Dr Andrew Brien (Consultant)
Politics and Public Administration Group
14 September 1998
Contents
Major Issues Summary
Introduction
Options for addressing the
conduct of parliamentarians
The purposes of a code of
conduct
What would a code of conduct
look like?
Implementation mechanisms
for codes of conduct
Are codes effective?
Why is actual and perceived
misconduct an issue in a democratic society?
Conclusions
Endnotes
Appendix 1
Appendix 2
Appendix 3
Appendix 4
Appendix 5
Appendix 6
Major Issues
Summary
Overview
This paper examines the feasibility,
options and importance of a code of conduct for
parliamentarians. The paper has two parts. Discussed in
the first part are:
-
- the options for addressing the conduct of
parliamentarians;
-
- implementation mechanisms for codes of conduct;
-
- the effectiveness of codes in influencing the conduct of
parliamentarians and public perceptions of the institution of
parliament and its members.
In the second part, the issue of why the conduct
of parliamentarians should be such an important one in a democratic
society, is addressed.
Background
For the last eighteen months or so a recurring
issue in the Commonwealth Parliament, the press and in the
community has been the standard of conduct of parliamentarians. The
reason is that there has been no shortage of material for
discussion. Ministers and members of the opposition have faced
allegations of misusing travel allowances and allegations of
conflicts of interest, amongst other allegations of
impropriety.
Public attitudes to the behaviour of
parliamentarians are reflected in a recent Roy Morgan poll which
revealed that only seven per cent of Australians believe that
Members of both State and Federal Parliament are of high or very
high standards of honesty and ethics. This finding represented a
decline of two per cent from the previous year. The only profession
rating lower than Members of Parliament is car salesmen, at two per
cent. Trust in parliamentarians is at an all time low
level.
As well, voters disillusioned with the
major parties are deserting them, often to support the One
Nation party. This is shown clearly by the support that One Nation
attained in the recent Queensland election, in which it captured
almost one quarter of the primary vote. According to another Roy
Morgan poll, it is not only the policies that One Nation is
perceived to have that are important considerations for over 25 per
cent of One Nation's supporters. It is also the lack of honesty and
truthfulness on the part of other political parties, and the fact
that voters believe that the One Nation party may be able to exert
influence to keep the other parties honest.
Disillusionment with the conduct of
parliamentarians has been a feature of political discussion, at
both Commonwealth and State levels for some time.
One response that has found a measure of support
in the community... from commissions of inquiry and from some
parliamentarians and parliaments, is developing, adopting and
enforcing a code of conduct.
This issue has also been canvassed at a
national level by a working group of the Commonwealth
Parliament. This working group produced a draft
code of conduct for Members which was presented to both Houses in
1995. More recently, the issue of a code of conduct was
the topic of an Australasian Study of Parliament Group conference
held at Perth in October 1997.
Adopting a code of conduct as a response to the
perceived poor conduct of some parliamentarians raises a number of
questions:
-
- What are the options available for improving the conduct of
parliamentarians?
-
- What is the purpose of a code of conduct for
parliamentarians?
-
- Are codes of conduct practicable responses to public concern
about the behaviour of parliamentarians, given the demands of
political life?
-
- Are codes of conduct the most effective mechanisms to use to
improve the conduct of parliamentarians?
-
- Are codes of conduct the most effective mechanisms to use to
increase the trust of citizens in parliamentarians?
-
- What should codes of conduct contain-and how should codes be
implemented and enforced?
-
- What features would an acceptable and effective code of conduct
have?
-
- Why is misconduct important in a democratic society?
Major findings
-
- A code of conduct for Commonwealth parliamentarians should be
adopted. It would form an important element in any program designed
to foster public trust in, and improve public perception of,
Parliament and its members
-
- The purpose of a code would be not to control the
behaviour of parliamentarians but to:
-set public standards by which the behaviour of
parliamentarians can be assessed
-provide a basis for assessing proposed
actions and so guide behaviour
-provide an agreed foundation for
responding to behaviour that is considered
unacceptable
-assure and reassure the community that the
trust placed in parliamentarians is well placed.
-
- In order for a code to be credible it must not only be
aspirational but also contain clear guidelines and injunctions,
prescriptions and prohibitions
-
- The code must be communicated to the community and be seen to
be subscribed to and enforced by Parliament
-
- Such a code must not deal only with conflicts of financial
interest, but more generally it must deal with:
-behaviour of members that may tend to thwart
the operation of parliament
-abuse of the benefits, allowances, privileges
and position of a Member
-actions that may otherwise bring or be thought
to bring into disrepute other Members or the institution
itself.
-
- The code should be administered on a day to day basis, by an
independent officer of the parliament-a parliamentary commissioner
for conduct-who is appointed jointly by both houses of
Parliament
-
- The commissioner should not be established under separate
legislation, but rather be a creature of the standing orders of
both Houses
-
- The activities of the commissioner should be monitored by a
joint committee of privileges, whose other major function is to
ensure that procedural proprieties are observed
-
- In order that the code be credible and the Commissioner be able
to act independently, the Commissioner must be empowered to:
-give (confidential) advice and guidance to
members
-investigate complaints and references
-send for persons and documents
-make conclusions and recommendations, which
after presentation will become public
-issue reports on complaints and references to
both Houses that will be public documents.
Introduction
Australians view the honesty and ethics of
Members of both State and Federal Parliament as only slightly
better than those of car salesmen... Only 7 per cent of Australians
believe that Members of both State (down 2 per cent, since 1997)
and Federal (down 2 per cent) Parliament are of high or very high
standards of honesty and ethics. The only profession rating lower
than Members of Parliament is car salesmen (2 per cent, down 1 per
cent).(1)
When the Commonwealth Parliament began its 1998
sittings there were immediate allegations, from both major parties
and in both Houses, about the conduct of members in opposing
parties and ministers. The allegations covered a range of issues
from conflicts of interest to misusing parliamentary entitlements,
most notably travel allowances. This followed torrid 1997 sittings
in which a number of ministers resigned as a result of breaching
the Prime Minister's guide to ministerial responsibility(2), and
allegations surrounding the probity of members in the major parties
received considerable attention within the Parliament, the Press
and the community. One result of this ongoing focus in probity was
that the attention of the Legislature and the community became, to
some extent, diverted from pressing and important matters. These
included matters such as deliberation on the Wik Bill, the Public
Service Bills, ongoing concern about industrial relations, as well
as the performance of the executive in general.
Another result was that the furore fed a growing
cynicism about the motives and behaviour of parliamentarians, the
processes of democratic governance, and the institutions of
Australian civil, democratic society.(3) For example, in June 1998
social attitudes researcher Hugh Mackay reported that:
Esteem for politicians is so low at present-and
still declining-that voters are dealing with the problem by
insulating themselves from it. They repeatedly talk of the need for
leadership, of the mongrels in Parliament, of pollies with their
snouts in the trough, of the spinelessness of the Prime
Minister...yet the heat seems to have gone out of many of these
assertions.
Although there might be distinct policy
differences between the Government and the Opposition, the level of
cynicism and mistrust in the community is now so high that such
distinctions are relatively insignificant when weighed against the
more emotional assessment that they're all the same.
Conversations about politics were characterised
by a sense of bewilderment that things have got so bad; a deep
sense of mistrust of politicians on both sides; a level of cynicism
bordering on contempt. (H. Mackay, Mind & Mood, June
1998)(4)
This research reflected a stable attitude in the
community towards parliamentarians, that Mackay had referred to a
year before:
The community is feeling deeply cynical-and
disappointed-about the integrity of politics, the church, the law,
business and brands. (H. Mackay, Mind & Mood, July
1997) (5)
This reflected opinion polls from 1995, which
revealed that 56 per cent of respondents said that they had lost
faith in the political system.(6) Recent events are likely to
compound this, as polls also indicate that for 55 per cent of
voters the travel rorts allegations led them to think less of
politicians(7) and that 81 per cent agreed that the public's trust
in Federal Parliament had been damaged by the allegations against
Senator Colston.(8) Moreover, the sudden rise of the One Nation
Party is, in part, attributable to the sense of alienation that
many feel from mainstream politics, a central cause of which is the
behaviour of parliamentarians.(9)
That the probity and conduct of
parliamentarians, at both State and Commonwealth levels, are a
concern to the community, is clear. This is also reinforced by the
various commissions of inquiry that have, over the past decade or
so, probed governmental actions in Western Australia and
Queensland.
In having a concern with the probity and conduct
of parliamentarians Australia is no different from other democratic
nations, where ethics or conduct scandals occur with an almost
monotonous regularity. Examples such as the ongoing allegations
surrounding the President of the United States concerning business
dealings and the propriety of his personal behaviour, and the
sleaze scandals to which members of the British Conservative Party
seemed prone, need little expansion. Moreover, in many democracies,
voter turnout is falling, indicating disenchantment with the
political system, as a result of such scandals.
The reason for this is not that the conduct of
contemporary parliamentarians is any worse than their predecessors.
There does not seem any reliable evidence for that.(10) There are
several causes. One reason is that in the liberal democracies the
level of scrutiny has increased in the past thirty years.
Consequently, so has the possibility of discovery and pursuit by
the media and public opinion. This has occurred through the
democratisation of public life, by the growth in the number of
media outlets, access to them on the part of the electorate, and
the availability of information about the apparent personal and
financial benefits of public office. A key element in the movement
of information is that almost all the electorate is literate;
almost all citizens have access to radio and television. And, in a
highly competitive marketplace, ethical scandals sell newspapers,
deliver audiences and make political capital. A recent example is
the allegations concerning the business dealings of former Prime
Minister Paul Keating when he was Prime Minister. There is some
suggestion that these allegations were orchestrated by his
political enemies in an effort to discredit him and those of his
former colleagues who are now members of the Opposition. (11)
As well, Western democracies such as Australia,
have undergone massive structural change. In the Commonwealth, the
services of government have been reduced; tenure in employment is
no longer the norm and the role of government is itself a matter of
discussion:
People are feeling confused about who now is
responsible for public goals. Australia has a high rate of
volunteering. We like to feel involved in the community. But elites
are telling us if it can't be costed it has no value.(12)
This has fuelled a distrust amongst citizens
that those who enjoy public trust no longer really serve the
community or share its wider ideals, such as an egalitarian society
committed to the fair go:
When, instead of acting as a peacemaker, the
Federal Government stepped into the wharf dispute on the side of
the stevedoring company, it only underlined the winner-loser
divide, rousing suspicions that leadership by sectional interests
means; we'll be okay and the rest of you can swim for your
life.(13)
As a result of such behaviour, the community is
suspicious of the motivations of its elected representatives. It
dislikes the results of policies that appear to them to be driven
more by blind ideology, self-interest or pressure groups rather
than the needs and aspirations of the community. A focus on the
behaviour and motivation of parliamentarians, and how these things
may be deficient, is then hardly surprising. It was not always like
this, however. Lord Nolan, who was chairman of the Committee on
Standards in Public Life(14), provided this salient example in the
Committee's report. In 1913 two government ministers, one of them
David Lloyd George (then Chancellor of the Exchequer) and the other
the Chief Government Whip, purchased shares in the American Marconi
company. They used inside information that the British Government
had just signed a large and lucrative contract with the British
Marconi company. The shares doubled in value. The ministers at
first tried to conceal their actions and when they were exposed
they claimed that, despite appearances, they were not guilty of any
wrongdoing. Apart from embarrassment, the ministers suffered no
adverse political consequences. Lloyd George went on to become
Prime Minister; the other, Lord Chief Justice and the Viceroy of
India. The House of Commons select committee established to
investigate the matter divided upon party lines in the minister's
favour, as did the House. Importantly, neither the major newspapers
nor the general public took much of an interest.
Such a response is unlikely to occur now. Public
indifference, as the polls referred to already indicate, is a thing
of the distant past and public sentiment, however motivated, is
clear. The public expect high levels of behaviour from their
parliamentarians and judge them harshly when it is not forthcoming.
As Hugh Mackay reported in 1997:
Any marketeer (or other propagandist) caught out
telling less than the truth or engaging in other forms of deception
will be treated harshly by the community.(15)
This concern with the behaviour of
parliamentarians is also reflected in the avid interest, noted by
commissions of inquiry, that citizens take in the work of the
various commissions.(16) Moreover, interest in and concern for the
political process is also indicated by the 1997 opinion poll(17)
which revealed that 67 per cent of electors said that they believed
that voting should be compulsory, which represents an increase from
1995, when 58 per cent said they favoured compulsory voting.(18)
The fact that there is public interest is important, since it shows
that the electorate does care about its system of government but
wants the ethical aspects of behaviour, and perceived behaviour, to
improve.
Interest is a double edged sword. Interest in
the political life of the community invites scepticism. In fact,
scepticism is vital to any functioning democracy because it
motivates citizens to scrutinise those in positions of public
trust, and demand from them reasons and justifications before they,
the citizens, provide consent and support. The scepticism of
citizens is possible only because they are still interested; that
is, because they still do care and are still engaged with the
political process enough to be bothered making judgements. This
scepticism also imposes upon parliamentarians the requirement that
they explain and justify their actions to citizens. A contemporary
example is the GST debate. Hugh Mackay reports that the community
is suspicious of the proposal and concerned about its equity, and
its effects upon the elderly and the poor.(19)
The scepticism of citizens, however, seems to be
evolving as a result of the perceived and actual unethical
behaviour of parliamentarians into cynicism about the political
system itself as recently noted by the Western Australia Commission
on Government.(20) Familiarity, of a kind, is breeding
contempt.
The issue facing the liberal democracies is how
the challenge of actual and perceived unethical behaviour and the
consequent growing cynicism about the system of government, ought
to be met. This is not merely a pragmatic ought: one that asks for
specific remedies. It is also an ethical ought. It is asking
citizens to identify those measures that are themselves ethical and
part of an ethical framework of governance, which ought to be
adopted in order to improve the system and foster better behaviour
on the part of parliamentarians.
