Code of conduct
The committee reports to the Senate on its inquiry into the development
of a code of conduct for senators.
The matter was referred in the following terms:
The development of a draft code of
conduct for senators, with particular reference to:
(a) the operation of
codes of conduct in other parliaments;
(b) who could make a
complaint in relation to breaches of a code and how those complaints might be
(c) the role of the
proposed Parliamentary Integrity Commissioner in upholding a code; and
(d) how a code might
be enforced and what sanctions could be available to the parliament.
The Senate also asked the committee to consult with the House Committee
of Privileges and Members’ Interests (the ‘House Committee’) on the text of the
code of conduct ‘with the aim of developing a uniform code, together with
uniform processes for its implementation’ for senators and members.
The Senators’ Interests Committee met with the House Committee for a
roundtable discussion with academics, parliamentarians and parliamentary staff
and also had the benefit of considering the transcript of a hearing by
video-conference involving House Committee members and, from the UK House of
Commons, the Chair of its Committee on Standards and Privileges; the Clerk of
the House of Commons; and its Parliamentary Standards Commissioner.
The committee wrote to stakeholders inviting written submissions and received
six submissions. The committee would like to thank all those who contributed to
the inquiry. 
At the end of last year, having decided not to reach ‘a concluded view
on the merits of adopting a code of conduct’, the House Committee produced a
The discussion paper canvasses the nature of a proposed code; a process for its
implementation; the role of a Parliamentary Integrity Commissioner; a
complaints mechanism; the oversight role of a committee of members; possible
sanctions for breaches of the code; and procedural matters that would enable
the House to consider the recommendations of that committee, including the
question of sanctions for members who were found to have breached the code.
The House Committee made no formal recommendations about the adoption of
a code, but made observations on the desirability of different elements of the
code it put forward and the related enforcement mechanisms.
This committee has received much the same evidence as underpins the
discussion paper and does not intend to repeat that evidence at length. The
committee draws attention to the Background Note prepared by the Parliamentary
Library, ‘Codes of conduct in Australian and selected overseas parliaments’,
which is periodically updated and contains useful historical and comparative
information on the subject.
Codes of conduct for parliamentarians
It is appropriate that parliamentarians be judged against appropriate
standards in the performance of their duties as parliamentarians. That
statement is perhaps axiomatic; so obvious it needn’t be stated. But
difficulties arise in articulating what those standards should be; deciding who
should judge whether parliamentarians have met – or failed to meet – those
standards; and determining what consequences should flow from a failure to meet
In many areas, in fact, such standards are set out in law and in
procedures of the parliament. These range from provisions in the Constitution,
through the ordinary civil and criminal law, in other laws directed
specifically at parliamentarians or otherwise applicable to those holding
public office and in procedural rules of the parliament.
Many of those provisions have been developed to address ethical
questions around, for instance, the avoidance of conflicts of interest, the
integrity of the parliament’s processes, the abuse of public office and the
proper use of entitlements. Importantly, the existing provisions governing the
conduct of senators carry significant sanctions for non-compliance (ranging
from admonishment to fines and terms of imprisonment). Furthermore, they can be
enforced by the Senate or the courts because of their specific nature.
These other questions, however, about the performance of
parliamentarians as parliamentarians are perceived to be
different and framed around somewhat elastic concepts, such as community expectations.
In those circumstances, what standards should apply and what consequences
should flow when they are not met?
In addressing these questions there is some appeal in the idea of
instituting a code of conduct, particularly at a time when the standing of
parliamentarians (and of the parliament itself) is reputed to be at such a low
ebb. But much of that appeal is superficial; and much of the debate surrounding
the adoption, implementation and supervision of such a code is based on
unrealistic expectations of what conduct such a code could address and what
such a code could achieve.
Against this background the committee is asked to consider the
development of a code of conduct and surrounding mechanisms. In this report the
- whether implementing a code of conduct is the right approach;
- whether the code proposed by the House Committee is the right
- whether the implementation and enforcement arrangements
recommended by the House Committee to accompany its code are appropriate.
