Australian and Overseas Public Service and Ministerial Staff Codes of Conduct


Current Issues

Australian and Overseas Public Service and Ministerial Staff Codes of Conduct

E-Brief: Online Only issued 8 June 2004

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

Introduction

In December 2003 the Parliamentary Library published an e-brief on codes of conduct for members of parliament titled Codes of Conduct in Australian and some Overseas Parliaments. This companion e-brief considers public sector codes of conduct. It provides links to relevant documents and a summary of codes of conduct covering federal and state public servants and staff working for ministers. It also includes conduct arrangements for public service and ministerial staff in some overseas countries.

In Australia, statutory codes of conduct for public servants operate at the federal and state government levels. In contrast, the federal and state governments, except for Queensland, have not introduced codes of conduct covering ministerial staff.

The approach to public service codes of conduct varies between jurisdictions. Most states have introduced general public service codes of conduct that are enshrined in legislation. In some cases, agencies are required to use the broad model to develop agency-specific codes, which are not statutory instruments. In other cases, such as the Australian Public Service, the generic code applies to all agencies. Unlike the United Kingdom, Canada and Ireland, Australia has made little progress in introducing codes of conduct covering ministerial staff.

The variation in approach to public service codes is reinforced by an OECD survey on ethics. The survey results were reported in a conference paper titled Building trust in government: lessons from OECD countries delivered by Dr J nos Bert k in October 2002. In reference to standards of behaviour Bert k stated that:

OECD countries state the standard of behaviour expected of public servants in a collection of documents. The three most common forms are laws, codes of conduct, and guidelines. More that two-thirds of OECD countries established a legal framework for the standards of behaviour expected of public servants. The form of legal documents ranges from Constitutions, general acts on civil service or public service, administrative procedures law, labour law, to dedicated codes on standards of conduct, disciplinary act and the conflict of interest and post-employment codes. Codes of conduct and codes of ethics or a civil service code are also a commonly used source in over one-third of the Member countries.

Information on ministerial staff can be found in the following Parliamentary Library publications by Dr Ian Holland: Accountability of Ministerial Staff? , Research Paper, No. 19, 2001 02 and Post-separation Employment of Ministers , Research Note, No. 40, 28 May 2002.

Back to top

Australian Public Service (APS)

The Public Service Act 1999 moves away from the rules of process that characterised the previous Act. It articulates principles, gives greater flexibility to individual agencies and devolves:

significant employer powers to agency heads, balanced by stronger accountability for the use of those powers. Most importantly, it articulates APS values, giving them firm legislative effect, and requiring agency heads to uphold them and promote them in their agencies.(1)

One of the key parts of the Act is its focus on values rather than rules. The APS Values are listed in section 10 of the Act. A Code of Conduct is also included in the Act and includes the requirement that employees uphold all the APS Values. The Code is listed in section 13.

Agency heads are required to uphold and promote the APS Values within their agencies. The current Public Service Commissioner, Andrew Podger, has described the Commissioner s responsibility relating to APS Values as evaluating the extent to which Agencies incorporate and uphold the Values, and to evaluate the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct .

The Public Service Commissioner also provides an annual report on the state of the Australian Public Service. This report includes an evaluation of the extent to which agencies have incorporated the APS Values and the adequacy of their systems and procedures for ensuring compliance with the Code of Conduct. The report is crucial to the maintenance of accountability across the Service.

The Public Service Act sets out who is bound by the Code of Conduct (section 14) and actions available to agency heads in dealing with breaches of the Code (section 15). The Act provides protection for whistleblowers in reporting breaches of the Code (section 16) and establishes the position of the Merit Protection Commissioner who assists agencies to meet the requirements of the APS Values and the Code of Conduct.

In 2003 the Australian Public Service Commission published APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and agency heads. The introduction describes the Guide in the following way:

The aim of this publication is to assist APS employees to understand the practical application of the APS Values and Code of Conduct in both common and unusual circumstances. Along with the Commission s Good Practice Guide, Embedding the APS Values, it is also intended to assist Agency heads to establish policies and procedures that promote the APS Values and ensure compliance with the Code.

The Merit Protection Commissioner is required to report annually to the Public Service Commissioner. The report is included in the Public Service Commissioner s annual report. The State of the Service Report 2002 03 has, for the first time, reported on elements of the Code suspected of being breached and the outcome of investigations into breaches.

Back to top

Australian Parliamentary Service

The Parliamentary Service Act 1999 established a separate Parliamentary Service.

The Act s substantive provisions are very similar or reflect the same philosophy as those in the Public Service Act 1999.