Responses to
community concerns
As one would expect in a democracy, the response
both abroad and within Australia has been to form a committee, take
submissions and evidence, write a report and make
recommendations.(21) A central element of the responses made by
overseas legislatures to the question of how to improve the ethical
behaviour of parliamentarians, is the recommendation that a code of
conduct be written and implemented.(22) In this respect, Australia
has been no different. In Western Australia(23), Queensland(24),
Tasmania(25), Australian Capital Territory(26), and New South
Wales(27), in the various types of inquiry that have examined the
abuse of public trust and ways to prevent its abuse, codes of
conduct have featured as prominent elements in the remedy, not only
for parliamentarians but public servants and other holders of
public office.(28) Professor Paul Finn has quipped that probity
will be achieved, it is hoped, by a code of conduct-led
recovery.(29)
Enthusiasm for a code of conduct has not been
confined to the Australian States. There have been calls over the
years for a code of conduct for Commonwealth parliamentarians and
other holders of public office.(30) In this respect, if the
Commonwealth were to move down this path and implement a code of
conduct, it will be following the example of the two liberal
democracies most influential in its foundation:
the United States and the United Kingdom. As
well, it will be following the Canadian provinces, amongst other
jurisdictions.(31)
At present however, at the Commonwealth level
there is no code of conduct for parliamentarians. There is a code
of ministerial conduct that the Prime Minister issues and to which
all ministers are required to subscribe.(32) This code is a
modification of a ministerial handbook used by the Hawke and
Keating Governments and that handbook was in turn a development of
a set of standards used by the Fraser Government.(33) Moreover,
under the standing orders of the Senate and a resolution of the
House of Representatives(34), members of each House are required to
disclose specified types of interests in a register of member's
interests, maintained by their respective House.
For the most part, however, the ethical
behaviour of Commonwealth parliamentarians depends on a combination
of factors. These include the ethical resources of each
parliamentarian, precedent, the party room, influences and guidance
from behavioural examples, the resolve of his or her party leader
to enforce standards, the sentiment of the electorate and the
interest of the press. It is, to be sure, a largely self-regulating
system. If public sentiment and recent parliamentary debate are
anything to go by, the system does not work as effectively as the
community would like.
Focus of paper
It is important to say at this point that the
focus of this paper is not illegal actions, such as fraud, bribery
and corruption, or actions that may involve a breach of
parliamentary privilege, such as interfering with a member in the
execution of his or her duties. Both these sorts of actions are
prohibited at law.(35)
The focus of this paper is those actions that
constitute misconduct, in the public mind, and which are often
described as unethical. These include, for example, not only
conflicts of interest and failure to declare interests in
accordance with the directives of the two Houses, which have been
the primary focus of most of the codes adopted or proposed around
the world and within the Commonwealth, but also:
-
- failing to table documents, or failing to answer questions
directly in the House or in committee, thus thwarting
accountability
-
- misusing parliamentary privilege
-
- misusing parliamentary entitlements or resources
-
- using a position for personal or party advantage; for example,
influence peddling, soliciting donations to political parties
-
- post-parliamentary employment
-
- acting in a way that prevents the parliament functioning as it
is supposed to
-
- acting in a way that may reflect adversely upon the
institution.
This focus seeks to place the concerns of the
community and the response of the legislature in the broader
context in which the conduct of parliamentarians is viewed by the
community. To be sure, it is a criticism of many of the codes that
have been proposed and implemented that they have been narrowly
focused on financial conflicts of interest, gifts, and similar such
matters, when major areas of misconduct encompass broader
activities and legislative functions.(36) The proposed New South
Wales code is a case in point. [See appendix 5.] It fails to
mention respect for the democratic process or democratic
institutions or acting in a way that would be thought to bring the
parliament into ill repute. It is, however, in those areas that the
misconduct that is so corrosive of public trust is prevalent.
The reason that narrowly focused codes are
misconceived while broadly cast codes are appropriate, is that one
point of any code of conduct is to fortify the democratic process.
It will do so by fostering accountability and transparency and by
doing that, promote a higher standard of behaviour amongst
parliamentarians while also fostering trust in the system of
government. Merely tackling conflicts of interest, bribery, or
external influence, which is the focus of the proposed New South
Wales code, leaves relatively untouched broader issues of
accountability and transparency-elements that any system must
possess if democracy is to be practiced and the community is to
have confidence in the system of government. These are also the
areas in which contemporary failures in the system of government
occurred in two of the Australian states. Accountability and
transparency are also continuing issues, as indicated by the misuse
of travel entitlements and failure to observe express standards of
ministerial conduct.
On a State level, but with implications for the
Commonwealth Parliament, issues of accountability and transparency
remain topical. In June 1998 the High Court considered whether the
New South Wales Legislative Council had the constitutional power to
require the executive to table documents.(37) This raises the issue
of whether a code of conduct that specified a procedure for
resolving orders from a House that the executive produce documents,
would enhance accountability and transparency, promote public
deliberation and go some way to preventing the undermining of the
system of government. We recall, at this point, that the failure of
the executive to be accountable, as occurred in Queensland and
Western Australia, was an element in the alleged corruption in
those states. It was those failures and subsequent, similar ones,
that prompted the contemporary interest in codes of conduct as a
means of influencing the behaviour of parliamentarians.
Experience from those jurisdictions that have
codes of conduct suggests that replacing the narrow focus of codes
of conduct with broader concerns of propriety is a natural
development of codes. Mr Ted Hughes, the Conflict of Interest
Commissioner in British Columbia stated that while he considered
that the conflict of interest legislation has been substantially
successful in accomplishing what was expected of it by those
legislators who enacted it, in his view it needed to develop much
as legislation had in Ontario and Alberta. In those jurisdictions,
the narrow focus on conflicts of interest had been replaced with
broader concerns about ethics and integrity. This led, for example,
to the Ontario Conflict of Interest Act being replaced with an
Integrity Act:
However, what I have come to realize as I have
performed this job over a five-year period is that conflict of
interest is only one aspect, one component if you like, of honour,
trust, integrity and morality in public service. What I believe
should occur is for existing legislation, at least in British
Columbia, to embrace the wider gamut of honour, trust and integrity
in public service in the same way as legislation has embraced the
concept of conflict of interest.... If what I advocate were to come
to pass, the British Columbia Act would, like the one in
Ontario(38), have to be renamed the integrity or Ethics Act and the
Commissioner reconstituted, as in Ontario, as the Integrity
Commissioner, or as in Alberta, where my colleague Mr Clark is
known as the Ethics Commissioner.(39)
The lesson for New South Wales and for other
Australian jurisdictions that focus primarily on conflicts of
interest is that this focus is too narrow and would need to be
broadened in time. Conflict of interest prohibitions are meant to
protect legislative judgement, as Dennis Thompson points out.(40)
Yet, legislative judgement can be compromised in many ways, apart
from conflict of financial interests. There is after all that
intricate web of friendships and relationships that involve the
giving and receiving of favours. Another example is those
legislators who zealously pursue the interests of special interest
groups and fail to place these interests in a wider social and
political context. Their actions tend to distort legislative
judgement, especially if they hold the balance of power.
Moreover, many of the actions that have
reflected adversely upon parliamentarians in recent times have not
involved conflicts of interest or the compromise of legislative
judgement. The travel rorts affair is one example. What this
indicates is that a narrow focus on conflicts of (financial)
interest is mistaken and that the focus must be on the wider issue
of behaviour. This will involve not merely adopting measures that
protect legislative judgement but measures that protect the
integrity of the institution, and the community's respect for
it.
Options for addressing the conduct of
parliamentarians
Misconduct matters in a democracy because all
democratic systems rely upon the probity of their leaders to
engender trust in the system by citizens, in order that the system
endure. The issue that faces Australia, and all the liberal
democracies is to adopt measures that will in fact reduce the
amount of actual and perceived misconduct. What options are
there?
The status quo
The first option is to do nothing. On this view,
the system at present is acceptable. It incorporates sufficient
checks and balances, such as the freedom of parliamentary debate,
accountability within the Houses of Parliament, collegiality,
estimates and other committees; and, ultimately, the most effective
sanction that a parliamentarian can face, the ballot box.
The problem is that, as history shows in this
country, the status quo does not provide an effective
answer. Parliamentarians are unwilling to find formally that their
colleagues, of whatever ilk, have acted improperly. They are
unwilling to impose sanctions when clear examples of misconduct
present themselves. Executives withhold documents and ministers
refuse to appear before committees, and in that way the
accountability process is thwarted. Political considerations often
trump community interests.
Further, the misconduct that occurred in
Queensland and Western Australia was perpetrated by people who
undermined the intricate system of checks and balances that must be
sustained if parliamentary democracy is to exist. Yet, they were
re-elected until their misconduct could no longer be hidden, but
after much damage was done. In fact, any action that led to
re-election, so long as it met the minimum standard of legality,
was often seen as a validation of the previous conduct.(41) This
argument also assumes that the electorate is presented not only
with sufficient information upon which to make an informed choice,
but options that are politically palatable, rather than a choice
between evils. The ballot box and the parliaments themselves were
unable effectively to hold accountable executives that dominated
the legislative and deliberative process, or individual
parliamentarians who failed in their public trust.
Moreover, a major problem with this system-the
etiquette system, as Atkinson and Mancuso(42) refer to it-is that
it assumes a consensus of opinion on prevailing standards in order
to ground the discipline of members. Such consensus is unlikely to
occur, and in fact does not appear to occur. This has been noted by
the New South Wales Standing Committee on Parliamentary Privilege
and Ethics, which referred to a number of pieces of empirical
research, which revealed a diversity of opinion over various
actions.(43) If there is some agreement concerning the values that
ought to apply, there may be disagreement over what those standards
mean and what behaviour is implied by them. A familiar example in
the Commonwealth arena is the dispute over the meaning of conflict
of interest and what sorts of actions are acceptable or not under
that banner.
Finally, simply saying that the status quo is
acceptable and that the people are mistaken, or that they do not
understand, fails to address the issue. The problem is that members
of the community appear to have good evidence-from their point of
view-that the system is allowing misconduct to flourish.
Ultimately, since the system of government in
our country depends upon the consent and a level of day to day
active support of the people, it is their attitude that matters.
Consequently, changes must be made in order that these attitudes
change. Measures must be adopted that will engender trust in the
system. Adhering to the status quo will not do that. In
other words, given that the present system is perceived to allow
unacceptable behaviour, as the polls referred to already indicate,
measures must be taken to restore confidence. Holding to the
status quo will not do that.
Public
sentiment
Related to the first response is the assertion
that public opinion will enforce acceptable behaviour upon
parliamentarians. While it is true, as Atkinson and Mancuso
suggest, that experience suggests that scandal is the most potent
proximate cause of change in regulatory systems...and scandal
creates a demand for reform that can seldom be completely assuaged
by polite assurances(44), it can only work when the scandals are
known and pursued. Such a regulatory system is one that responds to
scandal rather than being one that reduces the likelihood of it
occurring. To be sure, when the institutions of government have
been disabled so that they are unable to reveal misconduct by
politicians, or when the press is uninterested, partisan or cowed,
the public remain unaware and so public opinion cannot be
marshalled against parliamentarians who breach their public trust.
The events in Queensland and Western Australia demonstrate that
public opinion is, unless informed, an unreliable moderator or
deterrent of unacceptable behaviour. Although these governments
were ultimately rejected at the ballot box, that only occurred only
after much damage was done and after the public was provided with
the information. Consequently, citizens have good grounds to reject
reliance upon this approach, if present institutional arrangements
are to remain as they are.
Law
Perhaps the most obvious approach is
legislation. Laws would prescribe levels of appropriate behaviour
and proscribe certain acts. Some foreign jurisdictions have done
this(45) and within the Commonwealth, New South Wales proposes to
do so.(46) There are, however, dangers with this approach. Bribery,
corruption and conflict of interest, it is true, are relatively
easy to define and subsume under a law. The laws that have been
passed in various jurisdictions have been aimed at just these
improper activities. The actions that are of most concern, however,
when codes of conduct are advocated, are not only of this nature.
They involve exploitation of a loophole, ignoring the democratic
process, the creative reading of a rule, disputing that there is a
norm prohibiting some action, or that the norm means what it
appears to mean. Such actions may also have a large contextual
element; for example, actions that in one context may involve undue
influence may in another context be quite proper. As a result, it
may not be possible to write a law that removes enough of the
loopholes(47) to attain the goals set for it, while at the same
time being sensitive to context and also remaining workable. A law
that was sensitive to the features of a context would need to be
workable yet specific enough to proscribe the behaviour that is
unacceptable while distinguishing it from behaviour that is
acceptable. At the same time, in order for the law to be credible,
legislators would need to ensure that such a law is comprehensive;
in other words, that it addresses the full range of behaviour that
is unacceptable. The mechanism of law may thus not be a
sufficiently flexible or responsive mechanism to deal with the
sorts of behaviour that are most worrisome to the community.
Moreover, legislative approaches can tend to
create a mentality of evasion. This can be seen from the efforts
that are expended to evade the tax laws, through various creative
accounting schemes. Under such a mindset what is not specifically
proscribed is permissible, even if public opinion holds it to be
unacceptable, and it clearly falls outside the spirit of the
legislation. Loopholes are actively sought out and exploited. In
the political arena examples of unethical practices which are not
illegal, but against which it may well be impossible to pass
effective legislation, are push polling, channelling donations to
political parties through mechanisms that ensure that the donor
remains anonymous, and misleading the electorate which would
require, as a remedy, legislation that would prescribe truth in
political advertising.(48)
Further, in such a regime when a person is
prosecuted, the initial strategy is to submerge the investigation
in procedural litigation and other issues that are settled in the
courts. This has been the experience in the United States.(49) It
becomes a circus and pushes the system further into disrepute.
As well, the nature of law is coercive and
reactive. It seldom sets a standard to which people aspire because
the law embodies an attractive ethical ideal. Rather, the law
responds to actions that have been performed and seeks to punish
those who have transgressed and to deter others. It is for these
reasons that the law is no more capable of producing ethical action
than it is of preventing crime, when a person has a mind to act
criminally.
Perhaps the most important reason that
legislating to produce acceptable levels of behaviour is an
inappropriate strategy, is that it may not be constitutionally
possible. The reason is that much of the behaviour complained of
occurs as part of a parliamentarian's activities as a member of
parliament. For that reason it may not be possible to place it
within the jurisdiction of the courts. A recent Victorian case
illustrates this problem well. An application made to the Victorian
Supreme Court to declare vacant an Upper House seat because the
Member was working as a consultant to local councils. Acting in
this way, it was alleged, may have breached the State constitution.
