Parliamentary Remuneration


Current Issues

Codes of conduct in Australian and some overseas parliaments

E-Brief: Online Only issued 1 December 2003

Deirdre McKeown, Information/E-links
Politics and Public Administration

Introduction

The conduct of ministers and members of parliament is often in the news. The need for parliamentary codes of conduct, particularly ministerial codes, is raised when the public duty and private interests of parliamentarians conflict.

The development of parliamentary codes of conduct has varied in Australian federal, state and territory parliaments. In some states codes have been developed as the result of inquiries, for example in NSW (Independent Commission Against Corruption and the Greiner/Metherell affair) and in Queensland (Electoral and Administrative Review Commission).

In Australia some parliaments have adopted codes of conduct for members while others have a code governing ministerial behaviour. Only three parliaments (New South Wales, Victoria and Western Australia) have codes relating to both ministers and members. All Australian parliaments have adopted registers of pecuniary interests.

This e-brief summarises the approach taken in Commonwealth, state and territory and some overseas parliaments to codes of conduct for ministers and members of parliament and to registers of interests and the post-separation employment of ministers. Where possible it provides links to relevant documents. It does not compare codes of conduct. For background information on the feasibility, options and importance of a code of conduct for parliamentarians see A Code of Conduct for Parliamentarians?, Department of the Parliamentary Library, Research Paper No. 2, 1998 99, by Dr Andrew Brien. Information on the regulation of the post-separation employment of ministers is contained in Post-separation Employment of Ministers, Department of the Parliamentary Library, Research Note No. 40, 2001 02 by Dr Ian Holland.

Commonwealth parliament

Ministerial code

At present the Commonwealth has a ministerial guide to conduct titled A Guide on Key Elements of Ministerial Responsibility but no code of conduct for parliamentarians. While the Hon. John Howard is the first Australian Prime Minister to establish a public ministerial code, academic John Uhr has noted that:

given that the document is not a law or regulation and that it does not even have any formal parliamentary authorisation, there is nothing to stop the Prime Minister as author of the document from using his authority to alter or amend it or to interpret it as he sees fit. (John Uhr, 'Howard's ministerial code', Res Publica, Vol. 7, No. 1, 1998.)

This highlights how ministerial codes in Westminster-type systems are generally controlled by the executive itself rather than the parliament.
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Members and senators code of conduct

Discussion of the introduction of a code of conduct covering senators and members has continued for at least the last two decades.

A code of conduct for parliamentarians was raised in the Joint Committee on Pecuniary Interests of Members of Parliament Report on Declaration of Interests tabled in both houses on 30 September 1975. The committee noted that the drafting of a code of conduct was beyond its terms of reference but recommended that a proposed Joint Standing Committee:

be entrusted with the task of drafting a code of conduct based on Standing Orders, conventions, practices and rulings of the Presiding Officers of the Australian and United Kingdom Parliaments and such other guidelines as may be considered appropriate.

A committee of inquiry chaired by the Chief Justice of the Federal Court the Hon. Sir Nigel Bowen was established by Prime Minister Malcolm Fraser on 15 February 1978 to report on public duty and private interest. The committee, known as the Bowen Committee, reported in July 1979 and recommended that a code of conduct be adopted for general application to all officeholders who were defined as Ministers, members of parliament, public servants and statutory office holders. A draft code was included in the report. The committee recommended in relation to members of parliament that:

The Senate and House of Representatives be invited to consider:

(a) amending their Standing Orders to include new Standing Orders requiring, respectively, Senators and Members of the House of Representatives to conform to the Code of Conduct; or
(b) passing a resolution adopting the Code of Conduct; and


(c) providing that a subsequent breach of the Code of Conduct should constitute misconduct and a breach of the privileges of Parliament.

An all-party working group of parliamentarians was established in 1992 to consider a code of conduct but the group's deliberations were interrupted by the 1993 election. The group was reconvened in March 1994 and produced a draft code of conduct for senators and members. The group was not a formally constituted committee of the parliament.

On 21 June 1995 'A Framework of ethical principles for members and senators' was tabled in the Senate and the House of Representatives. An additional framework covering ministers and presiding officers titled 'A Framework of ethical principals for ministers and presiding officers' was also tabled. The then Speaker, the Hon. Stephen Martin, noted that the draft code for senators and members reflected the majority view of the working group that the code should be 'an aspirational set of principles or values, within which each member must make appropriate decisions concerning his or her own behaviour'. The working group did not recommend that the code be supported by an ethics committee or ethics commissioner. To date a code of conduct has not been adopted by the Senate or the House of Representatives.