Like the Public Service Act 1999, this Act emphasises values rather than rules. The Values are listed in section 10 and the Parliamentary Service Code of Conduct is listed in section 13.

The Act also sets out who is bound by the Code of Conduct (section 14) and actions available to agency heads in dealing with breaches of the Code (section 15). The Act provides protection for whistleblowers in reporting breaches of the Code (section 16).

The Parliamentary Service Act provides for a Parliamentary Service Commissioner and a Merit Protection Commissioner. Although the APS and the Parliamentary Service are statutorily separate, the current holders of the office of Public Service Commissioner and Merit Protection Commissioner also perform the same roles for the Parliamentary Service.

Back to top

Ministerial staff

At present there is no code of conduct governing ministerial staff. Ministerial staff are given non-binding guidance on conduct through the Prime Minister s Guide on Key Elements of Ministerial Responsibility. This is largely confined to conflict of interest issues (see section 9 titled Ministerial Staff Conduct ).

Two recent Senate committees have recommended that ministerial staff be more accountable. In October 2002 the Senate Select Committee on a Certain Maritime Incident recommended the development of a Code of Conduct for ministerial advisers incorporating a Statement of Values commensurate with Conduct and Values provisions that apply within the Australian Public Service (Recommendation 11).

Similarly in October 2003 the Senate Finance and Public Administration References Committee report, Staff employed under the Members of Parliament (Staff) Act 1984, recommended that a code of conduct for ministerial staff be developed and implemented (Recommendation 9). The Committee also noted (paragraph 6.19) that the codes for ministerial and non-ministerial staff need to be different, and would have to be administered by different entities.

To date there has been no government response to either report.

Back to top

New South Wales

In 1997 Memorandum 97 10 advised ministers and agency heads that the Premier s Department and the Independent Commission Against Corruption had revised the model NSW public sector code of conduct to ensure that it continues to serve as an appropriate model for agency-level codes .

Guidelines were also developed to assist agencies in reviewing, revising and implementing their own code of conduct.

The Model Code of Conduct for NSW Public Agencies: Policy and Guidelines states that the purpose of the model code is:

To form the basis for agency-level codes of conduct developed to suit the particular operational requirements and circumstances of their agencies

To provide guidance on the standards of behaviour expected of public sector employees.

Information on the Code of Conduct is included in the Personnel Handbook published by the Premier s Department s Public Sector Management Office.

In 1998 the Premier s Department published the Code of Conduct and Ethics for Public Sector Executives. This code states that public sector executives are required to acknowledge and agree to uphold the principles and practices described in this Code , under the terms of their Contract of Employment . The Code notes that Executives must also comply with the requirements of their own agency s code of conduct.

 Back to top

Victoria

The Commissioner for Public Employment publishes the Code of Conduct for the Victorian Public Sector. In the foreword the Commissioner states that:

Your employer will either adopt this code or adapt it to your organisation s needs. Any public sector organisation s code must be consistent with the code I publish. The code of conduct is a public statement of how we conduct our business and how we treat the public, our clients and colleagues. It builds upon the employment and conduct principles contained in the Public Sector Management and Employment Act 1998. Those principles are binding on all Victorian public sector employees, from the chief executive down.

Back to top

Queensland

The Public Sector Ethics Act 1994 defines the ethics principles and obligations for public officials and sets out the framework for the codes of conduct to be developed by each agency. Formal approval of an agency s code is usually by the Minister responsible for the agency. Directive 9/96: Code of Conduct issued by the Public Service Commissioner prescribes the relevant Code of Conduct, contravention of a provision of which is a ground for discipline under the Public Service Act 1996 .

In June 1995 the Public Sector Management Commission issued Guidelines for the Development of Codes of Conduct to assist agencies to develop codes of conduct and meet the other requirements of the Public Sector Ethics Act.

The Public Sector Ethics Act 1994 defines a conflict of interest issue as an issue about a conflict between the person s personal interests and the person s official duties . Any conflict of interest must be resolved in favour of the public interest. The Act established the office of the Integrity Commissioner who is responsible for giving advice to designated persons about conflict of interest issues. This list of designated persons includes ministerial staff. The Integrity Commissioner is also responsible for giving the Premier advice on setting ethical standards, when that advice is sought .

 Back to top

South Australia

The Public Sector Management Act 1995 (Part 2) sets out the ethical framework for public sector employees. It applies to all public sector employees and agencies. The Commissioner for Public Employment has published a Code of Conduct for South Australian Public Sector Employees. This Code outlines the meaning and application of the three broad elements (integrity, respect and accountability) that underpin ethics and standards of conduct in the South Australian public sector. The Commissioner has also issued a Guideline on Ethical Conduct for the South Australian Public Service.