The application was struck out because the judge found that the
court lacked the jurisdiction to hear and decide the case. The
judge said that under the long-established constitutional
relationship between parliament and the courts, control over MP's
standards of conduct and enforcement rested with parliament.(50)
Other actions over which the courts may have no jurisdiction, but
which clearly violate accepted norms of conduct include misleading
a House over personal assets, disclosure of which is required under
standing orders of the Senate and a resolution of the House of
Representatives(51), failing to declare or misrepresenting a
personal interest before or during a debate and vote, and excessive
(though not fraudulent) use or misuse of a travel allowance or
parliamentary entitlement, such as stationary or postage. It is
open to a member to argue that such actions were performed within
the context of his or her duties as a member. In this context, it
is difficult to see how a law could be written that respects the
autonomy that is needed by parliamentarians, and which is protected
by parliamentary privilege, while at the same time clearly
proscribing and applying sanctions to unacceptable actions.
Another pressing example of unacceptable
behaviour, from a democratic point of view, is the refusal on
occasion by the Executive to provide documents and other
information, or to appear in person before committees. In doing
this Executives fail to facilitate the democratic process by being
accountable. Or worse still it may involve manipulation of the
parliamentary process in order to thwart scrutiny of Executive
behaviour. Failure in this area has been the cause of the most
familiar cases of unacceptable behaviour in Australia in recent
times, namely, those which led to the WA Inc enquiry and the
Fitzgerald Inquiry in Queensland, amongst others. Any law that
would remedy this would open the very operation of parliament, and
thereby its autonomy, to the scrutiny of the courts. This would
erode the separation of powers and compromise the privileges of
parliament that are enshrined so clearly in the Commonwealth
Constitution. Rather than opening the system to scrutiny, it would
remove barriers that have been erected to prevent the
politicisation of the courts and the concentration and abuse of
power. Legislation, in this sort of case, is not merely counter
productive but possibly dangerous.
Further, in this particular case-the failure of
the Executive to facilitate accountability-the problem is
essentially political. Such executives are placing themselves
outside the system of responsible government that has been
guaranteed in the Constitution and which is in fact, an essential
element of any democratic system. A forum that lacks the
opportunities for procedural delay and which can deal with the
problem immediately is the best one to use. That forum is
parliament. It is more appropriate, then, that unacceptable
behaviour that is not readily and easily proscribed in law, be
examined and judged within the parliament. The problem, as is
demonstrated by both the travel rorts affair and the continuing
allegations concerning conflict of interest, is that of creating
within an environment apparently infused with self-interest and
opportunism, an impartial and disinterested mechanism to administer
a system that assures and promotes propriety. This will be
discussed below.
Legislation has another disadvantage. Farming
out discipline to the courts says in effect that the institution
cannot itself be trusted to monitor and deal with behaviour. The
result is that a clear message is sent to both the community and
parliamentarians that parliamentarians cannot be trusted. Yet,
there is convincing empirical evidence(52) that if people are
trusted and empowered to discipline those who fail to obey accepted
norms of behaviour, their behaviour will improve, creating more
trust and higher standards of behaviour. In other words, if the
people can see that the institution can deal with its members who
are accused of unacceptable behaviour, and that the institution
does so decisively and effectively, then trust in that institution
will increase.(53) And that, after all, is one goal of a discipline
process for parliamentarians.
Codes of ethics
Code of ethics and code of conduct are often
used interchangeably. There is, however, an important distinction.
A code of ethics identifies those ethical principles and values
that are regarded as the foundation of an organisation. They are
often expressions of the values of an organisation, within a
particular culture, time and place. Typically, codes of ethics will
embody ethical values that are cross cultural, such as justice,
fairness and impartiality. Such codes are usually aspirational,
rather than prescriptive, and they do not often have implementation
and enforcement mechanisms.(54)
While codes of ethics can be useful in defining
the values of an organisation, they will have little effect unless
there are appropriate compliance mechanisms in place.(55) This
points to the difficulty in using only a code of ethics:
at the heart of a code of ethics is an
indeterminacy or vagueness concerning the sorts of actions
prescribed and proscribed. Different people possess different
interpretations of the ethical values set out in a code, and the
sorts of actions that naturally flow from observing those values.
Codes of ethics, if used as the sole measure of ethical guidance
and without supporting institutional arrangements, such as
compliance committees, leave too much to discretion. Rather than
being an antidote to misbehaviour, they can in fact be a recipe for
abuse.(56)
In a parliamentary environment in which there is
not merely intense competition between the different parties, but
within each party, such discretion can amount to a licence for the
ruthless and unscrupulous to act however they choose in order to
promote their particular interests.
Codes of
conduct
Codes of conduct specify certain rules for
behaviour, or standards to which a person's behaviour must
comply.(57) They are more specific than a code of ethics, in terms
of the actions prescribed and proscribed. They leave less to
discretion; they are less aspirational and more prescriptive.
Further, codes of conduct are usually more focused on the core
functions of the organisation, rather than general ethical ideals
that any decent person ought to abide by, as a matter of course.
Whereas a code of ethics may exhort a person to always treat those
with whom you deal justly, a code of conduct may enjoin a person to
always listen to both sides of the case and never be a judge in
your own case, which is a specific prescription for just
action.
The major problems with codes of conduct-and
ones that they share with codes of ethics-are designing and
implementing them. This has been the experience in the private
sector.(58) Nevertheless, if they are properly designed and
implemented they can make a difference to the behaviour of
individuals within an organisation.(59)
The purposes
of a code of conduct
To the Commission it seems inescapable that if
the system of elected government is to work effectively, the
ethical standards of elected officials need to be declared
publicly, and a continuing effective process for disciplining
breaches of those standards needs to be developed and
implemented.
Recourse to the ballot-box every two or three
years has been shown to be largely ineffective as a process for
achieving such discipline.(60)
Codes of conduct will not by themselves create
honesty or integrity, or stop members from betraying their public
trust, if they have a mind to do so.(61) However, proponents of
codes of conduct have not claimed that this is a code's chief
virtue. The chief virtues of codes of conduct are that they specify
certain sorts of behaviour and proscribe others.(62) To do this
codes must be implemented. Codes of conduct are then an essential
element in a program the aim of which is to raise the standards and
perceived standards of conduct of elected officials, by proscribing
and prescribing behaviour as well as setting goals to aspire
towards. Codes are not merely cudgels. They are lights. Other
elements in a program aimed to improve the standards of behaviour
are education, counselling, guidance, enforcement, various
institutional reforms and the strengthened committee system.
What role do codes of conduct have within this
broader program? Codes of conduct have two purposes, one that is
public and another that is institutional. Institutionally, the
purpose of a code of conduct for parliamentarians is to guide
behaviour. This must include behaviour not only within the House or
Chamber, but behaviour outside and, more amorphously, the
relationships a parliamentarian may have that are not, at the time,
ready public property. Moreover, the parliamentarian may not be
aware that there are standards of behaviour that are relevant.
An example of a lack of awareness of relevant
norms and the way relationships outside the Houses of Parliament
may affect the public perception of propriety are the myriad of
relationships that former Senator Graham Richardson enjoyed. This
case is interesting also because for Richardson the end was more
important than the means. As a result, he effectively operated in a
realm where, in his view, there were few accepted norms of
behaviour. Richardson's lack of clear and unambiguous moral
guideposts has been detailed not only by Richardson himself(63),
but also by Marian Wilkinson, who made this assessment:
Throughout Graham Richardson's twenty-three
years in political life, from his first days as a young party
organiser at Sussex Street, right through to his last days in the
cabinet room, he never learnt the finer points of ethical
behaviour. He always traded in favours, mateship and deals. There
was very little in his world that was black and white but there was
a lot of grey. And it was in the grey areas, between the blurred
lines of right and wrong, that Graham Richardson had always
operated, both personally and politically.(64)
It is important to note, however, the way in
which codes guide conduct. Codes provide a rationale for action and
they can operate either consciously or, over time, become second
nature. So while it is true that, as Mr Gregory Evans, Integrity
Commissioner in Ontario has observed(65).
No administrative rules or codes of conduct are
required to monitor the conduct of an honourable member, nor will
they restrict the misbehaviour of the member who lacks the
requisite moral integrity... ,
codes can provide the foundation for the
development of responsible and honourable action, a basis for
developing the skills and patterns of behaviour necessary for
honourable public life.
Moreover, if implemented-and by that is meant,
publicised and enforced-codes of conduct have other institutional
roles. They can function as the foundation upon which an
organisation can justify disciplining errant members and even
remove them. As well, codes can act also as a catalyst for the
socialisation of organisational members, and as a means of reducing
uncertainty about what is acceptable and unacceptable. Also, codes
can act as a medium for the communication of values and standards
and as a starting point for discussions about acceptable and
unacceptable behaviour. In this way, codes of conduct (and if
properly implemented and defined, codes of ethics too) can promote
the skills needed for ethical analysis, sensitise organisational
members to the values implicit in their activities, and in general,
promote moral development. These goals are attained, however, not
as a direct result of a specific purpose, but indirectly, as a
welcome and desirable consequence that results from people aiming
for and attaining other goals.
A public purpose of a code of conduct is to
function as a public criterion that can be used to judge acceptable
and unacceptable actions. The code may be used by the community to
assess the actions of organisational members or by institutional
members to examine the behaviour of colleagues, or by the members
reflecting upon their own actions. To be sure, if there is a
public, accepted benchmark against which the public and
parliamentary colleagues can measure behaviour, inside and outside
the Chamber or House, then those accused of impropriety are unable
to retreat into a form of political relativism. 'Well, the people
I know don't think that is improper....' It is a response
that is not open to them.
Another public purpose is to promote trust in
the institution of parliament and in parliamentarians themselves.
The idea is that if people know the standards, and apply them, and
if parliamentarians know the standards, live by them and apply
them, then trust in the system will be enhanced and promoted.
What
would a code of conduct look like?
What properties does a well-drafted code of
conduct have? American philosopher of law, Lon Fuller considered
this question with respect to law. Fuller provided one of the most
influential-and plausible-answers. It is an answer that is also
applicable to codes of conduct. In Fuller's view:
... there can be no rational ground for
asserting that a man [sic] can have a moral obligation to obey a
legal rule that does not exist, or is kept secret from him, or that
came into existence only after he acted, or was unintelligible or
was contradicted by another rule of the same system, or commanded
the impossible, or changed every minute. It may not be impossible
for a man [sic] to obey a rule that is disregarded by those charged
with its administration, but at some point obedience becomes futile
as futile, in fact, as casting a vote that will never be
counted.(66)
According to Fuller, a legal system or any
system of rules or prescriptions that would guide behaviour and set
standards for acceptable and unacceptable conduct (such as a code
of conduct or a system of laws) must meet eight necessary criteria,
if that system is to be workable.(67) The eight are:
-
- there must be rules or laws that ground evaluation of
action rather than ad hoc evaluation
-
- the rules must be publicised
-
- the rules cannot be made retroactively
-
- the rules must be understandable
-
- the rules should not be contradictory
-
- the rules must be within the power of the citizens to obey
them
-
- the rules must maintain a degree of stability through
time
-
- the rules as announced must be in agreement with their
actual administration.
Fuller claims that a total failure in any
one of these eight criteria does not simply result in a bad legal
system. He claims that it results in something that is not properly
called a legal system at all, except perhaps in the Pickwickian
sense in which a void contract can still be said to be some kind of
contract.(68) Fuller's point is that what makes a putative legal
system a genuine legal system is the capacity of the putative
system to fulfil the purpose that legal systems have in societies.
The proximate purpose of the legal system is to subject human
conduct to the governance of rules in order to procure the ultimate
purpose of promoting human wellbeing and flourishing. A total
failure in any one of these desiderata will result in there not
being general rules that can be used to regulate human conduct;
consequently, the proximate and ultimate purposes will be prevented
from being realised. In virtue of this, the system will fail to be
a legal system. Similarly, a putative code of conduct would fail to
be a code of conduct, since it would fail to embody in a useful
manner the norms of the organisation that are used to guide,
regulate and evaluate action in order to promote, ultimately, the
flourishing and wellbeing of the organisation's stakeholders. It
would be unable to fulfil its purpose and would for this reason
fail to be a code of conduct. The point is that in order for a code
of conduct to be effective it must satisfy Fuller's eight
criteria.
Effective codes must not meet only Fuller's
eight criteria, however. A further difficulty faced when
implementing a code of conduct for parliamentarians is that in
order for the public to accept that the code will be, and is,
effective and for parliamentarians to accept that the code is
administered impartially and thereby have reason to support it, a
code must be administered independently and transparently of the
political context in which it operates.(69) All these
considerations suggest a number of desiderata, in addition to
Fuller's eight, that will guide not only the content of a code for
parliamentarians but the manner of its implementation. Reflecting
upon this question, it seems that there are twelve conditions that
a code designed for parliamentarians should satisfy if it is to be
effective. A code should aim to:
-
- foster trust, in parliament, parliamentarians and the
system of parliamentary democracy
-
- promote the functioning of parliament
-
- respect the operation and status of parliament as an
institution
-
- be capable of being honoured, and in fact, actually
work
-
- refocus public attention from the conduct of
parliamentarians and their ethics and place it on policy and
deliberation
-
- avoid litigation about powers of the code and
interpretation
-
- improve parliament's position as the creator of law and as
a check on the executive
-
- be open yet allow for the protection of privacy
-
- allow for knowledge and acceptance of the code by
parliamentarians and citizens
-
- have stable, fair, public enforcement mechanisms
-
- fit within an existing culture of discipline
mechanisms
-
- be, and be seen to be, impartially administered.
While these criteria may seem to make the
formulation of a code a complex undertaking, they are, in effect,
relatively easy to meet. Publicising the code is not difficult, as
the press would, in the current climate seize upon it. The
criterion of impartial administration suggests an independent body,
as does the desideratum that seeks to enhance trust in parliament
and its pre-eminent position as a creator of law and an institution
by which those who exercise executive power are held accountable.
When codes such as the one adopted in the United Kingdom [see
appendix 3] or that proposed federally in Canada [see appendix 4]
are examined, it can be seen that the criteria outlined here are
addressed. The criteria are determined by the nature that codes
must have, given the purpose they must serve. Since the purpose is
similar in Canada and the United Kingdom-and in Australia, for that
matter-the criteria will be the same and as a result the code will
be similar.
