Pecuniary interest
In the House of Representatives matters to do with the pecuniary interests of Members[69] are governed by precedent and practice established in accordance with sections 44 and 45 of the Constitution, standing orders 134 and 231 and by resolutions of the House.
Section 44(v) of the Constitution states that any person who has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons shall be incapable of being chosen or of sitting as a Senator or a Member of the House of Representatives (see page 137 for cases of Senator Webster and Mr Entsch).
Section 45(iii) provides that if a Senator or Member of the House of Representatives directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State, the place of the Senator or Member shall thereupon become vacant. There are no recorded cases of any substantive action taken under this section.
Standing order 134(a) states that a Member may not vote in a division on a question about a matter, other than public policy, in which he or she has a particular direct pecuniary interest. Public policy can be defined as government policy, not identifying any particular person individually and immediately.
A Member’s vote can only be challenged on the grounds of pecuniary interest by means of a substantive motion moved immediately following the completion of a division. If the motion is carried, the vote of the Member is disallowed.[70] On this matter May states:
A motion may be made, however, to object to a vote of a Member who has a direct pecuniary interest in a question. Such an interest must be immediate and personal. On 17 July 1811 the rule was explained thus by Mr Speaker Abbot: ‘This interest must be a direct pecuniary interest, and separately belonging to the persons whose votes were questioned, and not in common with the rest of his Majesty’s subjects, or on a matter of state policy’.[71]
It would seem highly unlikely that a Member would become subject to a disqualification of voting rights in the House of Representatives because the House is primarily concerned with matters of public or state interest. All legislation which comes before the House deals with matters of public policy and there is no provision in the standing orders for private bills.[72]
There have been a number of challenges in the House on the ground of pecuniary interest and in each case the motion was negatived or ruled out of order.
A case occurred in 1923 when the Speaker, on a motion to disallow a Member’s vote, delivered a lengthy statement in which he referred to a statement in May similar to the above-mentioned reference and certain cases in the State Parliaments. He drew attention to the distinction which had to be made between public and private bills and quoted the opinion of a Speaker of the Victorian Legislative Assembly that the practice was correctly stated that the rules governing a matter of pecuniary interest did not apply to questions of public policy, or to public questions at all.[73]
In 1924 the question was raised as to whether the votes of certain Members, who were interested shareholders in a company which was involved in the receipt of a large sum from the Government, should be allowed. The Speaker made it quite clear that it was not his decision to rule on the matter as the responsibility lay with the House, although he felt it his duty to point out, as he had on a previous occasion, the precedents and practice involved. The Speaker suggested that, if Members considered the matter sufficiently important, it might be debated as a matter of privilege following the moving of a substantive motion. No further action was taken.[74]
In 1934 the Speaker was asked to rule whether certain Members were in order in recording a vote if they were directly interested as participants in the distribution of the money raised by means of the legislation. The Speaker stated that he could not have a knowledge of the private business of Members and therefore was not in a position to know whether certain Members had, or did not have, a pecuniary interest in the bill. He referred to the relevant standing order and advised that the words ‘not held in common with the rest of the subjects of the Crown’ really decided the issue. The matter was not further pursued.[75]
In 1948 the Chair in ruling on a point of order stated that ‘the honourable Members referred to are interested financially in the ownership of certain commercial broadcasting stations, but only jointly and severally with other people. Therefore, they are entitled to vote on the measure now before the House’.[76] A similar case was recorded in 1951 when the Speaker ruled that a Member who was financially interested in a bill, other than as a shareholder in a company under discussion, should declare himself. The Speaker concluded his remarks by saying that it was not his duty to make an inquiry.[77]
In 1957 [78] and 1958, [79] when the House was dealing with banking legislation, the Chair ruled out of order any challenge to a Member’s vote, the ground of the ruling being that the vote was cast on a matter of public policy. This distinction was recognised in 2006 in response to a point of order before the House voted on a bill to provide for the sale of a health insurance fund.[80]
In 1998 a Member concluded that he should not vote on a bill containing, inter alia, an amendment to the Parliamentary Contributory Superannuation Act which he understood dealt with an anomaly in respect of his own superannuation entitlements.[81] Even in this case it could be argued that the issue was one of public policy and that the amendments in question would have effect in respect of others in similar circumstances (the Member was not identified personally and immediately).