PSM Act Determination 9: Ethical Conduct has also been issued by the Commissioner. This Determination outlines responsibilities in relation to the ethical conduct of public servants and the management of conduct disciplinary processes .

Back to top

Tasmania

The State Service Act 2000 sets out the State Service Principles (s. 7) and the State Service Code of Conduct (s. 9). The Code applies to all State Service officers and employees.

In May 2002 the Public Service Commissioner issued Procedures for the investigation and determination of whether an employee has breached the Code of Conduct. The introduction notes that the State Service Code of Conduct complements the State Service Principles and may be supplemented by Agency specific standing orders .

Back to top

Western Australia

The Public Sector Management Act 1994 created an independent statutory office of the Commissioner for Public Sector Standards. Section 21 outlines the functions of the Commissioner which include to:

Establish public sector standards setting out minimum standards of merit, equity and probity to be complied with in the Public Sector in and monitor compliance with those public sector standards

Establish codes of ethics setting out minimum standards of conduct and integrity to be complied with by public sector bodies and employees, and monitor compliance with those codes

Assist public sector bodies to develop, amend or repeal codes of conduct.

A revised Western Australia Public Sector Code of Ethics came into force on 1 March 2002. It sets the minimum standards of conduct and integrity for the WA public sector. It does not prevent the development of agency-specific codes of conduct and applies to all public sector employees including chief executive officers.

Back to top

Australian Capital Territory

The Public Sector Management Act 1994 sets out the general obligations of public employees. These include sections outlining values and general principles (sections 6, 7, 8) and a Code of Ethics (section 9).

The Public Sector Management Standards operate under the Act. Standard No. 4 on Ethics provides practical advice on the application of the code of ethics. The ACT Public Service Best Practice Notes (1.1 Code of Ethics) provide advice on the processes and practices required under the Standards and the Act. The notes on the Code of Ethics state that:

Agencies may develop their own specific applications of the Code for particular workplaces. Agency guidelines must be consistent with the legislative requirements of the Act and the Standards.

Back to top

Northern Territory

The Public Sector Employment and Management Act 1993 establishes employment and management principles for the Northern Territory public sector including principles of conduct. The Office of the Commissioner for Public Employment has published Northern Territory: Public Sector Principles and Code of Conduct. This publication lists the principles of conduct and the foreword states that:

The Principles and Code of Conduct are part of the terms and conditions of the employment relationship. As such they are binding on all employees and must be observed by all, including Chief Executive Officers and the Commissioner for Public Employment.

As part of the Public Sector Employment and Management Employment Instructions the Commissioner has issued Employment Instruction Number 13: Code of Conduct.

Back to top

Selected overseas public service and ministerial staff codes

United Kingdom

The Civil Service Code came into force on 1 January 1996, and forms part of the terms and conditions of employment of every civil servant. It sets out the constitutional framework within which all civil servants work and the values they are expected to uphold. It is the key statement of the rights and responsibilities of civil servants. The Code is modelled on a draft originally put forward by the House of Commons Treasury and Civil Service Select Committee. It was revised on 13 May 1999 to take account of devolution to Scotland and Wales.

Under the terms of the Code, civil servants are required to conduct themselves with integrity, honesty, impartiality and objectivity

Back to top

Ministerial staff

In 2001 the UK drew up a Code of Conduct for Special Advisers which the Constitution Unit, University College London, has described as consolidating:

Appropriate elements of the existing Civil Service Code setting out the duty of special advisers to uphold the political impartiality of the civil service. It also includes a section on the direct media contacts of special advisers, making it clear the nature of the role they play in relation to the work of the civil service information staff. The Code of Conduct only applies to paid special advisers.(2)

The Constitution Unit has also stated that:

The UK s Code of Conduct for Special Advisers is a detailed document setting out the job specification, status, political responsibilities and relations with government of special advisers. As such it intends to provide as comprehensive a set of guidelines as possible without recourse to legislation. In this respect the UK is far in advance of other countries none of which have as extensive a code or set of guidelines. In order to tighten up adherence to the code the UK should, indeed, have it included as part of a revised Civil Service Act. Other than that, it could follow the Irish example and draft a specific Ethics in Public Office Act with parliamentary oversight and sections covering the specific conduct of special advisers. (3)

The Committee on Standards in Public Life published its ninth report titled Defining the boundaries within the Executive: Ministers, Special Advisers and the permanent Civil Service in April 2003. (See also the summary of the ninth report.) The report concluded that there is a need to put the Civil Service on a statutory footing and that there should be reinforcement of independent scrutiny of the maintenance of the core values by giving the Civil Service Commissioners power to investigate on their own initiative .