Implementation mechanisms for codes of
conduct
Three diverging approaches to
institutionalising codes of conduct are apparent in comparable
democracies. One approach involves enshrining the code in some sort
of legislative framework through, for example, establishing by
legislation a body that is external to, and independent from, the
legislature. Such a body administers the code, oversees the conduct
of the members of the legislature and makes reports either to the
legislature or a committee. This is the model that has been adopted
in Alberta(70), and Ontario.(71) It is likely to be adopted in a
much more stringent form in New South Wales(72), where breach of
the code would constitute a breach of law. Actual enforcement may
well be a duty of the Independent Commission Against Corruption,
rather than the Parliament or a Committee of it, as is the case in
the Canadian parliaments.(73)
The second approach is to establish within
the legislature a body that oversees the conduct of members. This
may take the form of a parliamentary committee or it may take the
form of an independent parliamentary commissioner, established
under standing orders or a resolution of the House (rather than
independent, judicable legislation). Such a body would report to a
committee of the legislature or the legislature itself. This is the
approach that has been adopted in the United Kingdom.(74) It also
has been proposed for the federal legislature in
Canada.(75)
The third option is that followed in the
United States Congress. In this approach, discipline is internal to
the legislature and is based upon a detailed set of rules and
guidelines. Each House has its own Code of Official Conduct for
Members and staff. Each House has an ethics committee, which
operates independently of the other. Each committee provides
interpretative and advisory rulings, has jurisdiction over the
members and officers of each House, and can investigate allegations
of improper conduct and can impose sanctions. There is considerable
detail in the codes and rules. For example the Gift Rule, adopted
on 7 December 1995, was accompanied by a ten page explanatory
memorandum, which set out numerous, finely-distinguished situations
in which gifts were or were not permitted. The House Ethics Manual,
which is a compendium of rules and interpretative guidelines for
members and officers of the House of Representatives, runs to some
500 pages.(76)
The question that faces Australia is, if a
code of conduct is adopted, which implementation model ought to be
adopted? For the Commonwealth the legislative option may well be
impossible. The legislative option weakens the separation of
powers. Yet this doctrine is a hallmark of the Constitution of the
Commonwealth and a code that weakens the separation of powers may
well be vulnerable on that count, even to the extent of being
unconstitutional. Moreover, the legislative option opens the way
for litigation and delaying proceedings in the courts on points of
procedure and interpretation. This in turn thwarts the code and
reduces public confidence in the code and the process.
Finally, a code that is administered
externally to the institution leaves little opportunity for
ownership on the part of the people who are to be subject to it. It
would be something outside the culture of the institution. Such a
code violates one of the criteria set out in the last section. What
is known about codes of conduct, from the business and professional
sectors, is that they must emerge from within the culture of the
organisation and reflect its defining values if the code is to have
acceptance and effect.(77) These considerations, then, point to a
code of conduct that is internal to the parliamentary
institution.
Of the three options detailed above, two
used codes that operate within the legislature. The model used in
the United States Congress-a self-regulatory model-has been the
subject of considerable criticism. This has been summed up by
Meredith Burgmann MLA, in her address to the 1997 Study of
Parliament Group Conference on Codes of Conduct for
Parliamentarians:
I have several reservations about
the...catch and kill your own approach. Firstly, I have not
encountered any version of the parliamentary committee model which
gets around the problem of the process of advising and adjudicating
on the code of conduct becoming politicised, and the consequent
problem of the public losing confidence in that process. This
appears to be what is occurring with the ethics committees of the
US Congress. Secondly, where allegations of breaches of the code
require investigation, particularly investigation in delicate
matters, it seems to me that a committee of MPs is a fairly blunt
and therefore unsuitable instrument to use. Finally, I am concerned
that under this model the members of the Committee, and
particularly the Chair, are cast in the role of police persons of
the Parliament.(78)
The latter comment, that a wholly internal
mechanism casts the members of the committee as police persons,
speaks to another criticism of this approach. The Congressional
approach turns the legislators into investigators, judges and
juries, rather than maintaining them as a body which ratifies a
judgement reached by an impartial investigator and adjudicator. No
person likes having to pass judgement upon colleagues and friends.
Moreover, it may lead to a perception and the possibility that
natural justice has been denied. The Congressional approach tends
to erode the sense of collegiality and trust that is required on
all sides in order that parliamentary business can proceed. One
result of this has been noted by Dennis Thompson in his study of
ethics and public office. Thompson wrote that in the US
Congress:
Most legislators assiduously strive to avoid
service on the Senate Ethics Committee and the House Committee on
Standards of Official Conduct. Legislators rarely report
improprieties of their colleagues or even of the members of their
colleague's staffs, and they even more rarely criticise colleagues
in public for neglecting their legislative duties.(79)
In brief:
-
- self-regulation appears to have little credibility with the
public
-
- committees can be partisan, as the David Lloyd George case
from the UK shows, and the evidence from the United States
indicates that they regularly divide along party lines
-
- there is a reluctance to serve on conduct committees
because it is time consuming and thankless
-
- roles that are best kept distinct-investigation,
adjudication, imposing sanctions, are intermingled leading to a
perception or a possibility that natural justice may not be
done.
-
The option remaining is to place the code
and its administration within the internal workings of parliament.
What are the arguments for this approach? The chief arguments are
that this approach provides codes with a status within parliament
that adds to their credibility both publicly and within the
institution itself. It eliminates the possibility for litigation,
while enabling codes of conduct to be administered impartially.
Overall, such an approach increases the code's status and
effectiveness. It is an approach most likely to meet the criteria
mentioned earlier.
To be sure, in order that all members fall
within the jurisdiction of the code, and breaches of the code could
leave a parliamentarian subject to disciplinary proceedings the
code needs to part of standing orders or established under a
resolution of the House. Having this status also provides the code
with stability, but with the possibility of being altered. It also
makes it internal to the institution, something that has been
devised by the members of the institution and so owned by them. It
is part of a stable culture of enforcement mechanisms.
Moreover, placing such a code within
standing orders or a House resolution avoids the problem faced by
an external code; a weakening of the separation of powers and
creating an invitation to litigation. In addition, through being
part of standing orders or created by a resolution of the House,
and with the right content, the code would actually enhance the
functioning and status of parliament, since it would be seen as
something parliament was doing to put its own house in
order.
Who would administer the code? In the model
adopted in the United Kingdom, the code is administered by a
Parliamentary Commissioner for Standards, whose position is created
and defined within the Standing Orders of the House of Commons.(80)
The code is enforced by the Committee on Standards and Privileges,
which is also created under Standing Orders.(81) The Commissioner
has the duty to maintain the Register of Members' interests, advise
members, confidentially, on registration matters, advise the
Committee on Standards and Privileges on the interpretation of the
code of conduct and on matters of propriety, monitor the operation
of the code and the register; and finally, receive and, if
appropriate, investigate complaints concerning the register and the
code, from parliamentarians and members of the public. The
Commissioner cannot impose penalties, that is left for the
consideration of the Committee on Standards and Privileges. An
important point is that all members are equally subject to the
Commissioner's investigative powers.
This model, where administration of a code
of conduct is separated and assigned to one officer of parliament
and enforcement to a committee is also the model, in broad terms,
proposed in Canada.(82) The major difference is that in the House
of Commons system the Commissioner reports to the House of Commons
Committee on Standards and Privileges. In contrast, the
Jurisconsult at the Federal level in Canada, as it is proposed that
the investigating officer will be known, would report to a Joint
Committee on Official Conduct. When the Jurisconsult determined
that a prima facie case existed that warranted further
investigation and determination by the Joint Committee. The
Jurisconsult can also reach an agreement with a member as to an
appropriate remedy when a breach of the code has been found. In
both cases, final investigation and determination of the matter,
including the imposition of sanctions, remains with the
Committee.
Such models have much to recommend them.
Investigation can be carried out by an impartial officer of the
parliament, which engenders trust in the system by both the public
and parliamentarians. Frivolous or politically motivated complaints
can be disposed of while complaints that have merit can be
investigated. Privacy can be assured in appropriate cases, yet
wrongdoing exposed. The responsibility for a penalty or a response
to a finding rests with the members of the institution. (For a
model of the procedure to be followed when a complaint is made, and
appeals against the determination, see appendix 6.)
The process could be strengthened further if
all misconduct was considered a breach of privilege, as a number of
inquiries have suggested should be the case.(83) This would embed
the code in an existing disciplinary and regulatory structure while
at the same time according the code a relevant level of
institutional recognition. In addition, the system could be
strengthened still further if both the Commissioner and the
committee were empowered to send, as the House of Commons and the
proposed Canadian committee are, for persons, papers and documents.
Again, such measures would add credibility to a decision, both in
the public perception of the process and in the way that
parliamentarians perceive it.
The major flaw in the House of Commons
approach and the proposed Canadian scheme is that the parliamentary
committee could reject the Commissioner's findings for partisan
reasons. Such a committee finding would fan the suspicions that are
so corrosive of trust in the parliamentary institutions. And we
have seen in recent years in Australia that such adverse results do
not seem to bother political leaders. For example, successive Prime
Ministers have been quite willing to tough out adverse public
opinion even though a ministerial colleague has breached a code of
conduct or other accepted norms of behaviour.
The solution is to provide the committee
which oversees the operation of the Commissioner (or Jurisconsult)
with power only to ratify a report or reject it but only on
procedural grounds or because salient evidence has not been
properly considered. In effect, the committee operates as an appeal
body, charged with ensuring that procedural guarantees and natural
justice have been observed. Such an approach would require that the
committee specify where the Commissioner has gone wrong, and
require him or her to remedy it. The effectiveness of this process
can be further enhanced if all actors in the process operate to
stipulated time constraints that ensure the reports and reasons for
decisions make their way into the public domain as quickly as
possible. This sort of approach not only enhances the impartiality
of the process in the eyes of parliamentarians, but also in the
community. Discipline is no longer a matter of parliamentarians
looking after their own.
Are
codes effective?
The conflict of interest legislation that
has resulted in British Columbia-and I believe elsewhere in
Canada-has been substantially successful in accomplishing what was
expected of it by those legislators who enacted it. Therefore,
insofar as matters of conflict of interest are concerned, I
advocate the continuance of it the way it is, with the requirements
as they are, particularly with the availability of
enforcement.(84)
So far, this paper has been concerned to
outline the problems and issues surrounding codes of conduct for
parliamentarians. In this section the approach changes and the
adoption and implementation of a code of conduct is explicitly
advocated.
Of all the options available for improving
the behaviour of parliamentarians, developing and adopting a code
of conduct is the most attractive option. The resulting regulatory
regime would see a patchwork of measures, involving the
Constitution, the criminal law, standing orders and resolutions of
the Houses (concerning the declaration of interests) and an
enforced code of conduct, as the hallmarks of the system. The issue
that arises is whether, given the nature of the parliament, codes
of conduct would be effective or practicable.
Arguments against the practicability of
codes of conduct for parliamentarians centre on the fact that codes
of conduct are inappropriate, given the nature of parliament as an
institution. Codes of conduct were originally developed for the
professions. Professions are defined and bound together by a
widely-shared ethos and a single outlook the practice that forms
the identifying feature of the profession. In terms of the values
of their members, professions are characterised by the fact that
the members share a large number of values and subscribe to
criteria for judging proper and improper, acceptable and
unacceptable conduct.
In contrast, because parliament is composed
of representatives of the community and the community itself
possesses and displays normative diversity, parliament contains a
diversity of moral outlooks. Attempting to agree on a shared set of
values to be embodied in a code of conduct would be impossible.
Since it would be unlikely that there could be agreement concerning
the content of a code, or if one was agreed, compliance with it,
seeking to develop a code of conduct for parliamentarians is
impracticable.
Related to this is another criticism.(85)
Parliamentary representation requires that parliamentarians retain
some measure of independence. Parliamentarians in the Australian
system of government are, to some extent, representatives and
trustees rather than delegates. Being a trustee and representative
involves the community conferring upon a person a mandate to decide
matters on the evidence before them, while the representative, for
his or her part, accepts a large amount of autonomy in order that
decision-making can be exercised. Being a delegate, in contrast, is
behaving in ways in which the community directs the delegate.
Delegates are sent with instructions and orders to realise the
preferences of their community. Representatives and trustees are
assumed to possess, and are directed to exercise their best
judgement.(86) Codes of conduct may be inconsistent with the
representative and trustee account of democracy. It seems that
codes leave little room for independence, since they constrain
conduct. The nature of parliament as an institution when it is
based on a representative and trustee model appears to be
incompatible with a code of conduct.
These criticisms are mistaken. The function
of parliament, as an institution, is to act as a public forum in
which issues of public importance are aired and decisions are taken
as to what course of action should be followed; and having decided,
hold accountable those who are entrusted with implementing those
decisions. Typically, those decisions take the form of legislation.
On this view, the purpose of parliament in a democratic system is
to represent, deliberate, investigate, legislate, and, importantly,
hold accountable those who have been entrusted either directly or
indirectly, with executive power.
The values that inform parliamentary life
flow from the nature of the institution itself within a democratic
system. They will be those values that both protect and promote the
work of the institution so that it may carry out the function that
it has in community affairs. Through reflecting on the nature of
parliament, and discussing the role that it plays in civic life, it
is possible to determine the elements that a code of conduct must
have. In general, any code must respect and promote the place that
the institution has in civic life, promote the functioning of
parliament and the realisation of the democratic process. This is
why the codes presented in the appendixes possess so many similar
features. Far from undermining the representative and trustee
nature of parliamentary life, or being themselves undermined by a
diversity of values, codes may contribute to the fortification of
the representative ideal and encourage the development of a
consensus on the role of parliament in civic life.
Other criticisms that are raised concern the
appropriateness and effectiveness of a code of conduct. Standing
orders, resolutions and laws already prescribe behaviour. In this
light, it may be argued that any further imposition on
parliamentarians is unwarranted; nothing more can be done without
doing damage of some sort. Moreover, unless a code has sanctions
and it is implemented, it would be seen as a ploy to conceal
unacceptable behaviour; or it would be seen by the public only as
window-dressing, and reduce further the already low esteem in which
parliamentarians as a class, and the institution itself, are held.