In doing so the committee has attempted to ask whether these measures
are likely to improve the perceptions of parliament or, indeed, parliamentary
Aims of the inquiry
The catalyst for the current inquiry lies in the agreements struck
between parliamentary parties and, in some cases, independent members of the
House of Representatives prior to the current minority government being formed in
the House of Representatives in September 2010.
Each of those agreements – directly or indirectly – provided for the
development of a code of conduct for members and the appointment of a
Parliamentary Integrity Commissioner to, among other things, ‘uphold’ the code.
The discussion paper quotes the Leader of the House, in proposing the
reference to the House Committee, as follows:
It is the government’s hope and
expectation that the work of these committees and the eventual adoption by
parliament of a code of conduct for members and senators will make a positive
contribution to parliamentary standards and the standing of parliament in the
The aims of the process are spelled out in no more detail than that. Consequently
the committee’s consideration of the merits of implementing a code is not
guided by particular examples of the sorts of conduct which are sought to be
addressed, which makes it difficult to assess whether a code of conduct is the
right approach to addressing them. The committee considers the Senate should
not adopt a code of conduct unless it is meaningful and workable, and can be
reasonably expected to be effective.
Threshold question: Should there be a code of
The threshold question asked in the House Committee’s discussion paper
is ‘Should there be a code of conduct?’ In chapter 3 the discussion paper rehearses
the familiar arguments for and against.
The House Committee makes no recommendation on the matter, but observes:
The competing arguments identified
in relation to implementing a code of conduct raise serious issues which are
deserving of careful consideration. The overall standing of the Parliament and
parliamentarians in the community is not as strong as would be desirable, and
there is a range of factors involved in those perceptions. A code of conduct
for members is not a panacea for a dramatic change in the overall perceptions
about parliamentarians. However, it could make a modest contribution to an
improvement in perceptions.
Arguably, however, that question – should there be a code? – is the
wrong threshold question. If the answer is posed in this way, lack of support
for a code of conduct is too easily equated to lack of support for an
improvement in standards. Conversely, if the question is answered ‘yes’ that leads
– perhaps inevitably – to the conclusion that the federal parliament should
adopt a code of conduct similar to one of the codes applying at state level or
in another comparable parliament overseas.
The difficulty the Senators’ Interests Committee has with this approach
is the paucity of evidence that the codes of conduct applying in other Australian
jurisdictions have done anything to improve community perceptions. Several
state parliaments have now had codes of conduct in place for many years.
Although members and officials from some of those jurisdictions have reported
their opinion that standards have risen or that conduct has improved, it has to
be doubted that the public perception of those parliaments and of their
members has improved.
The model in the discussion paper for considering complaints and
enforcing the code of conduct draws heavily on the model employed in the UK
House of Commons, yet nothing in the code or in the enforcement mechanisms was
able to prevent the recent scandal over misuse of members’ allowances.
In his submission to the inquiry the Clerk of the Western Australian
Legislative Council observed:
Any decision to adopt a code of
conduct must surely be based on history and the effectiveness of such codes...
In my view no jurisdictions with codes of conduct have seen any demonstrable
improvement in conduct of members or compare more favourably against those
jurisdictions that have not adopted codes...
If the Senate adopts an aspirational
code it will indicate to members the fundamental duties and standards which
they should observe. However, I doubt a code will have any significant impact
on the media’s portrayal of or the community attitude towards members of
Parliament as a whole.
The committees received similar evidence from Professor Gerard Carney at
...I agree, it will not improve the
public image of integrity in political life. That is often argued as the
fundamental reason for a code of conduct. But I think the main reason is that
it brings together what is existing, it guides members and it also guides the
public as to the scope of those obligations.
In the committee’s view, there is little objective evidence that such
perceptions have improved in relation to the state parliaments which have
adopted such codes, and the committee is hesitant to recommend that the Senate
go down the same path.
The committee considers that the matter has been raised the wrong way
around. It is assumed that a code of conduct is the answer. The questions then
become about the nature, the content and the implementation of a code. The
focus on perceptions of the parliament and on the form and function of a code
in some ways distracts from the underlying questions that might instead be asked:
where are standards deficient and what specific measures should be adopted to
address them? Reform of areas such as potential conflicts of interest, proper
accountability for entitlements and the appropriate scope of the powers and
privileges of the parliament followed this model of identifying and addressing
the particular problems.