On the subject of special advisers the report recommended the use of statute to set out what a special adviser can do , that it be made clear in the Ministerial Code that all Ministers are personally accountable for the management and discipline of their special advisers and that Parliament set an upper limit on the total number of special advisers which may be appointed .

The Government s response to the ninth report in September 2003 noted in reference to the recommended Civil Service Bill:

The Government accepts the case in principle for legislation but any legislation has to compete for its place alongside many other priorities. The Government also believes that much more can be done to implement most of the Committee s concerns without or in advance of legislation. Once the Public Administration Select Committee s proposals for legislation for the Civil Service have been published, the Government will itself publish a draft Bill, as a basis for further consultation.

The Committee recommended that the section of the Code of Conduct for Special Advisers specifically relating to civil servants should be inserted into the Civil Service Code as soon as possible. The Government agreed to amend the Civil Service Code and the Civil Service Management Code to this effect.

On 5 January 2004 the House of Commons Public Administration Select Committee published a report titled A Draft Civil Service Bill: completing the reform which included a draft Civil Service Bill. The report noted that Stafford Northcote and C. E. Trevelyan had first recommended in their 1854 report(4) which laid the foundations for a professional and politically neutral civil service that a short Bill be prepared to enshrine key principles and structures to safeguard them in statute .

The Committee report (paragraph 7) stated that the draft Bill:

Provides a clear framework which would enable Parliament to ensure that public service principles are upheld and that civil servants and others are carrying out their jobs with propriety. It is firmly based on existing codes and institutions, while giving Parliament greater powers of oversight and strengthening accountability. The Bill is not intended to shield civil servants from change or make them a protected species. In fact, it would make their duties and obligations clearer than ever. Neither would it affect the right of ministers to run their departments, make policy and deliver programmes. What it would do, for the first time, is to anchor some of the key operating principles of our system of government in Parliament.

The draft Bill also contained provision to clarify the status and role of special advisers.

The Government gave a commitment to publish a draft Civil Service Bill in the current parliamentary session (2003 04) and to take into account the draft Bill prepared by the Public Administration Committee.

Back to top

Ireland

In January 2003 the Standards in Public Office Commission issued the second edition of Guidelines on Compliance with the Provisions of the Ethics in Public Office Acts, 1995 And 2001 which assists public servants to comply with the provisions of the Ethics in Public Office Acts. Paragraph 11 states:

The guidelines provide information on the steps that public servants who are covered by the Ethics Acts need to take in order to comply with the requirements of the legislation. In addition to the guidelines, public servants may seek advice from the Standards Commission in relation to any provision of the legislation or the application of any such provision in any particular case. This includes the codes of conduct for public servants which will be drawn up by the Minister for Finance.

The guidelines include information on the procedure for the declaration of interests by certain civil servants and special advisers.

The draft Civil Service Code of Standards and Behaviour sets out the principles and standards which govern the behaviour of staff in the Civil Service. It was approved by the Government in 2000 and laid before both Houses of the Oireachtas (Parliament) on 29 November 2000. It was referred to the joint committee on Finance and the Public Service in December 2000. The draft was approved finally by the Committee on 25 June 2003. Both Houses of the Oireachtas approved the draft code on 2 July 2003.

The code is still not available on the Department of Finance website. This department is responsible for advising and supporting the Minister for Finance and the Government on the overall management and development of the public sector .

Other legislation relevant to the conduct of civil servants includes:

Back to top

Ministerial staff

At present there is no code of conduct covering special advisers but it is anticipated that when the Civil Service Code of Standards and Behaviour is finalised it will be issued to special advisers. Special advisers are required to comply with the requirements set out in the Ethics in Public Office Act. Section 5 of the Guidelines issued by the Standards Commission applies to special advisers who are required:

To submit each year to the Public Offices Commission a statement of registrable interests

To submit, on leaving the post, a copy of the contract listing the terms and conditions under which one acted as special adviser.

Special advisers are also included in the Department of Finance circulars covering standards of behaviour.

Back to top

Canada

The Values and Ethics Code for the Public Service sets out the values and ethics of public service to guide and support public servants in all their professional activities. The Code sets out public service values as well as conflict of interest and post-employment measures. The Code has been in operation since 1 September 2003.

The Code forms part of the conditions of employment in the Public Service of Canada. At the time of signing their letter of offer, public servants acknowledge that this code is a condition of employment.

The Treasury Board Secretariat acts as the coordinating point for ethics policy and expertise and is responsible for promoting public service management based on values and ethics. The Secretariat s Office of Public Service Values and Ethics publishes information relating to ethics.