Since it would be unlikely that any code would be implemented in a
way that was credible, adopting a code would be likely to diminish
still further the already low opinion in which parliamentarians and
the institution are held.
These criticisms are misguided. As mentioned
earlier, it is the public that is the judge of the existing system.
As opinion polls suggest, the public is of the view that the
present system is not effective. The allegations that some
parliamentarians have abused travel entitlements are a recent
example. Moreover, several inquiries have made specific
recommendations that codes of conduct are required.(87) The burden,
then, is on parliamentarians to counter this perception and the
findings of these inquiries. Simply saying, 'oh, anything more is
unwarranted'...fails to address the issue. People need to be
reassured that codes of conduct are unwarranted.
Arguing that codes should be avoided because
they will never be implemented or enforced is to concede the point
that is at issue; that parliament is incapable of regulating
itself. It is to concede that the public's perception is correct.
So the conclusion is that codes are needed in order to prove the
sceptics wrong; and if they are to be effective, and are to avoid
being classed as window-dressing or ploys to avoid responsibility,
or if they are to avoid reducing still further the reputation of
parliamentarians and parliament, then codes will need to be
enforced and sanctions imposed upon those who violate them.(88)
Imposing sanctions will not be the first option, education is
usually the first appropriate response. But the possibility must
exist if the code is to be taken seriously by both those who must
obey it and those whose trust it is intended to garner.
Another objection to a code of conduct is
that it would be misused. For example, it would be used in the
hurly-burly of political life to smear opponents; or it may be used
by the press to berate parliamentarians for peccadilloes when no
other news was available. Or it may have unintended and unforseen
consequences.
Any law may suffer these problems.
Nevertheless that does not induce the community to abandon the
making of laws. Moreover, in politics people know that what goes
around comes around, meaning that the misuse of a code to smear
opponents may well backfire, not only through political opponents
waiting to return the gesture, but the public seeing through the
stratagem.(89) The same considerations apply to the press. All
players in such a game should ensure that they do not live in glass
houses.
Finally, the best defence to the misuse of a
code of conduct is openness and candour. The best way to achieve
that is through a public investigation of the complaints by an
impartial body. If the people can see that the complaint is
baseless then not only will there be confidence in the code but in
the individual accused. Two examples of this approach have been
provided by Robert C. Clark, Ethics Commissioner of
Alberta:
Under the legislation, a member can ask the
commissioner to do an investigation of that member's actions or of
another member's actions. In a particular case one of the ministers
in the Alberta government asked me to do an investigation of
allegations that centred on that minister. It dealt with the sale
of shares in Syncrude Canada Limited. There were stories in the
media that the minister had used her influence to give inside
information to a company that had acquired shares in Syncrude. The
minister's brother was the president of the company that had
acquired the shares. The minister asked for an investigation. The
investigation was done within a week. I was able to report to the
Assembly that not only had the minister not taken part in that
matter or breached the act in any way, but the member had gone
further than was necessary under the act.
The important thing for members to have
understood on that occasion was that the investigation and report
immediately stopped the story. It was no longer a news item. I do
not think there has been any public discussion of the matter
since.
Within the last year we had a situation
where a member from the opposition came to us and said, quite
frankly, that he had breached the act. He was a very small
businessman. His company, of which he was a direct associate, had
done some for work for Public Works. The member came to me and
asked me to do an investigation. That was done. The member had been
very forthright, very upfront about it. The member ended up paying
back the profit he had made on the project to Public Works. The
report went to the House. I indicated that he had breached the act
but certainly I could see no intent. I recommended there be no
sanctions.
The bottom line was that there was one story
in the media in Alberta as far as that member was concerned. I
think it served to show that in fact this individual was an
honourable member.(90)
The conclusion, then, is that misuse is
hardly an excuse to avoid adopting a code, since there are means by
which misuse can be avoided and, indeed, used to disarm critics.
From these examples, the conclusion to be drawn is that the
benefits of a code of conduct and appropriate implementing
mechanisms, for the various governments in Australia are clear. Had
the Commonwealth Parliament a commissioner of conduct then the
various allegations of impropriety made against members from all
sides over the past year and a half, could have been speedily and
openly dealt with. There would have been a means whereby
allegations of over payments of travel allowance or conflict of
interest could have been examined and a resolution presented to the
Parliament. The community would not have been presented with the
spectacle of parliamentarians splitting hairs, defending the
indefensible and apparently, from the public's perspective,
indulging in all the behaviour that is found so contemptuous and
damaging to the dignity and integrity of parliamentarians and the
institution of Parliament itself.
Why is
actual and perceived misconduct an issue in a democratic
society?
...nothing is more dangerous to the
wellbeing of the body-politic than a public official who is
technically competent or strategically astute but ethically
illiterate or unfit.(91)
Concerns about the propriety of public
officials, whether elected or unelected is, it seems, something of
a perennial concern in the Western democratic tradition. The
Athenian statesmen Aristides and Themistocles had the propriety of
their actions questioned.(92) And Plato(93) and Aristotle(94) in
their most famous works, examine the problem of how lawmakers can
be made virtuous and the state good. Few things change.
If it is true, however, that contemporary
parliamentarians are no worse ethically than their predecessors,
and that the present focus on ethics is little more than a media
beat up then we may be tempted to conclude that there is no great
problem to address. We could even take this one step further and
argue that the system is designed so that individual virtue or vice
is beside the point. This is in effect the approach of James
Madison, one of the founding fathers of the United States. Madison
believed that is was not possible to control the behaviour of
individuals and in that way mitigate the corrupting effects of
factionalist politics and so reduce the capacity of such behaviour
to pervert the system of government. Any remedy, he believed, would
be worse than the disease. Instead, Madison's solution was to
control the worst effects of factional politics by making it
virtually impossible for any particular political group to gain
control of the entire system of government.(95) In such a system,
whether or not an official is ethical or corrupt is not important.
The system is so designed as to prevent such people seizing control
of the entire system or more specifically, that person's influence
defeating the public good.
We know that the Madisonian approach, of
relying upon the established institutions of government, does not
work. The ballot box does not always remove people who would
systematically corrupt institutions.(96) It fails to function as a
reliable mechanism to impose ongoing acceptable conduct on members
of parliament, since information can be concealed and votes can be
bought. Nor does the ballot box work quickly. As a result people
who would subvert the system of government can often do great
damage to the institutions of government-damage that may persist
for decades. We only need recall the systematic corruption of the
institutions of state that occurred in Queensland over many years,
and the perversion of the system of government that occurred in
Western Australia in just a few years. Miscreants in the
parliaments of those states were successful, for a period of time
at least, at surviving the ballot box, until disclosure of their
misdeeds did enable this check on the abuse of power to function.
The conclusion is that some direct control over the behaviour of
parliamentarians is required, in order that remedies to
unacceptable behaviour can be attained quickly and
reliably.
Yet, Madison could reply, had the
institutions of government been strong enough, the misconduct of
the politicians in Western Australia and Queensland would have been
unimportant. The problem is that the effective functioning of the
mechanisms of deliberative democracy rests ultimately upon the
strength of character of individuals and those individuals
possessing appropriate values. Institutions cannot garner strength
of character or appropriate values; they merely provide an outlet
for such things. Strength of character and appropriate values must
reside within individuals. And codes of conduct and their
accompanying implementation processes are an element in a person
developing such values and cultivating such a character. Citizens
understand this well. According to many ordinary citizens, it is
not only important that an official does his or her job, but that
they are virtuous too. Citizens understand that in the end it is
virtue which ensures that the institutions of democratic governance
will function effectively, well and in the public interest. This is
one reason why the ethical behaviour of our representatives is so
central a concern to us, as it was to the Athenians. There are
however, other reasons. First, unethical behaviour weakens the
psychological basis of the democratic system. At the heart of the
democratic system is trust. The electors, who after all are the
constituent members of a political community bound together by
shared values, entrust the management of their affairs to a small
group who are themselves members of that community. The trust is
that those placed in positions of responsibility can be relied
upon, without direct, day to day supervision, to advance and
protect the common good.
On this view, democratic systems depend upon
their citizens possessing a particular attitude towards those whom
they have selected to manage the community's affairs. Now, it is a
feature of trusting others that we do not trust people whom we
believe to be unreliable or otherwise suspect. The point about
unethical behaviour is that it gives us good grounds to suspect
that another person is unreliable. As a result, citizens are then
no longer in a position to know whether those they have placed in
positions of responsibility are in fact promoting and protecting
the common good. Consequently, improper conduct, or behaviour that
is perceived to be unethical, weakens the very bond upon which the
democratic system rests.
This has a number of consequences. If a
person cannot be trusted to discharge his or her responsibilities,
then citizens will look to other means to protect their own and
what they perceive as their common, interests. There may be
agitation for laws or for registers of public interest. In
addition, other means will be found to influence that person's
decision-making apart from the usual methods, such as submissions,
meetings, inquiries and so on, all of which involve rational
persuasion. For example, people may abandon the democratic
decision-making process for various forms of direct, but largely
non-transparent and non-public, pressure upon those who hold power.
As a result, the democratic system will be
compromised.(97)
Moreover, unlike authoritarian and
totalitarian systems which by definition rely upon the threat or
exercise of various forms of compulsion to secure compliance from
their members, democratic systems have no such option. They can
rely only upon the commitment of their members to democratic
ideals. They depend for their continued existence not merely on the
consent of the people, but some minimum level of ongoing, active
support. This support is generated through citizens feeling engaged
with the polity, and through feeling membership of it. The people
must believe in the system; and it is this belief that enables the
democratic institutions to prosper and endure.
A ready gauge of such support for the system
can be seen in those jurisdictions which have voluntary turnout for
elections. In the United States, turnout for presidential elections
is usually around 50 per cent of eligible voters, and in the last
presidential election in 1996 turnout was just 49 per cent.(98) In
the 1996 elections for the Japanese Diet, almost 58 per cent of
eligible voters turned out to vote.(99) Low levels of turnout are
reflected in all other voluntary turnout jurisdictions. Low and
declining turnout is associated with alienation from the political
system, falling support for the ideals of democracy, and attitudes
about the irrelevance of the system to the lives of individuals,
something that is often influenced by socio-economic factors.(100)
In contrast, although Australia has compulsory turnout laws and
turnout has not fallen below 90 per cent of eligible voters since
the 1925 Federal election, the first held under such laws(101),
opinion polls taken in 1996 and 1997 reveal that about 70 per cent
of electors favour compulsory turnout, while only about a quarter
favour voluntary turnout.(102) The important point is that this
indicates a high level of concern and interest in the political
system, rather than alienation. Voters believe that citizens ought
to be involved and participation in the political system is still
of such immediate value that they are willing to support a law that
ensures high levels of turnout. One conclusion to be drawn is that
in Australia, the level of engagement with the political system is,
to some extent, attributable to the requirement to turn out to
vote, though it must be added that in 1995 a majority of electors
indicated they had lost faith in the political system.(103)
Compulsory turnout has to some extent reduced the alienating effect
of perceived and actual misconduct, perhaps even stimulating the
growth of new political parties. In contrast, in those
jurisdictions in which turnout is voluntary, and which also suffer
their share of misconduct scandals, there is an increasing level of
alienation and falling support for the system of democratic
governance, which is manifested in the declining levels of turnout,
in addition to a lack of faith in the system.
The consequences of this loss of faith and
alienation can be clearly seen. Unethical behaviour, both perceived
and actual, induces citizens to believe that the system is
incapable of operating in a way that protects and promotes the
public interest, rather than, as many people perceive it, serving
the interests of those at the top and their friends.(104) Citizens
become alienated from the very processes that empower them. They
become cynical about these processes and the system itself becomes
moribund. Unethical behaviour is a form of social rust. It
gradually corrodes the fabric of the political community; that is,
the beliefs and attachments, the engagement and membership that
each member of a democratic community must feel if the system is to
endure.
Furthermore, improper behaviour in public
life is a concern in a democratic society because it betrays the
essentially moral relationship that exists between the people and
their representatives, one that should guide the choices that
elected representatives make.(105) Again, to draw on Mr Evans'
experience,
...when a person is elected or appointed to
public office, that person becomes a trustee for the interests of
others, and their interests may conflict with the private interests
of the Member. When that situation arises, the ethical member will
resolve it in a manner favourable to the public interest, not
because there is legislation but for the reason that his or her
conscience, shaped by training, education and life experience, will
direct a member to do that which is morally correct.(106)
This applies to Australia too. It is a
truism to say that Australians live in a polity that is
constitutionally democratic. Throughout the Constitution of the
Commonwealth are references to the people, to voting, to
representative, responsible government and under s.128 of the
Constitution, the Constitution itself can be changed only by the
proposed change being submitted to the people for their agreement.
The sovereign power of the Commonwealth resides with the people and
it is exercised only with their consent and on their behalf, by
their elected representatives.(107) What this means is that all
powers of government ultimately belong to, and are derived from,
the people.(108) This is true also of the States. It follows, on
this view, that the State and Commonwealth Parliaments have been
entrusted with the powers of government by the people and as such
they are merely different grantees and trustees of the powers of
government that are derived ultimately from the people.
Being a trustee does not allow a person to
do what he or she wants. The actions of such a person are not
merely constrained by law, but importantly by justified
expectations. The expectation is that those upon whom civic
responsibilities have been conferred by the people will act only in
the people's interest, by acting in accordance with certain
principles that all the community shares. This is the basis upon
which the trust is conferred, and importantly, the basis upon which
it is accepted by the grantee. As a result, those who have been
entrusted with civic responsibilities are accountable to the people
for the way in which they act. On this view, unethical behaviour
matters because it involves breaking a trust-in effect an implied
promise-to promote and protect the common good by acting in
accordance with certain principles that all the community
shares.
Moreover, democracy by its nature requires
the citizenry to be engaged to some extent with the political life
of the community. They must deliberate and judge. Citizens do not
need to know, most of the time, the minutiae of the electoral
process or even the functions of each house of parliament. (Though
the more that is known, the better for the system of government.)
In order for the system to work, the only ability that citizens
need in order to be effective members of the political community,
is to be able to assess issues and policies and the behaviour of
their representatives, reach a judgement, and cast their votes
accordingly. To do this, citizens must maintain a watching brief,
monitoring and evaluating the actions of those entrusted with the
people's business.