In 1984 the House resolved, inter alia, that Members must declare any relevant interest at the beginning of a speech (in the House, in the then committee of the whole or in a committee), and if proposing to vote in a division. It was not necessary to declare an interest when directing a question. In 1988 the requirement was abolished, following a report from the Committee of Members’ Interests which expressed doubt that the requirement served any useful purpose.[82] Members of course are still free to make such a declaration, and from time to time do so.[83]
In the UK House of Commons declarations of relevant interests are required in debate and other proceedings, and when giving notice, including notice of questions. However, it is recognised that during certain proceedings, such as oral questions, declaration may not be practicable.[84]
For summaries of the recommendations of the Joint Committee on Pecuniary Interests of Members of Parliament (1974–5),[85] and the (government) Committee on Public Duty and Private Interest (1978–9)[86] see earlier editions.[87]
Personal interest in committee inquiry
Standing order 231 states that no Member may sit on a committee if he or she has a particular direct pecuniary interest in a matter under inquiry by the committee. No instances have occurred in the House of a Member not sitting on a committee for the reason that he or she was pecuniarily interested. The requirements for oral declaration introduced by the resolution mentioned above, in force from 1984 to 1988, also referred to committee proceedings. Members have been advised to declare at committee meetings any matters, whether of pecuniary or other interest, where there may be, or may be perceived to be, a possible conflict of interest. (For further discussion see ‘Pecuniary and personal interest’ in Chapter on ‘Parliamentary committees’.)
Professional advocacy
The matter of professional advocacy first arose in the House of Representatives in 1950 in relation to the appearance of a Member, Dr Evatt, before the High Court on behalf of certain clients.[88] In 1951 the Speaker responded to a request as to the interpretation of a resolution of the UK House of Commons in 1858 which sought to prevent Members from promoting or advocating in the House matters which they had been concerned with as advocates—for example, in court proceedings.[89] The Speaker ruled that the resolution was binding on all Members, excepting the Attorney-General when appearing in court on behalf of the Commonwealth.[90] In the same year the Speaker also ruled that Dr Evatt could not speak or vote in the House on a certain bill as he had appeared in court on a case dealing with the matter. Dr Evatt maintained that the ruling was based on a misconception, the rule having applied to Members of the House of Commons who may have been engaged as professional advocates to promote bills and endeavour to have them accepted by the House. He also assured the Chair that he had received no retainer nor given any undertaking to act in any way on anybody’s behalf in connection with his duties as a Member. Standing orders were suspended to enable him to speak and his vote was not challenged on any division on the bill.[91]
The matter arose again in 1954 at the time when a notice of motion in the name of Dr Evatt to print a royal commission report was to be called on (the then method of initiating debate on a report). The Speaker expressed the view that a Member, having spoken and voted on a measure before the House, was precluded from taking part in any court action arising therefrom and that Dr Evatt had had no right therefore to appear before that royal commission as a counsel. It was his further view that, having so appeared, Dr Evatt should not discuss in the House any reports or matter that arose out of the proceedings at the time he was there as a barrister. Standing orders were then suspended to enable Dr Evatt to proceed with his motion, and he also voted in associated divisions.[92]
Two points would appear to emerge from these cases:
- the suspensions of standing orders were in relation to then standing order 1 (since omitted) which enabled the House, when its own standing orders and practice did not cover the situation, to resort to the practice of the House of Commons, and
- the House, by agreeing to the suspensions of standing orders and by permitting Dr Evatt to vote without challenge, had a different view from the Speaker concerning the matter.
Lobbying for reward or consideration
In 1995 the UK House of Commons strengthened an earlier resolution referring to lobbying for reward or consideration, providing:
‘…that in particular, no Members of the House shall, in consideration of any remuneration, fee, payment, reward or benefit in kind, direct or indirect, which the Member or any member of his or her family has received, is receiving, or expects to receive, advocate or initiate any cause or matter on behalf of any outside body or individual; or urge any Member of either House of Parliament, including Ministers, to do so, by means of any speech, Question, Motion, introduction of a Bill, or amendment to a Motion or Bill.[93]
Such action in the Australian Parliament could result in the disqualification of the Member or Senator concerned, his or her seat becoming vacant pursuant to section 45(iii) of the Constitution (see page 142). Contempt of the House and offences against the Criminal Code could also be involved—see Chapter on ‘Parliamentary Privilege’.
