier during the election period, that is, between the dissolution of the House and the declaration of the polls.

That letter was signed by Michael Easton, Chief Executive Officer of the Integrity Commission of Tasmania.

We wrote back to the Integrity Commission that day or the following day and sought clarification over the Commission's determination that they do not have jurisdiction.

Dear Ms O'Connor

Thank you for your letter dated 22 June 2021.

We understand that in response to our letter of 9 June 2021 you are enquiring about whether the Premier and individual ministers are in fact public officers and designated public officers. You suggest that: 'A statutory office is defined as an office, the holder of which, is appointed by the Governor or a minister'.

A minister and the Premier are appointed by the Governor. Our firm belief is as state in our previous letter to you which is that the Premier and other ministers, and public officers, for the purposes of the Integrity Commission Act, by virtue of being members of Parliament and not otherwise.

In essence, this is because a minister can only be appointed to that position by the Governor, by virtue of their office as a member of Parliament.

There is currently in the Integrity Commission Act a loophole that is no less than 30 days long. It provides an excellent opportunity for unethical conduct or misconduct or corruption; certainly, conduct that is not in line with community expectations, albeit they are low in relation to the political class.

But what we know is this. During an election campaign, the opportunities for misconduct, the opportunities to be part of a situation that should be examined by our integrity body are very high.

There are many opportunities. We saw that in the 2018 election campaign where the government of the day, the Liberals, went to the election with an election policy that willed, should it take effect, land a windfall gain to the gambling industry of around $250 million overnight. We also saw millions of dollars either through the Love Your Local campaign or the Federal Group, poured into pro-Liberal government or anti-Labor and anti-Green advertising, the source of, we would argue, much of that money is still not known.

We wrote to the Integrity Commission at the time and asked them to investigate the conduct of the 2018 state election. There was another referral to the Integrity Commission which has since been named Operation Hyperion, that asked the Commission to examine the Liberals approach to campaigning which was to travel around the various electorates, particularly the electorates it considered marginal and make promises to sporting organisations.

That investigation, was initiated. The Integrity Commission, after a meeting in this response of 22 June 2021 from Greg Mellick, Order of Australia, Senior Counsel, Chief Commissioner on investigation Hyperion, Commissioner Mellick says -

The Board of the Commission determined to undertake an investigation in February 2019.

That is a little bit under a year after the 2018 state election. This followed meetings with the Tasmanian Electoral Commission, Tasmania Police and the Director of Public Prosecutions.

This was not an afternoon tea catch-up. This is a very weighty, in terms of their authority, group of people who were looking at a referral which had been made in relation to the 2018 campaign. Mr Mellick says -

The investigation was to focus on policies, practices and procedures under which funding is provided to community groups by examining conduct during the 2018 state election.

The grounds for the investigation involve possible conduct or the systemic issues concerning the scale of the election commitments and whether the process for determining recipients was sufficiently transparent.

As we know, any rational examination of the money that was splashed around during the 2018 campaign would assess that there was not sufficient transparency. Commissioner Mellick goes on:

The investigation was also to consider the existing powers of the Tasmanian Electoral Commissioner and whether the Electoral Commissioner should have additional powers.

A draft investigation report was circulated to key stakeholders. I should point out that at that preliminary stage, there was no substance of misconduct confirmed but what we had, following the circulation of the draft report, these are the words of Commissioner Mellick:

The Board revoked its original determination to conduct the investigation on 15 April 2021. This means the draft investigator's report will not be finalised and the matter will not proceed to the Board for a determination under section 58 of the Integrity Commission Act 2009.

The Board has considered how it might progress the matter, including changing the terms of reference. Ultimately, the board decided it would not be in the public interest to commit further resources to reinvestigate the matter, noting that to that stage, no misconduct had been identified.

I respect that the Integrity Commission Board has made a decision not to pursue that investigation. It is difficult to hold up an argument though, that it is not in the public interest to examine promises that are made with public funds during a campaign. It is always in the public interest to have transparency around promises that are made by governments or candidates and the policy effect of those promises or the policy effect of accepting donations s from vested interests like we had in 2018.

It is a matter of regret that that investigation was not followed up, because what we had going into the 2018 election was this extraordinary list. This list says 'Regional and community election commitments - 2018-19 Budget and forward Estimates. Table 1 - Schedule of regional and community election commitment recipients.'. Mr Speaker, there are five pages with a total of 280 sporting and community organisations that were promised sums from $4000 to $20 000 to $48 000 for the St Helens Bowls Club. There was a largish sum of money to the shooters club, I recall, but the donations were quite heavily weighted around electorates that the Liberals at that time were targeting.

This is a scandalous list and it goes to an issue that was raised by the member for Franklin, Mr Winter, this morning about the lack of structural reform and substantive policy from the Liberals, but how they win elections is pretty straightforward. That is my summation anyway, Mr Speaker. We have promises and hundreds of thousands of dollars of election commitments to small organisations all over Tasmania, a very substantial proportion of which were allocated to the northern electorates.