Impropriety, however, undermines the
democratic process at its heart by hindering the free deliberation,
not merely of citizens but their elected representatives. It
prevents the community receiving reliable advice and information as
to the nature and effects of policy.
Moreover, while it is one of the great
virtues of the democratic process that allegations of impropriety
can be made, tested and adjudged, it is one of the weaknesses of
the system that the system can be all too easily be diverted by a
procession of allegations. When this occurs the system of
government, administration and policy-making can be paralysed while
it is occupied defending ethical scandals and peccadilloes, and
parliamentarians are concerned to defend colleagues who are the
centre of allegations. What allegations and actual cases of
impropriety do therefore, is take the focus of discussion away from
issues that are important and which require attention, and place it
on other issues where little debate is really necessary since the
rights and wrongs are relatively clear. When this occurs, the
important issues of the day are not properly addressed, the quality
of decision-making is compromised and the checks and balances of
the democratic system fail to function as effectively as they
could.
Conclusions
Codes of conduct have been adopted and
implemented in the two democracies from which the Commonwealth
initially derived much of its constitutional inspiration; the
United Kingdom and the United States. In the case of the United
Kingdom, it is too early to tell whether the code of conduct has
improved the conduct of parliamentarians. In the United States
Congress the codes of conduct adopted there do not seem to have
improved matters, but this may well be due to the method of
implementation. In the Canadian provincial jurisdictions the codes
are considered successful. The codes are seen as necessary elements
in a system of assured accountability-the system by which citizens
can be assured that the executive, and more widely, the
legislature, will act in the public interest and according to broad
ethical standards that underpin the society. Mr E.N. (Ted) Hughes,
conflict of interest commissioner of British Columbia, put the
point this way:
It is my view that a nation is no stronger
than its ethical and moral principles, and the ultimate strength of
those ethical and moral principles is in the hands of those
citizens democratically elected to lead our country in the
provinces, the territories and our municipalities. The cornerstone
that underpins sound moral and ethical principles and values is the
integrity, honour and trustworthiness of our democratically elected
officials at all levels of government.
I believe that conflict of interest
legislation...has been a response to shore up that
cornerstone...(109)
Little has been said about the contents of a
code of conduct. Although that has not been the focus of this
paper, it may be appropriate to speculate at this point.
Emerging from this discussion is the point
that an essential element in any code of conduct is a clear
injunction to honour the traditions of representative government,
which involve facilitating accountability and promoting public
discussion on matters of public importance. Much of the
misbehaviour that fuelled the current advocacy for codes of
conduct-WA Inc, the corruption in Queensland-does not only involve
conflicts of interest or other forms of personal impropriety, but a
lack of commitment to the institutions of representative democratic
government. It is that sort of misbehaviour that codes must
address, along with influence peddling, and post-parliamentary
service employment, and misuse of entitlements, amongst other
things.
Codes cannot merely be aspirational but must
contain clear injunctions prohibiting some actions. Examples of
such prohibitions would be an injunction to avoid influence
peddling, or behaving in a manner that tended to reflect badly upon
the institution or lower its dignity.
Within the Commonwealth, codes of conduct
have been advocated by various commissions of inquiry, at the
national and state level. Here too, codes are not merely devices to
be used to improve the behaviour of parliamentarians, but devices
that are essential elements in the system of responsible,
democratic governance. Codes of conduct do not aim merely to raise
the level of ethical behaviour for parliamentarians. Another aim,
it has been argued here, is to ensure that the parliament operates
as it should; as the forum in which deliberation can occur and
where all those who hold a grant of power from the people can be
held, and are held, whether as ordinary parliamentarians or as
ministers, accountable for the way in which that power is
exercised. Only in that way will the trust of the community be
increased and discharged.
It is important to point out, however, that
codes of conduct are not the only measures that must be adopted in
order to improve the perception that ordinary citizens hold of the
institution of parliament and parliamentarians. They are, as the
various commissions of inquiry have found, merely part of a series
of reforms, designed to fortify the system of government against
people who would subvert it. Other elements include laws against
bribery, parliamentary rules prescribing norms of behaviour for the
orderly business of a House, such as enforcement of a standing
order that members actually address the content of a question
rather than use it as an opportunity to berate the opposition. Also
centrally important are displays of leadership, propriety of
conduct, and moral courage, especially on issues of national
importance, even if there is an electoral price to pay. Codes of
conduct are one step in this journey. They are, however, an
essential step and one that can be delayed no longer.
Endnotes
-
- Politicians Fall To Low Levels Of Honesty and Ethics-Only
Car Salesmen Rate Lower, The Roy Morgan Research Centre Pty Ltd,
Finding No. 3088, 21 May 1998. Available at: http://www.roymorgan.com.au/
- The Hon. J. Howard, Prime Minister: A Guide on Key elements
of Ministerial Responsibility, Canberra, April 1996. For a
discussion of the ministerial resignations and reasons for them, up
until June 1997, see Ian Davis, 'Prosser trips over the code', The
Canberra Times, 28 June 1997, p. 11.
- For example in the Bulletin of 12 September 1995, a Morgan
poll indicated that 91 per cent of the sample thought that
politicians were not usually truthful and 61 per cent thought that
politicians put most emphasis on looking after themselves and their
party. Cited in R. Edwards, 'A Code of Ethics for Parliament',
paper presented to the conference, Making Parliament Work, 19th
annual conference of the Australasian Study of Parliament Group,
10-11 October 1997, p. 2.
- H. Mackay, Mind & Mood, Mackay Research Pty Ltd,
Lindfield, Sydney, 1998, p. 39.
- H. Mackay, op. cit., 1997, p. 61. Mackay notes that this
observation is identical to that contained in the Mind & Mood,
1996 report, implication 6, p. 63. It is also important to note
that in 1976, nineteen per cent of people rated Commonwealth
parliamentarians as high or very high in terms of ethics and
honesty. See, Roy Morgan Research Centre, Finding No. 3088,
released to all media, 21 May 1998, p. 2. Available at: http://www.roymorgan.com.au/
- Originally published in The Bulletin, 12 September 1995;
referred to by Senator Kernot, 16 November 1995 in a speech in the
Senate. Senate, 16 November 1995, p. 3237.
- The Bulletin, 14 October 1997; The Roy Morgan Research
Centre, Finding No. 3026, 14 October 1997. Available at: http://www.roymorgan.com.au/
- The Roy Morgan Research Centre, Finding No. 2975, 25
February 1997. Available at: http://www.roymorgan.com.au/
- 'One Nation Policies And Dissatisfaction With Other Parties
Are Main Reasons For Voting For Pauline Hanson One Nation At
Queensland State Election'. In a special Morgan Poll analysing the
reasons why Queensland electors are voting for Pauline Hanson's One
Nation Party at the State election, the most often mentioned
reasons are her policies (46 per cent) and dissatisfaction with the
major or other Parties (43 per cent). The Roy Morgan Research
Centre, Finding No. 3098, released to all media 12 June 1998. See
also the various analyses of the One Nation electoral success in
the 1998 Queensland election, in The Sydney Morning Herald, 15 June
1998.
- The Hon. G. Evans, et al., A Roundtable on Ethics and
Conflict of Interest, Canadian Parliamentary Review, 18, 1995-1996,
pp. 25-32 at p. 26.
- M. Gordon, 'Revealed: The Liberal ''plot'' to get Paul
Keating', The Age, 18 July 1998, pp. 1 & 4.
- Deborah Hope, 'Inner State', The Australian's Review of
Books, p. 25.
- Ibid.
- Nolan, Standards in Public Life, First Report of the
Committee on Standards in Public Life, London, HMSO, Cm 2850-1,
1995, p. 104.
- H. Mackay, op. cit., p. 63.
- For example see, Commission on Government, Commission on
Government, Report No: 3, Perth, Western Australia, 1996, p. 156,
para. 7.1.1.3.
- The Roy Morgan Research Centre, Finding No. 2997; published
in The Bulletin, 1 July 1997. available at: http://www.roymorgan.com.au/
- The Bulletin, op. cit., p. 32-37.
- H. Mackay, op. cit., pp. 44-47.
- Commission on Government, op. cit., p. 156. Recall also the
Roy Morgan/Bulletin poll of 1995, referred to above, in which 56
per cent of respondents said that they had lost faith in the
political system.
- Nolan, Standards in Public Life, First Report of the
Committee on Standards in Public Life, London: HMSO, Cm 2850-1;
Canada, 1995. Second Report of the Special Joint Committee on a
Code of Conduct of the Senate and the House of Commons, House of
Commons, Canada. Available at:
http://www.parl.gc.ca/committees352/sjcc/reports/02_1997-03/sjcc-02-cov-e.html
See N. Bowen, Chairman, Public Duty and Private Interest, Report of
the Committee of Inquiry, Australian Government Publishing Service,
Canberra, 1979.
- For overseas examples, see for example, Redcliffe-Maud,
Chairman, Report of the Prime Minister's Committee on Local
Government Rules of Conduct, London: HMSO, Cm 5636; 1974. Nolan,
Standards in Public Life, First Report of the Committee on
Standards in Public Life, London: HMSO, Cm 2850-1; Canada, 1995.
Second Report of the Special Joint Committee on a Code of Conduct
of the Senate and the House of Commons, House of Commons, Canada.
Available at:
http://www.parl.gc.ca/committees352/sjcc/reports/02_1997-03/sjcc-02-cov-e.html
- Commission on Government, Commission on Government, Report
No: 3; Western Australia, 1996. Western Australia Parliament,
Western Australia Parliamentary Standards Committee (the Beazley
Committee): 1989. It must be added that the code of conduct set out
was generally taken from standing orders. See Commission on
Government, Report No: 3, p. 154, para. 7.1.1.2.
- For example see: Queensland, Electoral and Administrative
Review Commission, Issues Paper No. 15: Codes of Conduct for Public
Officials, Brisbane, Queensland, 1991. Electoral and Administrative
Review Commission, Report on the Review of Codes of Conduct for
Public Officials, Brisbane, Queensland, 1992. Parliamentary
Committee for Electoral and Administrative Review, Report on Codes
of Conduct for Public Officials, Brisbane, 1993.
- Parliament of Tasmania, House of Assembly Select Committee
on Reform of Parliament, Hobart, 1994. A code of conduct, closely
modelled on the code of ethics of the Canadian province of
Saskatchewan, was adopted by the House of Assembly and incorporated
into the House's Standing Orders on 22 May 1996. The Tasmanian
Legislative Council has not adopted a code of conduct or ethics.
Reference: Standing Committee on Parliamentary Privilege and
Ethics, Inquiry into the Establishment of a Draft Code of Conduct
for Members, Report No: 3, Legislative Council, Parliament of New
South Wales, Sydney: 29 October 1996, para. 3.4.1-3.4.3, pp.
18-19.
- Australian Capital Territory, Inquiry into the Proposed
Ethics Committee Code of Conduct, Report of the Legislative
Assembly Standing Committee on Administration and Procedures,
Canberra, 1991.
- Standing Committee on Parliamentary Privilege and Ethics,
Inquiry into the Establishment of a Draft Code of Conduct for
Members, Report No: 3, Legislative Council, Parliament of New South
Wales, Sydney: 29 October 1996; Standing Ethics Committee, Report
on A Draft Code of Conduct for Members of the Legislative Assembly,
Legislative Assembly, Parliament of New South Wales, Sydney,
October 1997.
- To date, in addition to Tasmania, Victoria is the only
other jurisdiction to adopt a code of conduct for parliamentarians.
It applies to members of both Houses. It is contained in Part 1 of
the Members of Parliament (Register of Interests) Act 1978. It is
broadly aspirational in content and concentrates on conflicts of
interest. Although wilful contravention of the code constitutes a
contempt of parliament, there have been no reported breaches.
Reference, Standing Committee on Parliamentary Privilege and
Ethics, Inquiry into the Establishment of a Draft Code of Conduct
for Members, Report No: 3, Legislative Council, Parliament of New
South Wales, Sydney, 29 October 1996, para. 3.5.1-3.5.2, pp.
1-9.
- Cited in H. Whitton, 'The Rediscovery of Professional
Ethics for Public Officials: An Australian Review', 1994, in N.
Preston, Ethics for the Public Sector, Sydney, Federation Press,
1994, pp. 39-59, at p. 39. Professor Paul Finn, subsequently Mr
Justice Finn of the Federal Court, has written extensively on
public trust, and the conduct of elected and unelected officials.
As well, he has been influential in various inquiries through the
evidence that he has given.
- Advocacy of a code of conduct for parliamentarians was
given in J. M. Riordan, Chairman, Declaration of Interests: Report
of the Joint Committee on Pecuniary Interests of Members of
Parliament (tabled in both houses 30 September 1975) and the
subsequent Bowen Report. See N. Bowen, Chairman, Public Duty and
Private Interest, Report of the Committee of Inquiry, Australian
Government Publishing Service, Canberra, 1979. Nothing was done
until late 1992 when a working group of parliamentarians from both
Houses was established-though not established by an order of either
House. This group was dissolved when the parliament was prorogued
preceding the 1993 Federal election but was reconvened in March
1994. It produced a draft code for members and senators-A framework
of ethical principles for members and senators-and one for
ministers and presiding officers-A framework of ethical principles
for ministers and presiding officers. See, Australia, House of
Representatives, Debates, 21 June 1995, p. 1983 and Commonwealth
Parliament, 'A framework of ethical principles for members and
senators' and 'A framework of ethical principles for ministers and
presiding officers', The House Magazine, 5 July 1995, pp.
26-28.
- United Kingdom, House of Commons, The Code of Conduct
together with The Guide to the Rules Relating to the Conduct of
Members, House of Commons, 24 July 1996. House of Commons Paper 688
of Session 1995/96. Available at:
http://www.parliament.the-stationery-office.co.uk/pa/cm1996-97/cmselect/cmstand/688/codefc.htm
For a discussion of the approach in the United States Congress see,
Select Committee on Ethics, Resolution for Disciplinary Action,
104th Congress, 1st Session. S. Rept. 104-137. Available at:
http://thomas.loc.gov/home/
For a discussion of Canadian provincial legislation, see, The Hon.
G. Evans, et al., 'A Roundtable on Ethics and Conflict of
Interest', Canadian Parliamentary Review, 18, 1995-1996, pp.