Nonetheless, the committee has been asked to look at the development of
a possible code of conduct, and that is discussed in the next section of the
Possible code of conduct models
Codes of conduct are generally described as ranging from those which set
out general standards of ethical conduct to those which prescribed specific and
detailed rules pertaining to particular situations. These two models are
sometimes differentiated as ‘principles-based’ and ‘rules-based’.
Another way of describing the range of possible codes of conduct is
between ‘aspirational codes’ and ‘enforceable codes’. In subscribing to the
first kind, parliamentarians ‘aspire’ to meet stated ethical standards. The
second kind contains enforceable provisions, which are usually supported by
mechanisms for investigating breaches and imposing penalties.
In addressing the arguments for and against a code of conduct Professor
Gerard Carney identifies the underlying characteristics of the different types
Opposition to a code of conduct is
based primarily on three grounds: a code only states the obvious in terms of
ethical standards; it may encourage attacks on the integrity of members; and as
a gimmick, it can only increase public cynicism of the political system. On
the other hand, quite substantive grounds support a code of conduct depending
where along the aspirational/prescriptive spectrum it lies. An aspirational
code at least reminds members of the fundamental duties and standards which
they must observe. It also provides a role model for others engaged in public
service. These benefits are notably enhanced with more prescriptive codes.
Their specific standards provide better guidance to members in a range of
ethical dilemmas. At the same time, they allow the conduct of members to be
more objectively assessed ... While a code of conduct may bolster public
confidence, an enforcement regime is usually needed to make any significant impact.
Codes of conduct with clear and specific rules can be objectively
enforced but they have been criticised because they may promote a mentality of
Conversely, if a code of conduct is merely principles-based, and
therefore incapable of objective enforcement, the inevitable question to be
asked is whether they serve any useful purpose because:
... advisory codes can become as
elastic as the circumstances require and their application is invariably
determined by political realities. On the other hand they can contribute to
setting standards for making judgements about what behaviour is or is not
In fact, most parliamentary codes of conduct are hybrids, combining some
general principles but also making some specific requirements, most frequently
relating to avoidance of conflicts of interest and proper use of parliamentary
entitlements. This combination is frequently achieved by including as a
principle the fact that parliamentarians must meet detailed procedural or legal
requirements relating to those issues.
Many Australian state and territory Houses have adopted some form of
code of conduct for their members.
These codes of conduct generally follow a principles-based model, in that they
do not set any specific standards capable of rigorous enforcement other than by
reference to existing, enforceable regimes. For example, the Clerk of the
Legislative Assembly for the Australian Capital Territory noted that the code
applying to members in the ACT:
...is aspirational in nature in that
it doesn’t set out particular penalties for breaches, nor a process for
investigating non-compliance, but instead exhorts members to live up to the
spirit of its contents and to observe certain expected standards of propriety
That code has recently been the subject of an independent review which
recommended refinements to the code but no fundamental changes in approach.
Legislated codes of conduct in Victoria and the Northern Territory are also
largely aspirational in nature.
The Queensland Parliament’s Code of Ethical Standards might be termed a
hybrid, in that it provides a single document containing all of the rules
governing the conduct of members which exist in a variety of sources.
The rules are organised in accordance with six fundamental principles:
- integrity of the Parliament;
- primacy of the public interest;
- independence of action;
- appropriate use of information;
respect for persons; and
appropriate use of entitlements.
The two codes of conduct of the New South Wales Parliament are uniquely
linked to the Independent Commission Against Corruption Act 1988, by way
of a provision which includes ‘a substantial breach’ of the codes in the Act’s
definition of corruption.
At the roundtable, Professor Carney told the committees that he saw the
value of a code of conduct for parliamentarians in bringing together all the
existing obligations applying to them:
There are corruption offences,
register of interest requirements, political donations requirements, standing
orders, privileges—there is an enormous array of obligations. A code of conduct
provides an opportunity to collate that material, to summarise it, and to
provide a neat source to access that. You have a general statement and then
other documents which back that up with the specific rules. It’s not as though
members of parliament are not already subject to a whole range of
obligations—they are. A code of conduct provides a vehicle to remind them, as
well as the public, that these obligations already exist and to put it into
some useful form.
