2018 investigation reports

Executive summary

On 30 June 2016, the Integrity Commission received a complaint from the then Leader of the Opposition, Bryan Green, outlining his concern about how conflicts of interest between the business interests and public duties of the then Minister for Mining, Adam Brooks MP, had been managed, and how the Premier, the Hon Will Hodgman MP, had responded to these issues.

The allegations

An assessment was undertaken to determine the nature of the allegations and whether they should be investigated by the Commission. The assessment identified the following allegations:

That the Premier:

1. Failed to properly manage Mr Brooks’ conflicts of interest; and
2. Facilitated a purposefully inadequate response to conflict of interest issues arising from Mr Brooks’ private company.

That Mr Brooks:

1. Had an ongoing involvement in the operation and management of his business interests whilst a Minister.
2. Did not advise the Premier of his involvement in the operation and management of his business interests whilst a Minister.
3. Deleted emails that may have been evidence of misconduct through his ongoing involvement in the operation and management of his business interests.
4. Took steps to hinder an audit by the Crown Solicitor of Tasmania of his email account.
5. Misused information acquired in connection with the performance of his Ministerial functions.

The Premier’s role

At the completion of the assessment, the Commission determined that the allegations relating to the Premier should be dismissed, given no evidence of misconduct involving the Premier was identified. Although it is reasonable to observe that the management of, and the response to, the issues relating to Mr Brooks did not progress as the Premier might have anticipated, there is no evidence that his response was improper or purposefully inadequate. Rather, he took advice from senior State Service executives to manage the conflict of interest issues.

The investigation process

The investigation involved obtaining and analysing relevant documents regarding the management of the conflict of interest issues and Mr Brooks’ involvement with his private company, Maintenance Systems Solutions (MSS).

Of particular importance were emails sent from and received by Mr Brooks’ MSS email account while he was Mining Minister. These emails were produced to the Commission by MSS under coercive notice.

Mr Brooks was interviewed by the Commission and also provided written evidence, in the form of a statutory declaration.

Managing Mr Brooks’ conflict of interests

The Ministerial Code of Conduct as it existed when Mr Brooks was a Minister did not define a ‘material conflict of interest’. However, published guidance notes to the Code stated that:

A material conflict of interest exists when a Minister in carrying out his or her official duties, is or reasonably appears to be, improperly influenced by private interests or when an official decision of the Minster could improperly advantage the Minister personally, or a close relative, especially, but not only, in a financial sense.

Applying that definition, the investigation found that Mr Brooks did not have a material conflict of interest relating to the business activities of MSS. He was not improperly influenced by his private interest in MSS, nor did any decisions which he made improperly advantage the business or him. He did, however, have conflict of interest issues to consider and deal with by virtue of his association with MSS.

The Premier took steps to facilitate Mr Brooks’ management of these issues upon Mr Brooks’ appointment as a Minister. The Premier required Mr Brooks to comply with the Protocol for Managing Possible Conflicts of Interest – Minister for Mining, Minister for Racing and Minister for Building and Construction (‘the Protocol’), developed with input from senior executives within the State Service.

Step 2 of the Protocol required Mr Brooks to immediately appoint an independent manager of relevant businesses, and an independent agent to deal with the manager on Mr Brooks’ behalf until such time as all Mr Brooks’ interests were divested. The Protocol stated that ‘this should ensure the Minister has no involvement, in any form, formal or otherwise, in the management and operation of any of these businesses’.

Mr Brooks undertook in writing to the Premier to abide by the Protocol and agreed to remove himself from management and operational decisions of MSS.

The investigation findings

The investigation has found that Mr Brooks continued to be involved in the operation and management of MSS while a Minister.

The actions taken by Mr Brooks to comply with the Protocol and his reporting on these to the Premier were influenced by his view that he had no material conflict of interest. As outlined above, the investigation confirmed that his involvement with MSS did not amount to a material conflict of interest as defined for the purposes of the Ministerial Code of Conduct.

However the investigation concluded that Mr Brooks gave inaccurate written assurances to the Premier about his compliance with the Protocol, and failed to advise the Premier of the true nature of his involvement with MSS, when the Premier was relying on Mr Brooks’ advice and updates.

Mr Brooks answered questions about his use of his MSS email account in State Parliament on 9 June 2016. The investigation identified that later that night, Mr Brooks accessed, collated, forwarded and then deleted a number of MSS emails. Mr Brooks did not inform anyone – other than his business manager – of his actions.

The investigation found that, in deleting the emails, Mr Brooks was motivated by genuine concerns about the protection of his family’s privacy, his ongoing marital proceedings and of private business information that could have been detrimental to the interests of MSS if publicly released.

However, the investigation also found that Mr Brooks was motivated by a concern that the MSS emails had the potential to cause him political damage.

The investigation found that in deleting the emails Mr Brooks intended to prevent detection of evidence that he had not removed himself from management and operational decisions of MSS when he was a Minister, as required by the Protocol agreed with the Premier.

Following the deletions, on 10 June 2016 Mr Brooks proposed an audit of his email account to the Premier knowing that he had deleted emails from that account. Mr Brooks did not advise the Premier, and the Premier was not aware, that he had deleted emails from that account.