The Public Sector Integrity Officer deals with breaches of the Values and Ethics Code.

Public servants must also evaluate on a regular basis whether their assets and liabilities need to be included in a confidential report. If there is any real, apparent or potential conflict between the carrying out of their official duties and their assets and liabilities, a confidential report must be filed. If there is no relationship, no report is required.

Back to top

Ministerial staff

Ministerial staff are subject to the Conflict of Interest and Post-employment Code for Public Office Holders (2003), administered by the Ethics Commissioner. Although ministerial staff are a special category of exempt public servants (that is personnel exempt from the normal appointment procedures under section 39 of the Public Service Employment Act), they are subject to the provisions of the Code.

Since March 2004 the Office of the Ethics Commissioner has been a statutory position with the Commissioner required to report to Parliament and issue an annual report. The statutory mandate of the Ethics Commissioner in relation to public office holders is:

To administer any ethical principles, rules or obligations established by the Prime Minister for public office holders

To provide confidential advice to the Prime Minister with respect to those ethical principles, rules or obligations and ethical issues in general

To provide confidential advice to a public office holder with respect to the application to him or her of those ethical principles, rules or obligations.

The Treasury Board Secretariat has published Guidelines for Ministers Offices. Section 1.1 of the Guidelines states that:

All persons on the political staff of a Minister or Minister of State, whether they be exempt, or constituency or House of Commons, full time or part-time, on salary or on contract, are subject to the Conflict of Interest and Post-Employment Code for Public Office Holders.

The Ethics Commissioner, under the general direction of the Clerk of the Privy Council, administers the Code and applies compliance measures.

Back to top

New Zealand

The core values of the Public Service are described in the New Zealand Public Service Code of Conduct, which is issued by the State Services Commissioner under section 57 of the State Sector Act 1988. The Code describes the standards of conduct required of public servants in line with the core values. The Code has two particular purposes:

To provide guidance to public servants on the standards of behaviour required of them

To provide a basis for more detailed codes that are required to meet the particular circumstances of individual departments.

The State Services Commissioner has responsibility for maintaining the standards of integrity and conduct that apply to the Public Service.

Ministerial staff

There is no code of conduct for ministerial staff.

Back to top

United States

The Standards of Ethical Conduct for Employees of the Executive Branch is based on Executive Order 12674, as amended by Executive Order 12731, and a number of ethics-related statutes. The standards set out rules to be followed by executive branch employees in seven areas: gifts from outside sources; gifts between employees; conflicting financial interests; impartiality in performing official duties; seeking other employment; misuse of position; and outside activities.

The Office of Government Ethics (OGE) was established by the Ethics in Government Act 1978. The OGE website describes its role as providing:

leadership in the executive branch to prevent conflicts of interest on the part of Government employees, and to resolve those conflicts of interest that do occur. In partnership with executive branch agencies and departments, OGE fosters high ethical standards for employees and strengthens the public s confidence that the Government s business is conducted with impartiality and integrity.

Back to top

Congressional staff and staff employed by members of Congress

The Standards of Ethical Conduct for Employees of the Executive Branch (section 2635.104, paragraph (b)) deals with Applicability to employees on detail . This paragraph states:

Details to the legislative or judicial branch. An employee on detail, including a uniformed officer on assignment, from his employing agency to the legislative or judicial branch for a period in excess of 30 calendar days shall be subject to the ethical standards of the branch or entity to which detailed. For the duration of any such detail or assignment, the employee shall not be subject to the provisions of this part, except this section, or, except as provided in paragraph (d) of this section, to any supplemental agency regulations of his employing agency, but shall remain subject to the conflict of interest prohibitions in title 18 of the United States Code.

This indicates that officials and employees of the Senate and the House of Representatives are subject to either the Senate Code of Official Conduct (Rules 34 to 43 of the Standing Rules of the Senate) and the provisions of the Senate Ethics Manual or the Code of Official Conduct (Rule XX111)in the House of Representative Rules.

Endnotes

  1. Helen Williams, Perceptions and performance: the Australian public service experience , International Review of Administrative Sciences 67(1), March 2001, p. 49 64.
  2. Simon King, Regulating the Behaviour of Ministers, Special Advisers and Civil Servants, The Constitution Unit, School of Public Policy, University College London, 2003, p. 11.
  3. ibid., p.18.
  4. Stafford Northcote and C E Trevelyan, The Organisation of the Permanent Civil Service , Parliamentary Papers, Vol. XXVII, 1854, p1.

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

Back to top


Facebook LinkedIn Twitter Add | Email Print