Although there is no code of conduct, the conduct of members within parliament is guided by the Standing Orders, while corruption and bribery of members of parliament is prohibited under the Commonwealth Criminal Code. The Parliamentary Privileges Act 1987 prohibits other forms of interference with members of parliament.
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Register of Pecuniary Interests

Members of the Senate and the House of Representatives are required to report on their interests within 28 days of making the oath or affirmation as a member or senator. These registers were adopted by resolution of the House of Representatives on 8 October 1984 and the Senate on 17 March 1994. The senate resolution also applies to senior officers of the Department of the Senate. Failure to comply with the requirements of the registers results in a contempt of the Parliament.

On 15 September 2003 the Senate agreed to amendments to the resolutions relating to senators' interests and declaration of gifts to the Senate and the Parliament. The amendments increase the value of gifts and assets that must be declared and remove the requirement that senators declare a conflict of interest or financial interest in an issue before voting in the Senate. The House of Representatives agreed to similar amendments relating to gifts and assets on 6 November 2003.

New South Wales

In 1988 the Greiner Government introduced the 'Code of Conduct for Ministers of the Crown' which included a section on the post-separation employment of ministers. In October 1992 the Independent Commission Against Corruption (ICAC) produced a discussion paper on the Metherell resignation and appointment titled Recruitment of former Members of Parliament to the Public Service and related issues. This paper provides some details on the ministerial code. In April 1997 ICAC produced a report titled Managing post separation employment which noted that the current ministerial code did not include post-separation employment. In 1998 an ICAC report on Parliamentary and electorate travel (second report) recommended that ' as a priority a new Ministerial Code of Conduct should be implemented.' On 10 October 2000, in answer to a question without notice dated 31 August 2000 on the development of a new code of conduct the Treasurer, the Hon. Michael Eagan, stated 'The Government has an existing Ministerial Code of Conduct. The Government will keep this code under review, including examination of developments in other jurisdictions'.

The 'Code of Conduct, Members of Parliament, New South Wales' was proposed by the Premier the Hon. Bob Carr on 31 March 1998 as a way of solving the disagreement between the Legislative Assembly and the Legislative Council over the code. The 'Premier's Code' as it was known was adopted by resolution of the Legislative Assembly on 5 May 1998 and by resolution of the Legislative Council on 26 May 1999. The Code covers six areas: conflict of interest, bribery, gifts, use of public resources, use of confidential information, and duties as a member of parliament.
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Independent Commission Against Corruption Act 1988

The members' code of conduct was adopted in response to section 9 (1) of the Independent Commission Against Corruption Act 1988 which states:

that conduct does not amount to corrupt conduct unless it could constitute or involve in the case of conduct of a Minister of the Crown or a member of a House of Parliament a substantial breach of an applicable code of conduct.

Should the ICAC find that a member of parliament has substantially breached the code of conduct the finding is reported to the member's House which decides on the disciplinary action it should take.

The NSW Parliament fact sheet on accountability claims that the link between the breach of a code of conduct and corrupt behaviour is unique amongst legislatures and that this link gives the code 'teeth' that many other codes lack.

The ICAC Act also established standing ethics committees for each House of the NSW Parliament. The committees are required to review the code of conduct at least once in each two-year period.

ICAC recently reviewed the code of conduct in relation to secondary employment for members of the Legislative Assembly. ICAC's report titled Regulation of secondary employment for Members of the NSW Legislative Assembly was released in September 2003. The report recommended amendments to the code of conduct including a prohibition on paid advocacy and a much stricter regime of disclosure for members engaged in secondary employment.

Disclosure of Pecuniary Interests

The requirement that members disclose their pecuniary interests was introduced in the Constitution (Disclosures by Members) Amendment Act 1981. This was achieved through the introduction of Section 14A into the Constitution Act 1902.

The recent ICAC report recommended that MPs be required to update the register within 30 days of a change of interest or the addition of a new interest and that the register should be publicly available on the internet.
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The Parliamentary Ethics Adviser

In September 1998 the Legislative Assembly and Legislative Council resolved to appoint a parliamentary ethics adviser. The Premier described the role of the ethics adviser as providing independent assistance and advice 'to members of Parliament in resolving ethical issues and problems'.