25-32.
- The Hon. J. Howard, Prime Minister: A Guide on Key elements
of Ministerial Responsibility, Canberra, April 1996.
- Ian Davis, 'Prosser trips over the code', The Canberra
Times, 28 June 1997, p. 11.
- Senate Standing Order 22A; House of Representatives,
Resolution: Registration of Members' Interests.
- Corruption and bribery of members of parliament is
prohibited under the Crimes Act 1914 (Cth), Secs. 73A(1) and
73A(2). Other forms of interference with members of parliament is
prohibited under the Parliamentary Privileges Act 1987 (Cth),
sec.4.
- Rosenthal, Drawing the Line: Legislative Ethics in the
United States, University of Nebraska Press, Lincoln, 1996, pp. 53
& 59.
- 'Power play on government documents moves to High Court',
The Canberra Times, 16 June 1998, p. 2.
- Members Integrity Act 1994, in Statutes of Ontario, 1994,
Chapter 38. Available at: http://legis.acjnet.org/cgi-bin/
- E.N. (Ted) Hughes, conflict of interest commissioner,
British Columbia, in The Hon. G. Evans, et al., 'A Roundtable on
Ethics and Conflict of Interest', Canadian Parliamentary Review, 18
1995-1996, pp. 25-32, at p. 31.
- D.F. Thompson, Political Ethics and Public Office, Harvard
University Press, Cambridge, Mass: 1987, p. 98.
- Standing Committee on Parliamentary Privilege and Ethics,
op. cit., para. 4.1.4, p. 30.
- M.M. Atkinson and M. Mancuso, 'Edicts and etiquette:
Regulating conflict of interest in Congress and the House of
Commons', Corruption and Reform, 7, 1992, pp. 1-18, at p. 16.
- Standing Committee on Parliamentary Privilege and Ethics,
op. cit., para. 4.2.8-4.2.11, pp. 38-39.
- M.M. Atkinson and M. Mancuso, op. cit., pp. 1-18, at p.
16.
- The Hon. G. Evans, op. cit., pp. 25-32.
- The Hon. Bob Carr, Premier of New South Wales, News
Release, 31 March 1998.
- Commissioner Fitzgerald was aware of this limitation. See,
G.E. Fitzgerald, (1989), Report of a Commission of Inquiry Pursuant
to Orders In Council: Commission of Inquiry into Possible Illegal
Activities and Associated Police Misconduct, Government Printer,
Brisbane, Queensland, para. 3.5.6.
- On these matters see, G. Williams, 'Push Polling in
Australia: Options for Regulation', Research Note 36, Department of
the Parliamentary Library, Canberra, 1996-1997. Available at:
http://www.aph.gov.au/library/pubs/rn/1996-97/97rn36.htm
G. Williams, 'Truth in Political Advertising Legislation on
Australia', Research Paper 13, Department of the Parliamentary
Library, Canberra, 1996-1997. Available at: http://www.aph.gov.au/library/pubs/rp/1996-97/97rp13.htm
- See the legal manoeuverings as detailed in the case of
Senator Bob Packwood, Select Committee on Ethics, Resolution for
Disciplinary Action, 104th Congress, 1st Session. S. Rept. 104-137.
Available at: ftp://ftp.loc.gov/pub/thomas/cp104/sr137.txt
Interestingly, in the United Kingdom where the Parliamentary
Commissioner for Standards is constituted under a standing order of
the House of Commons, this has not prevented litigation. See R v
Parliamentary Commissioner for Standards, ex parte Al Fayed, [1998]
1 All ER 93. The point is that there would be less litigation when
bodies external to the legislature are involved, as this case
shows.
- R. Hawes, 'Guardian of MPs' conduct overdue', The
Australian, 4 July 1997, p. 2.
- Senate Standing Order 22A; House of Representatives,
Resolution: Registration of Members' Interests.
- J. Braithwaite and T. Makkai, 'Trust and Compliance',
Policing and Society 4, 1993, pp. 1-12.
- Brien, 'Professional Ethics and the Culture of Trust',
Journal of Business Ethics, 16, forthcoming: 1998.
- Commission on Government, Commission on Government, Report
No: 3, Perth, Western Australia, 1996, p. 148, para. 6.5; N.
Preston, 'Politics, Prudence and Principle: codifying the Conduct
of Parliamentarians', paper presented to the conference, Making
Parliament Work, 19th annual conference of the Australasian Study
of Parliament Group, 10-11 October 1997, p. 2; A. Sinclair, 'Codes
in the Workplace: Organisational versus Professional Codes', in M.
Coady and S. Bloch (eds), Codes of Ethics and the Professions,
Melbourne University Press, Melbourne, 1996, pp. 88-108, at p.
92.
- See A. Brien, 'Regulating Virtue: Formulating, Engendering
and Enforcing Corporate Ethical Codes', Business and Professional
Ethics Journal 15, 1997, pp. 21-52; B.J. Farrell, Investigation and
Evaluation of Codes of Ethics in Australian Enterprises and
Professions and in the International Accounting Profession,
Unpublished doctoral dissertation, University of Technology,
Sydney, 1997.
- Sinclair, Improving Ethics Through Organisational Culture:
A Comparison of Two Approaches, in C. A. J. Coady and C. J. G.
Sampford (eds), Business Ethics and the Law, Federation Press,
Sydney, 1993, pp. 128-148.
- Commission on Government, op. cit., pp. 88-108, at p.
92.
- There is an enormous literature on this. For a large
bibliography, see A. Brien, 'Regulating Virtue: Formulating,
Engendering and Enforcing Corporate Ethical Codes', Business and
Professional Ethics Journal 15, 1997, pp. 21-52. For a clear
analysis and discussion of the effectiveness of different codes of
conduct and various implementation regimes, see B.J. Farrell,
Investigation and Evaluation of Codes of Ethics in Australian
Enterprises and Professions and in the International Accounting
Profession, Unpublished doctoral dissertation, University of
Technology, Sydney, 1997.
- Sinclair, 'Codes in the Workplace: Organisational versus
Professional Codes', in M. Coady and S. Bloch (eds), Codes of
Ethics and the Professions, Melbourne University Press, Melbourne,
1996, pp. 88-108, at p. 92, at pp. 98-99; A. Brien, 'Regulating
Virtue: Formulating, Engendering and Enforcing Corporate Ethical
Codes', Business and Professional Ethics Journal 15, 1997, pp.
21-52.
- Electoral and Administrative Review Commission, Report on
the review of codes of conduct for public officials, Brisbane, May
1992, p. 149, para. 7.2.1-7.22.
- Standing Committee on Parliamentary Privilege and Ethics,
op. cit., pp. 39-40, para. 4.2.15-4.2.16.
- C.A.J. Coady, 'On Regulating Ethics', in M. Coady and S.
Bloch (eds), Codes of Ethics and the Professions, Melbourne
University Press, Melbourne, 1996, pp. 269-287; Commission on
Government, Commission on Government, Report No: 3, Perth, Western
Australia, 1996, p. 150; K. Kernaghan, and J.W. Langford, The
Responsible Public Servant, Halifax: The Institute for Research on
Public Policy, 1991, pp. 187-88.
- Graham Richardson, Whatever It Takes, Transworld, Sydney,
1994.
- Marian Wilkinson, The Fixer: The Untold Story of Graham
Richardson, William Heinemann: Melbourne, 1996, p. 385.
- The Hon. G. Evans, et al., op. cit., pp. 25-32, at p.
25.
- L. Fuller, The Morality of Law, Rev. ed., Yale University
Press, New Haven, 1969, p. 39.
- Ibid., pp. 39, 46-91. It must be pointed out that Fuller
claims that he is not dealing with the substantive aims of legal
rules. He is not suggesting that these criteria form the basis by
which to judge that a particular law is well-drafted or that these
criteria can be used to determine whether any particular law will
attain the purpose the law-maker had in mind when formulating it.
Rather, Fuller claims that he is concerned with the ways in which a
system of rules for governing human conduct must be constructed and
administered if it is to be efficacious and at the same time remain
what it purports to be [a system of laws]. (Fuller, The Morality of
Law, pp. 97.?) In contrast, I am arguing that most
of these criteria (including the additional ones I suggest) not
only function as a basis upon which to distinguish well-drafted
codes of conduct from poorly drafted codes, but that most of them
can be used to identify well-drafted provisions from poorly-drafted
ones. For example, if the law as a body of rules is unknown, it
will fail to regulate conduct; similarly, if a particular law is
unintelligible then it will be unlikely to regulate conduct in the
direction desired, and certainly no agent could be held culpable
for failing to obey it; a person cannot be held culpable for
failing to obey a rule that is secret, or which, for other reasons,
could not be known, or which does not exist.
- Ibid., p. 39.
- D.F. Thompson, Political Ethics and Public Office, Harvard
University Press, 1987, Cambridge, Mass: p. 109.
- See Province of Alberta, Conflicts of Interest Act, 1991,
chapter C-22.1. Available at: http://www.gov.ac.ca/qp/ascii/acts/C22P1.TXT
and Ethics Commissioner, Province of Alberta, Office of the Ethics
Commissioner, Internet Government of Alberta Directory available
at: http://www.gov.ab.ca/foip/pubs/abdir/oec.html
- See Legislative Assembly, Ontario, Members' Integrity Act,
1994: Statutes of Ontario, 1994, Chapter 38. Available at: http://legis.acjnet.org/cgi-bin/
op. cit., pp. 25-32; on the situation in the Canadian provinces
generally.
- The Hon. Bob Carr, op. cit., 31 March 1998.
- The Hon. G. Evans, et al., op. cit., 1995-1996, pp.
25-32.
- See Second Report of the Special Joint Committee on a Code
of Conduct of the Senate and the House of Commons, House of
Commons, Canada. Available at:
http://www.parl.gc.ca/committees352/sjcc/reports/02_1997-03/sjcc-02-cov-e.html
Standards and Privileges Thirteenth Report, House of Commons: 17
March 1998. Available at: http://www.parliament.the-stationery-office.co.uk/
- Second Report of the Special Joint Committee on a Code of
Conduct of the Senate and the House of Commons, House of Commons,
Canada. Available at:
http://www.parl.gc.ca/committees352/sjcc/reports/02_1997-03/sjcc-02-cov-e.html
- Standing Committee on Parliamentary Privilege and Ethics,
op. cit., pp. 26-27 paras 3.11.1-3.11.6.
- See A. Brien, 'Regulating Virtue: Formulating, Engendering
and Enforcing Corporate Ethical Codes', Business and Professional
Ethics Journal 15, 1997, pp. 21-52.
- M. Burgmann, MLC, 'Towards a Code of Conduct for NSW
Parliamentarians', a paper presented at the Australasian Study of
Parliament Study Group conference, Making Parliament Work, 19th
Annual conference, Parliament House, Perth, 10-11 October, 1997, p.
5.
- D.F. Thompson, op. cit., p. 108.
- Standing Order No. 150.
- Standing Order No. 149.
- Second Report of the Special Joint Committee on a Code of
Conduct of the Senate and the House of Commons, op. cit., available
at:
http://www.parl.gc.ca/committees352/sjcc/reports/02_1997-03/sjcc-02-cov-e.html
- N. Bowen, Chairman, Public Duty and Private Interest,
Report of the Committee of Inquiry, Australian Government
Publishing Service, Canberra, 1979, pp. 133 & 223; Commission
on Government, Commission on Government, Report No: 1, 1996, Perth,
Western Australia, 1995, p. 337.
- The Hon. G. Evans, et al., op. cit., pp.25-32
- Commission on Government, op. cit., p. 155.
- D.F. Thompson, op. cit., pp. 99-100.
- N. Bowen, Chairman, Public Duty and Private Interest,
Report of the Committee of Inquiry, Australian Government
Publishing Service, Canberra, 1979, p. 31, para. 4.9; Electoral and
Administrative Review Commission, op. cit., 1992, Commission on
Government, op. cit., p. 173 para. 7.1.5; op. cit., 29 October
1996; Standing Ethics Committee, op. cit., October 1997.
- Brien, op. cit., pp. 21-52.
- Opinion polls taken at the time of the allegations
concerning the misuse of travel claims show that at first the
Australian Labor Party's support increased following its pursuit of
the allegations, but when some of the ALP's own members were
implicated, the ALP's support decreased significantly. See 'ALP
Support Increases Following Coalition Ministers [sic] Resignations
over Travel Allowance Claims', The Roy Morgan Research Centre Pty
Ltd, Finding No. 3023, released 7 October 1997 and 'Coalition
Support Increases Significantly, While ALP Support Decreases
Significantly Following Travel Rorts Scandal', The Roy Morgan
Research Centre Pty Ltd, Finding No. 3028, released 21 October
1997. Available at: http://www.roymorgan.com.au/
- The Hon. G. Evans, et al., op. cit., pp. 25-32, at p.
29.
- N. Preston, Ethics for the Public Sector, Federation Press,
Sydney, 1994, p. 1.
- See, Plutarch, Lives.
- See, Republic; Laws.
- See, Nicomachean Ethics; Politics.
- G.T. Gabris, 'Beyond Conventional Management Practices:
Shifting Organisational Values' in J.S. Bowman (ed.) 1991, Ethical
Frontiers in Public Management, San Francisco: Jossey-Bass, pp.
205-224, at p. 217.
- Queensland, Electoral and Administrative Review Commission
Report on the Review of Codes of Conduct for Public Officials,
Brisbane, 1992, p. 149, para 7.22.
- On the effect and influence of lobbyists, see, S. Tongue,
'The virtues and vices of lobbying', in G.L. Clark, et al., 1997,
Accountability and Corruption, Allen and Unwin, Sydney, pp.
119-138.
- Joint Standing Committee on Electoral Matters, The 1996
Federal Election, Parliament of the Commonwealth of Australia,
Canberra, 1997, p. 144.
- Ibid., p. 126.
- Ibid., pp. 127-129 & p. 144.
- Ibid., pp. 127-129; p. 139. In the last Federal election
held under voluntary turn out, the 1922 election,
58 per cent of eligible voters turned
out to vote.