This is a matter that should have been investigated. It reminds me of the community grants rort that happened at a federal level which we found out about last year and, most recently, a completely corrupt car park grant found for the most recent election. I do not have the numbers in front of me now, but the reason it is corrupt is about 95 per cent of the public money that was put into that federal pot of funds to construct car parks went to Coalition or highly marginal electorates. That means that the money was not distributed on merit or need, and by definition that is corrupt. It is 100 per cent corrupt.

That is what we have at a federal level. It is well dodgy at a state level to wander around during a campaign and splash bits of money around in order to do nothing more than buy votes. That is not the way a campaign should run. It certainly makes the point too that the Integrity Commission needs to have jurisdiction over what happens in campaigns.

I quote now from a former Labor government minister for tourism who use to sit in the seat that Mr Jaensch occupies now and who was constantly heckled by my then colleague, Mr McKim. Ken Bacon from the Longford Golf Club told the ABC he knows how the game works. The former Lyons Labor MP personally approached candidates from both major parties at rural event Agfest and asked them if they would commit to funding solar panels for his club. The club received $100 000 after the Liberals were returned to government the same year. 'It is just normal process', Mr Bacon told the ABC, referring to all sides of politics. 'They want votes and sporting clubs want money'.

Of course, during campaigns political parties will make commitments to stakeholders and some of them will be financial commitments. We are not arguing against that in principle, but what we are saying is that there needs to be absolute transparency around those processes and the Integrity Commission should have the authority to examine those processes after an election campaign. We had the frankly dispiriting situation where during this campaign we had money promised to the South Hobart-Sandy Bay Cricket Club, which then got onto social media and urged all its members to vote Liberal. Bingo! That means that promise bought the votes, at least of the management of the South Hobart-Sandy Bay Sharks Cricket Club, and potentially of a number of members. I know there were parents of athletes who were part of that club who were furious and threatening to leave. I am not certain that they did, but the frankly disgusting commentary on social media in an election campaign went to this:

Thanks to the Liberal Government we now have a great starting point for the redevelopment and for all the sporting clubs who use the ground and our community. Special thanks to Madeleine Ogilvie for her help and persistence. We encourage you to vote Liberal.

Ms Ogilvie - I worked really hard for years on that.

Ms O'CONNOR - Then we had 'Please vote Liberal' in another post. and on it went. We had Ms Ogilvie congratulating herself and the Government - 'Such a great announcement and very kind acknowledgement'.

Ms Ogilvie - It was.

Ms O'CONNOR - Yes, talk about yourself a bit more, Ms Ogilvie. What I disagree with here, Mr Speaker, is the politicisation of a community sporting club which would have members from right across the political spectrum, where the management has made a decision because they have been promised cash to advocate for the government of the day. It is disgraceful and it is one reason that the Integrity Commission should have the authority to examine the conduct of public officers, MPs, who are running as candidates during an election campaign.

Another lovely social media post just from this week connects directly to the $6.8 million that was gifted to the Tasmanian Hospitality Association after the 2018 state election campaign, and this is from Minister Howlett. It is a glorious picture, with Mr Speaker, Ms Courtney, Ms Petrusma, Mr Jaensch, Ms Ogilvie, the Premier, Jane Howlett, Mr Paul Jubb from the THA, and of course, sitting there in the middle like the cat that has just quaffed a bucket of cream, is Steve Old, who has one of these political parties in each of his back pockets.

There is actually no argument for not confirming that MPs who go into an election campaign as a sitting member should be subject to the scrutiny of the Integrity Commission. There is none at all. It is a massive loophole in the Integrity Commission Act which means that for the duration of an election campaign, ministers, MPs and candidates can conduct themselves with relative impunity, because they know that it has been confirmed by the Integrity Commission that there will be no investigation. We had no meaningful investigation into the 2018 campaign and we had a thwarted investigation into this year's election campaign, because the Integrity Commission, under the act as it currently stands, does not have jurisdiction.

I urge members not to look at this as a Greens bill. Think about this as an opportunity for parliament to tidy up the Integrity Commission Act so that we can hold our heads high during an election campaign and know, as we conduct ourselves with integrity, that we are still subject, should we not, to the reach of the Integrity Commission Act of 2009.

I strongly commend this legislation to the House. It will strengthen integrity, transparency and the public's perception of us as a collective. It is a matter of great regret to Dr Woodruff and I that when we have situations like the Brooks affair, or what has happened to the Labor Opposition today, we are all caught up in the muck, because often the community does not make a distinction between political parties. We are all just politicians. At a substantive level, we are detested because too rarely do we do the right thing as a collective.

I encourage members to make sure that the Integrity Commission Act is as robust as it needs to be so that the commission can do its work should it need to.