The committee sees the value in this kind of approach: in bringing
together the raft of existing provisions and obligations, and publishing them
as a frame of reference both for parliamentarians and for members of the public
against which anyone may make their own judgements about how well
parliamentarians are meeting these requirements.
The committee is hesitant, however, about describing the overall
framework document as a ‘code’, because in many people’s minds that connotes an
enforceable regime whereas, in the committee’s view, many of the general
principles which would exist within such a framework are not objectively capable
Enforcement of codes of conduct
The committee heard evidence at the roundtable that aspirational codes
cannot be strictly enforced, and are not intended to be strictly
For the guidance of members or the
guidance of the public it is a useful mechanism for education and a reminder...
But can I just say: the code I am talking about is not an enforceable code. It
is just a statement of the general principles which underlie the regime that
you already have in place. 
The committee considers, however,
there is a great likelihood that people seeing a thing called a ‘code’ –
whether it is aspirational or not; whether it is capable objectively of being
enforced – will tend to expect that it will somehow be applied and enforced.
The committee does not consider that a broad, principles-based code –
what has sometimes been called an ‘aspirational code’ – is inherently
problematic. However, the committee considers that intractable problems arise in
attempting to enforce them, without regard to the inherent difficulties in
interpreting these rules.
In coming to this view, the committee has reflected in part on an
inquiry of the Finance and Public Administration Legislation Committee in 2001 into
a number of bills broadly in the area of political and ethical regulation. In
evidence before that committee, former Clerk of the Senate, Harry Evans,
identified ‘two traps’ in the area of ethics regulation:
... prescribing rules of
insufficient precision—vague, imprecise rules and what are usually called
motherhood statements—and then attempting to enforce them, with a great deal of
room for dispute about their meaning and application...
I do not think vague and general
statements such as ‘members will be honest in their dealings’ and so on are
very helpful, particularly when you combine them with some enforcement mechanism
whereby some, as I have put it, inquisitor-general, is going to say whether a
member has breached such a guideline.
The committee considers that any further consideration of a code of
conduct needs to take account of the inherent difficulties in seeking to
enforce codes consisting primarily of general principles.
Content of the code proposed by the House
As the motion referring the matter asked the committee to consult with
the House committee with a view to developing a uniform code, it is necessary
for the committee to comment on the observations made in that discussion paper.
The House Committee, without recommending its adoption, included its
preferred model for a code of conduct in Appendix 5 of its discussion paper.
The draft code is based on the draft ‘Framework of Ethical Principles for
Members and Senators’ produced in the mid-1990s.’
As noted above, evidence put at the roundtable held by the two
committees as to the most appropriate kind of code of conduct, should one be
adopted, favoured the idea of a code as an overarching framework document
comprising a collection of relevant principles, referencing the specific
requirements which apply in particular areas.
The arguments in favour of a code of this nature revolve around:
gathering regulatory provisions in one place to ensure
parliamentarians are aware of their obligations;
- articulating the standards the public should be entitled to
expect of parliamentarians; and
identifying and filling ethical gaps.
This approach is also identified in the House Committee’s discussion
...there are already many rules which
apply to the various aspects of a Member’s life as a parliamentarian, which
could at best be described as a collection. An express code of conduct could
overcome any gaps there may be in the existing ethical requirements, put
principles in place and consolidate the rules, thereby providing a useful,
structured statement in relation to members’ conduct.
How well does the code proposed by the House Committee meet these aims?
The discussion paper addresses the first requirement by suggesting that
a note be appended to the code setting out those other obligations. The Senators’
Interests Committee considers that it would be preferable to demonstrate the
connection between the principles being articulated and the specific rules which
are related to them. As has been noted, the committee sees value in an approach
which brings together the existing obligations of senators in a meaningful and
methodical way, in order to give people a frame of reference from which to make
their own judgements.