The Premier subsequently appointed the Crown Solicitor to audit all MSS emails sent from and received by Mr Brooks when he was a Minister, to determine whether he was participating in decisions concerning the operations of MSS, and whether he was provided information in relation to MSS that was not otherwise in the public domain.

Mr Brooks did not advise the Crown Solicitor, and the Crown Solicitor was not aware, of the deleted emails. The Crown Solicitor’s audit has not been completed given that Mr Brooks has not provided the emails for the relevant period, due to his concerns about his marital proceedings and privacy.

The Commission concluded that even if Mr Brooks had been solely motivated by privacy concerns when deleting the emails, he should have advised the Premier of the deletions, both prior to and after the audit being formulated.

The Commission’s determination of the matter

The Board of the Commission determined to refer the matter to the Premier for his consideration and action. The Board has made no specific recommendations as to what action the Premier should take.

Related content: Media release

Executive summary

On 7 June 2017, the Integrity Commission received a complaint in a letter from the Hon Josh Willie MLC. On the same day Mr Willie announced in Parliament that he had made a ‘referral’ to the Commission about his concerns. Mr Willie clarified aspects of his complaint by using the Commission’s online complaint form on 19 June 2017.

In the complaint, Mr Willie alleged that a member of staff from the office of, at the time, the Minister for Human Services the Hon Jacquie Petrusma MP (the Minister) had directed the Commissioner for Children and Young People (the Commissioner) by email to cease putting sensitive information to the Minister in writing.

Mr Willie suggested that, if true, this might constitute an offence under s 23 of the Commissioner for Children and Young People Act 2016 (the CCYP Act). It may also have constituted a breach of the relevant employment conditions for the staff member.

This investigation was significant as it explored the nature of the relationship between a statutory officer and the relevant portfolio Minister and the Minister’s staff.

In relation to the original allegation, the Commission found that the staff member – the Minister’s Chief of Staff, Suzie Jacobson – did not request or direct the Commissioner to stop writing to the Minister. Further, the Commissioner was free to ignore any such request had it been made, and in fact he continued to write to the Minister. In any event, the Commission formed the view that the mere making of a request would not constitute an offence under the CCYP Act.

Three further allegations that emerged during the investigation related to the conduct of Ms Jacobson in meetings with the Commissioner. The Commission formed the view that the ‘Ministerial Staff Conduct’ conditions that form part of employment agreements for all Ministerial staff is a code of conduct for the purposes of the Integrity Commission Act 2009 (the IC Act). However, the Commission found that Ms Jacobson’s conduct, whilst robust, was not intended to be disrespectful in nature, notwithstanding that the Commissioner perceived it as such.

The Commission found that two contributing factors to the misunderstanding were communication problems between Ms Jacobson and the Commissioner and the possibility that Ms Jacobson did not fully appreciate the statutory independence of the Commissioner.

Four other allegations that emerged concerned two separate instances allegedly involving the Minister. Evidence given to the Commission during the course of the investigation raised the possibility that the Minister may have sought to enlist the Commissioner’s support in a partisan way.

The Commission found that in both instances the facts did not support a conclusion that the Minister so acted.

In one instance, it was apparent that the Minister’s actions arose from her genuine concerns about the impact of public discourse on out of home care children and young people, and although she was partially influenced by the political and media pressure at that time, the actions were not improper in the circumstances. In the other instance, it was found that the Minister did not make the alleged request.

The Commission took the view that the Ministerial Code of Conduct is a code of conduct for the purposes of the IC Act. However, the Commission noted that the Commissioner is not a public servant for the purposes of that code and therefore there was no apolitical role held by the Commissioner that the Minister was required to respect under the code.

The Commission, in light of all of the circumstances listed above, determined to dismiss the complaint.

Related content: Media release

Executive summary

This is a report of an own-motion investigation by the Integrity Commission (the Commission) into the policies, practices and procedures of Tasmania Police in relation to unauthorised access to, and misuse of, information by police officers.

As an own-motion investigation, it was not triggered by a complaint but by the Commission’s recognition, along with similar jurisdictions interstate, that significant advances in technology have increased the risk of information abuse within the public sector. The broad purpose of the investigation was to better understand how Tasmanian public sector organisations manage information and associated risks, enabling greater focus on good practice.

Tasmania Police was selected as the subject of the investigation because its work, to a greater degree than many other public sector organisations, relies on information. The abuse of information by public sector employees has the capacity to significantly erode public trust. It can also impact adversely on the work of an organisation, and in some situations may be a threat to safety. It is essential to police credibility that information is adequately protected from unauthorised access and use.

It is the also the job of police to investigate potentially criminal allegations against other public sector employees. In some respects, Tasmania Police is the gatekeeper for the appropriate management of serious information abuse by Tasmanian public sector employees more generally.

This report includes a review of options for penalising information abuse across Australia. The review indicates that in Tasmania, options for prosecuting serious information abuse by public sector employees are more limited than in other jurisdictions. The Commission has determined that it is a matter for the Parliament of Tasmania as to whether this should be changed. We have, however, made one specific recommendation for legislative review.