The President of the Legislative Council, the Hon. Dr Meredith Burgmann, has canvassed the models considered for the Parliamentary Ethics Adviser in her paper Constructing legislative codes of conduct. Dr Burgmann supports the appointment of an external ethics adviser 'with a capacity to receive public complaints, to investigate and then to sanction or enforce discipline against ethics breaches'. But she also recognises that problems arise when an adviser is required to fulfil the dual roles of advice and investigation.

Victoria

Victoria's Code of Conduct is included in the Members of Parliament (Register of Interests) Act 1978 (Victoria). This legislation also contains clauses referring to a register of interests. The code states that members of the Victorian Parliament are bound to observe a range of standards (paras (a) (f)) which cover confidential information, receipt of financial benefits, avoidance of conflict of interest, ad hoc disclosure and obligation as ministers. Under the Register of Interest provisions members are required to provide information on: income source, company positions and financial interests, political party membership, trusts, land, travel contributions, gifts, and other substantial interests. Infringement of the code constitutes contempt for which the member may be fined up to $2000 by his or her House. The non-payment of this fine renders the member's seat vacant.

Queensland

The office of Queensland Integrity Commissioner was created by the 1999 amendment to the Public Sector Ethics Act 1994. The Commissioner's role is to advise the Premier, ministers, parliamentary secretaries, their staff, government backbenchers, statutory office holders, chief executive officers and senior officers of the public service. This can relate to conflicts of interest pertaining to persons under their administration or their own situation. According to the Commissioner's First Annual Report to the Premier in June 2001, the Commissioner's purpose 'is to help Ministers and others to avoid conflicts of interest, and in so doing to encourage confidence in public institutions'.

On 5 September 2000 the Members' Ethics and Parliamentary Privileges Committee tabled the Report on a Code of Ethical Standards for members of the Queensland Legislative Assembly and its proposed Code of Ethical Standards. The Government's response was provided on 5 December 2000.

Queensland's Code of Ethical Standards Legislative Assembly of Queensland comprises the Statement of Fundamental Principles (adopted by the Assembly on 17 May 2001), Procedures for Raising and Considering Matters of Privilege or Contempt and the Definition of Contempt (adopted by the Assembly on 8 August 2001) and other requirements derived from legislation, Standing Orders, resolutions of the House, and practice and procedure. The disclosure of interests was adopted by resolution by the Legislative Assembly on 25 May 1999, effective from 1 July 1999. The Members' Interests Resolution is included in the Code of Ethical Standards.

Western Australia

One the Hon. Dr Geoff Gallop's first acts as Premier was to introduce a Ministerial Code of Conduct. This code also contains a section on post-separation employment of ministers.

The Premier tabled a Draft code of conduct for Members of the Western Australian Legislative Assembly on 14 March 2002. The code was considered by the Procedure and Privileges Committee which presented its report on 27 February 2003. Following an often bitter personal debate an amended code was adopted by the Legislative Assembly on 28 August 2003. The code does not include specific penalties for breaching the code.

Under the provisions of the Members of Parliament (Financial Interests) Act 1992 all members are required to declare their pecuniary interests. Section 4 states that 'a Member of either House who wilfully contravenes or fails to comply with section 4 (1) is guilty of a contempt of the House of which he is a Member, and that House may deal with him accordingly'.

South Australia

On 16 May 2002 the Premier the Hon. Mike Rann announced the introduction of a Code of Conduct for Ministers. The code came into effect on 1 July 2002 and contains a statement on post-separation employment of ministers at Section 7.

On 20 February 2003 the Premier moved that a joint committee of the parliament be established to introduce a code of conduct for all members of parliament. On 14 July 2003 the House of Assembly passed an amended motion which included the removal of the committee's reporting deadline of 1 October 2003.

Members are required to declare their interests under the provisions of the Members of Parliament (Register of Interests) Act 1983. Section 7 states that failure to comply with the Act will result in 'a penalty not exceeding five thousand dollars'.

Tasmania

The 'Code of Ethical Conduct for Members of the House of Assembly' and 'A Code of Race Ethics for Members of the House of Assembly' are located in the House of Assembly Standing Orders and Rules (Part 2). This code was adopted in 1996 and has a brief preamble, a statement of commitment and a list of nine general declarations about a range of issues. There is also a statement on post-separation employment which states that members 'when leaving public office and when they have left public office, must not take improper advantage of their former office'.