Registration—Committee of Privileges and Members’ Interests
Standing order 216 provides for a Committee of Privileges and Members’ Interests[94] to be appointed at the commencement of each Parliament. In relation to Members’ interests the committee is required:
- to inquire into and report upon the arrangements made for the compilation, maintenance and accessibility of a Register of Members’ Interests;
- to consider proposals made by Members and others on the form and content of the register;
- to consider specific complaints about registering or declaring interests;
- to consider possible changes to any code of conduct adopted by the House; and
- to consider whether specified persons (other than Members) ought to be required to register and declare their interests.
The committee is required to prepare and present a report on its operations in connection with the registration and declaration of Members’ interests as soon as practicable after 31 December each year, and it also has power to report when it sees fit.
The substantive requirements insofar as Members are concerned were established by resolution of the House.[95] The principal provisions are:
- Within 28 days of making an oath or affirmation, each Member is required to provide to the Registrar of Members’ Interests a statement of the Member’s registrable interests and the registrable interests of which the Member is aware of the Member’s spouse and any children wholly or mainly dependent on the Member for support, in accordance with resolutions adopted by the House and in a form determined by the Committee of Privileges and Members’ Interests from time to time. The statement is to include:
- in the case of new Members, interests held at the date of the Member’s election;
- in the case of re-elected Members of the immediately preceding Parliament, interests held at the date of dissolution of that Parliament;
- and changes in interests between these dates and the date of the statement.
- Members are required to notify any alterations to those interests to the Registrar within 28 days of the alteration occurring.
- The registrable interests include:
- shareholdings in public and private companies;
- family and business trusts and nominee companies, subject to certain conditions;
- real estate, including the location and the purpose for which it is owned;
- registered directorships of companies;
- partnerships, including the nature of the interests and the activities of the partnerships;
- liabilities, indicating the nature of the liability and the creditor concerned;
- the nature of any bonds, debentures and like investments;
- savings or investment accounts, indicating their nature and the name of the bank or other institution concerned;
- the nature of any other assets, excluding household and personal effects, each valued at over $7500;
- the nature of any other substantial sources of income;
- gifts valued at more than $750 from official sources or more than $300 from other sources, provided that a gift from family members or personal friends in a purely personal capacity need not be registered unless the Member judges that an appearance of conflict of interest may be seen to exist;
- any sponsored travel or hospitality received where the value of the sponsored travel or hospitality exceeds $300;
- membership of any organisation where a conflict of interest with a Member’s public duty could foreseeably arise or be seen to arise; and
- any other interests where a conflict of interest with a Member’s public duties could foreseeably arise or be seen to arise.
- At the commencement of each Parliament and at other times as necessary, the Speaker is required to appoint an employee of the Department of the House of Representatives as the Registrar of Members’ Interests.[96] That person also assists the Committee of Privileges and Members’ Interests in relation to matters concerning Members’ interests.
- The Registrar, in accordance with procedures adopted by the Committee of Privileges and Members’ Interests, is required to maintain a Register of Members’ Interests in a form determined by the committee.
- As soon as possible after the commencement of each Parliament, the Chair of the Committee of Privileges and Members’ Interests is required to present a copy of the completed register, and to also present as required notifications by Members of alterations of interests.[97]
- The Register of Members’ Interests is required to be available for inspection by any person under conditions laid down by the committee.[98] [Since the start of the 43rd Parliament in 2010 the Register has been published on the Parliament House website.]
Explanatory notes authorised by the Committee of Privileges and Members’ Interests provide guidance on the interpretation of the requirements. The Speaker has no responsibility in relation to the requirements other than the responsibility to appoint an employee of the Department of the House as the Registrar.[99]
On 13 February 1986 the House resolved that any Member who:
- knowingly fails to provide a statement of registrable interests to the Registrar of Members’ Interests by the due date;
- knowingly fails to notify any alteration of those interests to the Registrar of Members’ Interests within 28 days of the change occurring; or
- knowingly provides false or misleading information to the Registrar of Members’ Interests—
‘shall be guilty of a serious contempt of the House of Representatives and shall be dealt with by the House accordingly’.