The report also describes good practice management of information by the public sector, and examines Tasmania Police policies, practices and procedures. It explains that organisations should have simple and clear policies and procedures, adequate information security measures, and should cultivate good organisational culture and awareness. Public sector organisations must also be prepared to enforce their policies and procedures, through either the disciplinary or legal system as appropriate.

This investigation has found that, overall, Tasmania Police policies, practices and procedures are adequate and appropriate. This is reliant on Tasmania Police maintaining its current focus on information management. Areas in which the organisation is to be particularly commended are the processes used in the ongoing audits of access to information, the newly drafted clause in the Tasmania Police Manual and the new conduct and complaints management system, ‘Abacus’.

While the investigation found that in most respects Tasmania Police meets good practice standards, we have made some specific suggestions for improvements. The most important suggestion is that the organisation should be more prepared to enforce its policies and procedures when investigating alleged information abuse.

Finally, it is important to note that while this investigation was thorough, independent and undertaken with the full cooperation of Tasmania Police, it was limited in two respects: we v did not survey all police officers and thus did not obtain a complete picture of police views on this issue; and we do not have direct and independent access to the Tasmania Police complaints database.

Related content: Media release

Foreword

In performing its functions under the Integrity Commission Act 2009 (the IC Act) the Commission is guided by a principal objective: to enhance public confidence that misconduct by public officers will be appropriately investigated and dealt with.

One way in which this objective is achieved is by the public reporting of the Commission’s investigations, in accordance with s 11(3) of the IC Act. This action is only undertaken when it is in the public interest to do so, giving due consideration to, among other things, the seriousness of the alleged misconduct and the impact such reporting has on affected parties who may be identified in the report.

The Commission has recently completed investigations relating to the ongoing political and governance dysfunction that affected Glenorchy City Council up until its recent election. The issues prevailing within the Council were unsurprisingly the subject of much public concern, and consequently the Commission’s Board considered it appropriate that the community be advised of the investigation findings.

This report concerns three separate investigations by the Commission in relation to alleged misconduct at the Council. It is divided into three parts, each relating to a separate investigation. The investigations involved matters connected to, but separate from, those considered as part of the recent Board of Inquiry process.

Part A – Investigation Pyramid

Investigation Pyramid is the most significant of the three investigations and Part A contains the full report. The investigation related to conflicts of interest and attempts to improperly gain pecuniary benefits, potentially up to a value of nearly $1 million.

The report makes 56 factual findings relating to matters arising from 2013–2016, which the Board of the Commission determined to refer to the Director of Local Government and to the newly re-elected Mayor, Alderman Kristie Johnston. In referring the matter to the Director, the Board recommended that he give consideration to whether or not offences had occurred under the Local Government Act 1993.

Part B – Investigation Direction

Investigation Direction resulted from a complaint about the Glenorchy City Council Board of Inquiry (BoI), where it was alleged that the BoI failed to investigate the Council ‘in a fair, honest and competent way’.

The investigation considered allegations that the BoI was biased, had ignored relevant evidence and consequently had made findings that were not supported by the evidence received. The investigation found no evidence to suggest that the BoI acted in the manner alleged.

A summary report of the investigation, briefly detailing the allegations and basis for dismissing the matter, is contained in Part B.

Part C – Investigation Junction

Investigation Junction related to the alleged unauthorised disclosure of the BoI’s draft report to media outlets in mid-2017. The Commission accepted this matter on the ii basis that it was alleged that the disclosure had been made for the purposes of prejudicing the BoI process.

The investigation found no evidence to suggest that disclosure of the draft report affected the BoI process. Furthermore, it noted strong arguments in favour of the public being made aware of such matters, particularly given the timeframes and expense involved in the inquiry.

Part C contains a summary report of the investigation, detailing why the Commission’s Board determined to dismiss the matter.

Related content: Media release

Introduction

This is a report prepared in accordance with the Integrity Commission’s (the Commission) function of monitoring the operation of the Parliamentary disclosure of interests register, pursuant to section 30(a) of the Integrity Commission Act 2009 (‘Integrity Commission Act’). The review period for this report is from 1 July 2016 to 30 June 2017.

The Parliamentary disclosure of interests register is in fact two registers (collectively, ‘the Register’),1 with one register being kept by the clerk of each House of Parliament in accordance with the Parliamentary (Disclosure of Interests) Act 1996 (‘Disclosure Act’).

The purpose of the Register is to provide a mechanism for Members of Parliament (‘Members’) to disclose interests that may affect, or may be perceived to affect, the objectivity of their decision making. Disclosure of interests is the first step in the management of such interests, and enhances the confidence of the Tasmanian public in the transparency of parliamentary processes. It is an important component of parliamentary integrity.

Our previous reports on the Register have been superficial, reviewing only whether Members were complying with form requirements. This report is more forensic in nature, and has verified some of the interests that have been disclosed.

Direct feedback has been given to each Member, via the relevant Clerk, about their compliance with Disclosure Act requirements.

Related content: Media release