Members are required to report on their interests under the provisions of the Parliamentary (Disclosure of Interests) Act 1996. Failure to comply with the provisions of the Act may result in a member being in contempt of Parliament.

Australian Capital Territory

A Code of Conduct Governing Ministers was tabled by the then Chief Minister the Hon. Kate Carnell on 2 May 1995. In her tabling speech Ms Carnell noted that the code 'is applicable to the immediate families or close relatives of Ministers and ministerial staff employed under the Legislative Assembly (Members' Staff) Act of 1989'. A revised ministerial code was tabled on 26 August 1998. The code is currently under review.

There is no code of conduct for members. The Standing Committee on Administration and Procedure has tabled two reports on the issue and recommended that a code be adopted. The committee is currently enquiring into the appropriateness of a code of conduct for members and their staff.

Members are required to report on their interests in accordance with a Resolution dated 7 April 1992 titled 'Declaration of Private Interests of Members' (amended 27 August 1998).

Northern Territory

On 20 June 2002 the Chief Minister, the Hon. Clare Martin moved that the draft Code of Conduct and Ethical standards and draft amendments to the Legislative Assembly (Register of Members' Interests) Act 1982 be referred to the Standing Orders Committee for inquiry and report during the October sittings 2002. In June 2003 the Committee's reporting date was extended to February 2004. Currently members are required to report on their interests under the provisions of the Legislative Assembly (Register of Members' Interests) Act 1982.
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Selected Overseas Codes of Conduct

United Kingdom

Ministerial conduct is governed by A Code of Conduct and Guidance on Procedures for Ministers. This code (chapter nine, paragraph 140) also outlines arrangements governing post-separation employment. Ministers must also comply at all times with the requirements which Parliament has laid down. For Minister in the House of Commons these are outlined in the Resolution carried on 19 March 1997 and for Ministers in the House of Lords in the Resolution carried on 20 March 1997.

The first report of the Committee on Standards in Public Life (the Nolan Committee) recommended that the House of Commons introduce a new code of conduct for members; an improved Register of Members' Interests; an independent Parliamentary Commissioner for Standards; and a strengthened Committee on Standards and Privileges.

The Code of Conduct together with the Guide to the Rules Relating to the Conduct of Members was adopted by the House of Commons on 24 July 1996. It includes the seven general principles of conduct underpinning public life which were advocated by the Nolan Committee: selflessness, integrity, objectivity, accountability, openness, honesty and leadership.

The seventh report of the Committee on Standards in Public Life (the Neill Committee) recommended that the House of Lords adopt a code of conduct. The House of Lords code of conduct came into effect on 31 March 2002.

Under a Resolution agreed by the House on 22nd May 1974, and under the Code of Conduct, Members are required to register their pecuniary interests in a Register of Members' Interests. The duty of compiling the Register rests with the Parliamentary Commissioner for Standards whose functions are set out in a Standing Order of the House and include those formerly exercised by the Registrar of Members' Interests. The latest annual report of the Parliamentary Commissioner for Standards outlines the history of the position and its current role.

Scotland

The Scottish Ministerial Code sets out a code of conduct and guidance on procedures for Members of the Scottish Executive and Junior Scottish Ministers. Section 9.24 contains a statement on the post-separation employment of ministers.

The Code of Conduct for Members of the Scottish Parliament was agreed by resolution of the Parliament on 24 February 2000 and came into force immediately. On 27 June 2002, the Parliament passed the Scottish Parliamentary Standards Commissioner Act, establishing an independent Commissioner to deal with complaints against Members. Details of the complaints procedure are outlined in Section 10 of the Code of Conduct.

Members of the Scottish Parliament are required to report on their interests under the provisions of The Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999. A Register of Members Staff Interests has also been established. The Register covers staff employed under the Members Allowances Scheme, as agreed by the Parliament on 16 March 2000, to assist the member in carrying out his or her parliamentary duties.

Wales

An amended Ministerial Code: a code of conduct and guidance on procedures for ministers was approved by the National Assembly for Wales on 4 December 2001. Chapter 10 deals with ministers' private interests including the acceptance of appointments after leaving ministerial office.

The Assembly also has a Code of Standards for Members. The Committee on Standards of Conduct considers complaints referred to it by the Presiding Officer and any matters of principle relating to the conduct of Assembly Members generally and oversees the Register of Members' Interests. An Independent Adviser on Standards of Conduct is appointed by the Assembly as a whole and is therefore accountable ultimately to the Assembly as a whole. The Independent Adviser's role is to provide advice and assistance to the Assembly and the Presiding Officer on matters relating to the conduct of members.