Proposed code of conduct
In June 1995 the Speaker presented for discussion the draft proposals of a working group of Members and Senators on a code of conduct for Members of Parliament entitled Framework of ethical principles for Members and Senators.[100] The principles listed were intended to provide a framework of reference for Members and Senators in the discharge of their responsibilities, and outlined the minimum standards of behaviour which the group felt the Australian people had a right to expect of their elected representatives.
In 2008, in a report concerning an exchange between two Members, the Committee of Privileges and Members’ Interests indicated that it proposed to review the issue of a Code of Conduct.[101] The Speaker later said that he would refer a matter concerning actions by a Member outside the House to the committee as an example of an incident of concern.[102]
On 23 November 2010, the House of Representatives referred the development of a draft Code of Conduct for Members of Parliament to the Committee of Privileges and Members’ Interests. The Committee was to consult with the equivalent committee in the Senate with the aim of developing a uniform code and uniform processes for its implementation for Members and Senators.[103] The committee presented its work on the inquiry as a discussion paper in November 2011,[104] including the following draft code of conduct:
Draft Code of Conduct for Members of the House of Representatives
The purpose of the code is to provide a framework of reference for Members in the discharge of their responsibilities. It outlines the standards of behaviour which the Australian people can expect of their elected representatives. It refers to the key ethical principles which should guide the consideration of Members.
It is by adherence to these standards that Members can maintain and strengthen the public’s trust and confidence in the integrity of the parliamentary institution and not undertake any action which would bring the House of Representatives, or its Members generally, into disrepute.
- The Code applies to Members in all aspects of their public life. It does not seek to regulate what Members do in their purely private and personal lives.
- The Code complements the obligations on Members to abide by the standing orders and the rulings of the Chair.
- Members who are Ministers have other obligations relating to the Ministerial Code of Conduct.
- Members who hold a Parliamentary Office must have particular regard for the proper exercise of influence and use of information gained from their duties as office holders. They must also be accountable for their administrative actions and for their conduct related to these duties.
1. Loyalty to the Nation and Regard for its Laws
Members must be loyal to Australia and its people. They must uphold the laws of Australia and ensure that their conduct does not breach or evade those laws.
Members must exercise due diligence in performing their official duties to the best of their ability. They must apply public resources, including the use of their entitlements, economically and only for the purposes for which they are intended.
3. Respect for the Dignity and Privacy of Others
Members must have due regard for the rights and obligations of all Australians. They must respect the privacy of others and safeguard information obtained in confidence in the course of their duties. They must avoid unjustifiable or illegal discrimination against others and exercise responsibly their rights and privileges as Members.
Members must at all times act honestly, strive to maintain the public trust placed in them, and advance the common good of the people of Australia.
5. Primacy of the Public Interest
Members must base their conduct on a consideration of the public interest, avoid conflict between personal interests and the requirements of public duty, and resolve any conflict, real or apparent, quickly and in favour of the public interest.
Members must exercise the influence gained from their public office only to advance the public interest. They must not obtain improperly any property or benefit, whether for themselves or another. They also must not seek to affect improperly any process undertaken by officials or members of the public.
Members must ensure that their personal conduct is consistent with the dignity of the Parliament. They should act at all times in a manner which will tend to maintain and strengthen the public’s trust and confidence in the integrity of the Parliament and its Members.
Registration of interests
Members shall meet the requirements of the House in respect of the registration of their interests in the Register of Members’ Interests. Members also should draw attention to any relevant interests relating to votes of the House (SO 134) or the inquiries of committees (SO 271).
Duties in relation to the Parliamentary Integrity Commissioner
The application of this Code will be a matter for the House of Representatives, the Committee of Privileges, Ethics and Members’ Interests and the Parliamentary Integrity Commissioner in accordance with the relevant standing orders and resolutions of the House.
Members shall cooperate at all stages with any investigation into their conduct by, or under the authority of, the House.
In individually considering these principles, Members should also have regard to:
- sections 44 and 45 of the Constitution;
- provisions of the Parliamentary Entitlements Act 1990;
- standing and sessional orders and resolutions of the House of Representatives.