- Ibid., p. 145; Majority of Australian Voters Want
Compulsory Voting', The Roy Morgan
Research Centre Pty. Limited, Finding
No. 2997, released 1 July 1997. Available at:
http://www.roymorgan.com.au/
- Senator Kernot, Senate, Debates, 16 November 1995, cited an
opinion poll published in The
Bulletin, 12 September 1997, that
revealed that 56 per cent of people agreed with the
statement 'I have lost faith in the
political system', p. 32-37.
- Senator Kernot, Senate, Debates, 16 November 1995, referred
to an opinion poll published in
The Bulletin, 12 September 1997 which
revealed that 39 per cent of ALP voters, 34 per cent
of Liberal/National Party voters, 40
per cent of other voters and 44 per cent of undecided
voters agreed that the most important
thing to Federal politicians was looking after
themselves, p. 32-37.
- The first elements of this argument are also to be found in
K.H. Marks, Chairman, Report of
the Royal Commission into use of
Executive Power, Government of Western Australia, Perth,
1995, pp. 104-112; op. cit., p. 142,
para. 6.3.3; Select Committee on the Official Corruption
Commission Act,Report of the
Legislative Assembly Select Committee on the Official
Corruption Commission Act, Parliament
of Western Australia, Perth, 1992, p. 4, para 2.2.
- The Hon. G. Evans, et al., op. cit., pp. 25-32, at p.
25.
- C.J. Mason, Australian Capital Television v The
Commonwealth, 1992, 177 CLR 106, at p.
137.
- J. Dean, Theophanous v Herald and Weekly Times Ltd, 199394,
182 CLR 104, at p. 183.
- The Hon. G. Evans, et al., op. cit., pp. 25-32, at p.
31.
Appendix 1
Draft Proposals for a Framework of Ethical
Principles for Members and Senators (Commonwealth
Parliament)
*
Framework of Ethical Principles for Members and
Senators(1)
The principles which follow are intended to
provide a framework of reference for Members and Senators in the
discharge of their responsibilities. They outline the minimum
standards of behaviour which the Australian people have a right to
expect of their elected representatives. They incorporate some
relevant ethical standards which should guide the considerations of
Members of Parliament, and which should be a continuing reference
point for former Members.
It is by adherence to such principles that
Members of Parliament can maintain and strengthen the public's
trust and confidence in the integrity of the Parliamentary
institution and uphold the dignity of public office.
This framework does not seek to anticipate
circumstances or to prescribe behaviour in hypothetical cases.
While terms such as the public interest or just cause are not
capable of definition in the abstract, over time, each House will
develop a body of interpretation and clarification which has regard
to individual cases and contemporary values.
Each House of Parliament will consider
matters which are raised by Members and Senators under the
framework and a majority of two thirds of Members of a House will
be necessary to resolve a matter.
The Principles
-
- Loyalty to the Nation and Regard for its
Laws
Members and Senators must be loyal to
Australia and its people. They must uphold the laws of Australia
and ensure that their conduct does not, without just cause as an
exercise of freedom of conscience, breach or evade those
laws.
- Diligence and Economy
Members and Senators must exercise due
diligence, and in performing their official duties to the best of
their ability, apply public resources economically and only for the
purposes for which they are intended.
- Respect for the Dignity and Privacy of
Others
Members and Senators must have due regard
for the rights and obligations of all Australians. They must
respect the privacy of others and avoid unjustifiable or illegal
discrimination. They must safeguard information obtained in
confidence in the course of their duties and exercise responsibly
their rights and privileges as Members and Senators.
- Integrity
Members and Senators 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.
- Primacy of the Public Interest
Members and Senators must base their conduct
on a consideration of the public interest, avoid conflict between
personal interest and the requirements of public duty, and resolve
any conflict, real or apparent, quickly and in favour of the public
interest.
- Proper Exercise of Influence
Members and Senators 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, or affect improperly
any process undertaken by officials or members of the
public.
- Personal Conduct
Members and Senators must ensure that their
personal conduct is consistent with the dignity and integrity of
the Parliament.
- Additional Responsibilities of Parliamentary Office
Holders
Members and Senators who hold a
Parliamentary office have a duty to exercise their additional
responsibilities with strict adherence to these principles. They
must have particular regard for the proper exercise of influence
and the use of information gained from their duties as
Parliamentary office holders. They must also be accountable for
their administrative actions and for their conduct insofar as it
affects their public duties.
-
- The House Magazine, 5 July 1995, p. 26.
Appendix 2
Draft Code of Conduct for Elected Representatives
(Queensland Electoral and Administrative Review Commission,
1992)
*
The Code of Conduct for Elected
Representatives
-
- Respect for the Law and the System of
Government.
Members shall uphold the laws of Queensland
and Australia, and shall not, without just cause, be a party to
their breach, evasion, or subversion. Members shall act with
respect towards the institutions of both Parliament and local
government, and shall ensure that their conduct, whether in a
personal or official capacity, does not bring the Parliament or
local government into disrepute, or damage public confidence in the
system of government.
- Respect for Persons.
Members shall treat all other Members,
members of the public and other officials honestly and fairly, and
with proper regard for their rights, entitlements, duties and
obligations, and shall at all times act responsively in the
performance of their public duties.
- Integrity.
Members shall at all times seek to advance
the common good of the community which they serve, in recognition
that public office involves a public trust. In particular, Members
shall ensure that their official powers or position are not used
improperly for personal advantage, and that any conflict between
personal interests and public duty which may arise is resolved in
favour of the public interest.
- Diligence.
Members shall exercise due diligence, care
and attention, and shall at all times seek to achieve the highest
standards practicable in relation to their duties and
responsibilities in their official capacity as a Member of the
Parliament or Member of a Local Authority.
- Economy and Efficiency.
Members shall avoid waste, abuse and
extravagance in the provision or use of public resources, and shall
expose fraud and corruption of which the Member is aware.
Appendix
3
The Code of Conduct for Members of Parliament
(United Kingdom)
*
The Code of Conduct for Members of
Parliament
Prepared pursuant to the Resolution of the House of 19th
July 1995
I. Purpose of the Code
The purpose of the Code of Conduct is to assist Members in
the discharge of their obligations to the House, their constituents
and the public at large.
II. Public duty
By virtue of the oath, or affirmation, of allegiance taken
by all Members when they are elected to the House, Members have a
duty to be faithful and bear true allegiance to Her Majesty the
Queen, her heirs and successors, according to law.
*
Members have a duty to uphold the law and to act on all
occasions in accordance with the public trust placed in
them.
*
Members have a general duty to act in the interests of the
nation as a whole; and a special duty to their
constituents.
III. Personal conduct
Members shall observe the general principles of conduct
identified by the Committee on Standards in Public Life(1) as
applying to holders of public office:-
Selflessness
Holders of public office should take decisions solely in
terms of the public interest. They should not do so in order to
gain financial or other material benefits for themselves, their
family, or their friends.
Integrity
Holders of public office should not place themselves under
any financial or other obligation to outside individuals or
organisations that might influence them in the performance of their
official duties.
Objectivity
In carrying out public business, including making public
appointments, awarding contracts, or recommending individuals for
rewards or benefits, holders of public office should make choices
on merit.
Accountability
Holders of public office are accountable for their decisions
and actions to the public and must submit themselves to whatever
scrutiny is appropriate to their office.
Openness
Holders of public office should be as open as possible about
all the decisions and actions that they take. They should give
reasons for their decisions and restrict information only when the
wider public interest clearly demands.
Honesty
Holders of public office have a duty to declare any private
interests relating to their public duties and to take steps to
resolve any conflicts arising in a way that protects the public
interest.
Leadership
Holders of public office should promote and support these
principles by leadership and example.
*
Members shall base their conduct on a consideration of the
public interest, avoid conflict between personal interest and the
public interest and resolve any conflict between the two, at once,
and in favour of the public interest.
*
Members shall at all times conduct themselves in a manner which
will tend to maintain and strengthen the public's trust and
confidence in the integrity of Parliament and never undertake any
action which would bring the House of Commons, or its Members
generally, into disrepute.
*
The acceptance by a Member of a bribe to influence his or her
conduct as a Member, including any fee, compensation or reward in
connection with the promotion of, or opposition to, any Bill,
Motion, or other matter submitted, or intended to be submitted to
the House, or to any Committee of the House, is contrary to the law
of Parliament.
*
Members shall fulfil conscientiously the requirements of the
House in respect of the registration of interests in the Register
of Members' Interests and shall always draw attention to any
relevant interest in any proceeding of the House or its Committees,
or in any communications with Ministers, Government Departments or
Executive Agencies.
*
In any activities with, or on behalf of, an organisation with
which a Member has a financial relationship, including activities
which may not be a matter of public record such as informal
meetings and functions, he or she must always bear in mind the need
to be open and frank with Ministers, Members and officials.
*
No Member shall act as a paid advocate in any proceeding of the
House.
*
No improper use shall be made of any payment or allowance made
to Members for public purposes and the administrative rules which
apply to such payments and allowances must be strictly
observed.
*
Members must bear in mind that information which they receive in
confidence in the course of their parliamentary duties should be
used only in connection with those duties, and that such
information must never be used for the purpose of financial
gain
- Nolan, Standards in Public Life, First Report of the
Committee on Standards in Public Life, London: HMSO, Cm 2850-1,
1995, p. 14. Also available at: http://www.parliament.the-stationery-office.co.uk/
Appendix 4
Proposed Code of Official Conduct (Canada)
*
CODE OF OFFICIAL CONDUCT(1)
We, the members of Parliament, individually and
collectively agree to abide by the principles, rules and
obligations of this Code of Official Conduct:
PURPOSES
The purposes of the Code of Official Conduct
are:
1. to recognize that service in Parliament is a
public trust;
2. to maintain public confidence and trust in
the integrity of Parliamentarians individually and the respect and
confidence that society places in Parliament as an institution;
3. to reassure the public that all
Parliamentarians are held to standards that place the public
interest ahead of Parliamentarians' private interests and to
provide a transparent system by which the public may judge this to
be the case;
4. to provide for greater certainty and guidance
for Parliamentarians in how to reconcile their private interests
with their public duties;
5. to foster consensus among Parliamentarians by
establishing common rules and by providing the means by which
questions relating to proper conduct may be answered by an
independent, non-partisan advisor.
PRINCIPLES
All Parliamentarians are expected to uphold the
following principles:
1. Ethical Standards
Parliamentarians shall/should act with honesty
and uphold the highest ethical standards, so as to maintain and
enhance public confidence and trust in the integrity of each
Parliamentarian and in the institution of Parliament.
2. Public Scrutiny
Parliamentarians shall/should perform their
official duties and arrange their private affairs in a manner that
will bear the closest public scrutiny, an obligation that is not
fully discharged by simply acting within the law.
3. Independence
Parliamentarians shall/should take care to avoid
placing themselves under any financial or other obligation to
outside individuals or organizations that might influence them in
the performance of their official duties. Particular vigilance
should be exercised in dealings with paid lobbyists.
4. Public Interest
Upon election or appointment to office,
Parliamentarians shall/should arrange their private affairs so that
foreseeable real or apparent conflicts of interest may be prevented
from arising, but if a conflict does arise, it shall/should be
resolved in a way that protects the public interest.
5. Gifts and Personal
Benefits
Parliamentarians shall/should not accept any
gift or personal benefit connected with their office that may
reasonably be seen to compromise their personal judgment or
integrity.
***
[NB: Following these provisions are three
further sections. The next deals with application of the code; the
second with interpretation. The third section sets out specific
rules that relate to identified matters including using influence,
insider information, gifts and personal benefits, and government
contracts]
- Parliament of Canada, Second Report of the Special Joint
Committee on a Code of Conduct of the Senate and the House of
Commons, 1997. Available at:
http://www.parl.gc.ca/committees352/sjcc/reports/02_1997-03/report-e.html
Appendix 5
Proposed Code of Conduct for Members of the NSW
Legislative Assembly and Legislative Council
*
PREAMBLE(1)
-
- The Members of the Legislative Assembly and the Legislative
Council have reached agreement on a Code of conduct which is to
apply to all Members of Parliament.
-
- Members of Parliament recognise that they are in the unique
position of being responsible to the electorate. The electorate is
the final arbiter of the conduct of Members of Parliament and has
the right to dismiss them from office at regular elections.
-
- Members of Parliament accordingly acknowledge their
responsibility to maintain the public trust placed in them by
performing their duties with honesty and integrity, respecting the
law and the institution of Parliament, and using their influence to
advance the common good of the people of New South Wales.
-
- Members of Parliament also recognise that some Members are
non-aligned and others belong to political parties. Organised
parties are now a fundamental part of the democratic process and
participation in their activities is recognised by the Parliament
as within the legitimate activities of Members of Parliament.
___________________________
THE CODE
-
- Disclosure of conflict of interest
(a) Members of Parliament must take all
reasonable steps to declare any conflict of interest between their
private financial interests and decisions in which they participate
in the execution of their office.
(b) This may be done through declaring their
interests on the Register of Disclosures of the relevant House or
through declaring their interest when speaking on the matter in the
House or a Committee, or in any other public and appropriate
manner.
(c) A conflict of interest does not exist where
a Member is only affected as a member of the public or a member of
a broad class.
- Bribery
Members must not promote any matter, vote on any
bill or resolution, or ask any question in Parliament or its
Committees, in return for payment or any other personal financial
benefit.
- Gifts
(a) Members must declare all gifts and benefits
received in connection with their official duties, in accordance
with the requirements for the disclosure of pecuniary
interests.
(b) Members must not accept gifts that may pose
a conflict of interest or which might give the appearance of an
attempt to corruptly influence the member in the exercise of his or
her duties.
(c) Members may accept political contributions
in accordance with Part 6 of the Election Funding Act
1981.
- Use of public resources
Members must apply the public resources to which
they are granted access according to any guidelines or rules about
the use of those resources.
- Use of confidential information
Members must not knowingly and improperly use
official information which is not in the public domain, or
information obtained in confidence in the course of their
parliamentary duties, for the private benefit of themselves or
others.
-
- Released by the Premier of NSW, Mr Carr, on 31 March 1998.
Appendix 6
Proposed Administration Procedure for a Code of
Conduct(1)
-
- United Kingdom, House of Commons, Select Committee on Standards
and Privileges, 13th Report, Appendix 18. Available at:
http://www.parliament.the-stationery-office.co.uk/pa/cm199798/cmselect/cmstnprv/633xiii/sp1322.htm