Northern Ireland

Northern Ireland has a Ministerial Code (not available in electronic format) which was adopted by the Executive on 9 February 2000. The code was under review when the process of devolution was suspended in October 2002. The current code contains a section on the post-separation employment of ministers.

On 14 December 1999 (amended 15 October 2001) the Northern Ireland Assembly approved the Code of Conduct together with the Guide to the Rules relating to the Conduct of Members. This document also contains rules governing the registration and declaration of Members Interests, as well as offering guidance on their practical application.

Republic of Ireland

The Cabinet Handbook provides guidance to ministers on code of conduct.

The relevant acts governing conduct of members of the Irish Parliament (the Oireachtas) are the Standards in Public Office Act 2001 and the Ethics in Public Office Act 1995. This legislation has created the Standards in Public Office Commission and a Committee on Members' Interests for the D il (House of Representatives) and a Committee on Members' Interests for the Seanad (Senate). These Committees are required to draw up codes of conduct which would be adopted by resolution of the relevant house. The D il code was adopted on 28 February 2002. In July 2003 the Standards in Public Office Commission published a Code of conduct for office holders. Members of the Oireachtas are required to declare their interests in accordance with the provisions of the Ethics in Public Office Act.

Canada

A Guide for Ministers and Secretaries of State sets out the duties and responsibilities of the Prime Minister, Ministers including Ministers of State, and Secretaries of State.

The Office of the Ethics Counsellor was created in June 1994 and has responsibility for the Conflict of Interest and Post-Employment Code for Public Office Holders, the Lobbyists Registration Act, and the Lobbyists' Code of Conduct. The Office regularly provides advice on ethical issues to federal and provincial departments and agencies, foreign governments as well as private sector organizations.

Public Office holders are required to report on their interests according to the terms of the Conflict of Interest and Post-Separation Employment Code for Public Office Holders. This code also governs the post-separation employment of ministers.

United States

Under the US Constitution, (Article 1, Section 5) the Senate and the House of Representatives are responsible for establishing rules to govern the conduct of their members, as well as judging members alleged to have violated those rules. The Senate Select Committee on Ethics publishes a summary of the Code of Official Conduct (Senate Rules 34 43) and the Senate Ethics Manual.

The House of Representatives Committee on Standards of Official Conduct has jurisdiction over the rules and statutes governing the conduct of Members while performing their official duties. The Code of Official Conduct (Rule XX111) is found in the House of Representative Rules.

The Ethics in Government Act 1978 requires members, officers, and certain employees of the US Congress and related offices to file annual Financial Disclosure Statements.

The post-separation employment of heads of executive agencies (appointed by the President) and other government employees is governed by Title 18 Section 207 of the US Code. The Office of Government Ethics provides advice on compliance with this code.

New Zealand

Information on the Public duty and private interests of ministers and parliamentary under-secretaries is contained in the Cabinet Manual. All Ministers and Parliamentary Under-Secretaries are also required to lodge an annual declaration of assets and interests with the Registrar of Ministers' Interests.

The Members of Parliament (Pecuniary Interests) Bill was introduced into Parliament on 7 October 2003 and read a first time on 16 October 2003. The Parliament voted to refer the bill to the Standing Orders Committee The main purpose of the Bill is to require Members of Parliament to disclose their pecuniary interests. See the Bills Digest prepared by the New Zealand Parliamentary Library for more details.

Following and Auditor-General's report into the financing of organisations associated with MP Donna Awatere Huata the Prime Minister, the Rt Hon. Helen Clark, has stated that a code of conduct for Members of Parliament should be introduced. The Prime Minister has suggested that such a code could be included in the Pecuniary Interests Bill.
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Summary of codes of conduct in Australian and selected overseas countries

Australia

 

Federal

NSW

Vic

Qld

Tas

SA

WA

ACT

NT

Ministerial Code

   

 

Members' code

 

 

   

Post separation employment

       

 

Register of interests

Ethics/standards mechanism providing advice or conducting investigations

 

 

         

Overseas countries

 

UK

Scotland

Wales

Nthern Ireland

Republic of Ireland

Canada

New Zealand

USA

Ministerial Code

 

Members' code

   

Post separation employment

 

 

Register of interests

Ethics/standards
mechanism providing advice or conducting investigations

 

 

 

For copyright reasons some linked items are only available to Members of Parliament.

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