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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
János Bertók in October 2002. In reference to standards of behaviour Bertók
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.
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.
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.
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.
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.
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.
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’.
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’.
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’.
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.
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.
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.
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
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.
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:
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.
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.
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.
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.
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.
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
- Helen Williams, ‘Perceptions and performance: the Australian public
service experience’, International Review of Administrative Sciences
67(1), March 2001, p. 49–64.
- 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.
- ibid., p.18.
- Stafford Northcote and C E Trevelyan, ‘The Organisation of the Permanent
Civil Service’, Parliamentary Papers, Vol. XXVII, 1854, p1.
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