Of some concern to the committee is the highly subjective nature of some
of the principles contained in the code. Members must be ‘loyal to Australia
and its people’ [principle 1]; ‘strive to maintain the public trust placed
in them’ [principle 4]; and ‘base their conduct on a consideration of the
public interest’ [principle 5]. These are worthy principles – for the most part
common sense tells each of us what they all mean – but there would be many
different views on what they encapsulate and it would be difficult to maintain
that they articulate objective standards.
People are also entitled to be cynical, if the complaint is of poor
parliamentary standards, of a principle that:
Members must ensure that their
personal conduct is consistent with the dignity of the Parliament.
The committee does not consider this language is particularly helpful as
a means of articulating standards, however useful it might be to
parliamentarians and others seeking an ethical framework to resolve questions
that come before them.
In this sense, the principles in the House Committee’s code reflect
their origin in the work in the mid-1990s of the Working Group to Develop a
Framework of Ethical Principles for Members and Senators. As noted in the
submission to the committee from the Clerk of the Senate:
It had been the intention of the
working party to develop a draft code of conduct for presentation to both Houses
for endorsement, with a view to it being available for use in seminars for new
members and senators in particular, and for the guidance of parliamentarians
generally. In developing a draft code of conduct, the working party had not
envisaged any formal enforcement mechanism. 
Should this kind of approach find favour in either House, a better set
of principles could no doubt be articulated. The committee considers that the ‘Nolan
Principles’ provide a better starting point for articulating the individual
obligations of parliamentarians. Those principles arose from the work of the UK
Committee on Standards in Public Life (the Nolan Committee). In her submission
to the committee, the Clerk of the Senate noted that ‘The Nolan Committee
proposed seven principles of public life: selflessness, integrity, objectivity,
accountability, openness, honesty and leadership’.
Appendix 2 to this report reproduces an expanded list of those principles.
For the above reasons, the committee does not endorse the code proposed
in the House Committee’s discussion paper.
Implementation of the proposed code of conduct
Each of the ‘parliamentary reform agreements’ mentioned above contained
a proposal for the appointment of a Parliamentary Integrity Commissioner to:
- provide advice, administration and reporting on parliamentary
- investigate and make recommendations to the Privileges Committee
on ‘individual investigations’ [on topics unspecified];
- provide advice to parliamentarians on ethical issues;
- uphold the Parliamentary Code of Conduct; and
- control and maintain the Government’s lobbyists register.
Following on from this, the terms of reference for the inquiry, in
effect, assume that:
- the code be of a kind which may be ‘breached’, and that a range
of people may lodge complaints about ‘breaches of the code’
a Parliamentary Integrity Commissioner must ‘uphold’ the code.
The committee is of the view that it is neither possible nor desirable
to implement a formal complaints procedure and engage a person to ‘uphold’ a
code unless the code in question is detailed, specific and capable of objective
interpretation. The committee does not consider that the code proposed in the
House Committee’s discussion paper meet these tests.
It is clear from the last three chapters of the discussion paper that
the House Committee favours oversight mechanisms involving a complaints
procedure, an investigative role for the Parliamentary Integrity Commissioner
reporting to a rebadged ‘Privileges, Ethics and Members’ Interests Committee’,
which can recommend a range of sanctions for the House.
The Senators’ Interests Committee sees a difficulty in combining a
highly aspirational code with a complaints and enforcement mechanism that is
more appropriate for specific, prescriptive rules. This difficulty is
recognised in the House Committee’s proposals by providing an independent
investigator with the power to filter out or dismiss complaints according to
stated criteria, for instance where complaints are frivolous or vexatious, or
The Senators’ Interests Committee is not convinced, however, that the
model proposed in the discussion paper is the right one, particularly because
of the somewhat artificial nature of the process by which complaints are to be
The process is based on the system in place in the UK House of Commons. The discussion
paper notes that:
The 2009-10 annual report of the UK
Parliamentary Standards Commissioner indicates that the overwhelming majority
of complaints, approximately 90 per cent, do not merit a final report to the
Committee on Standards and Privileges.
The committee considers this sort of approach – which effectively sets
aside 90 per cent of complaints raised – will do little to raise public
confidence in the code to which it relates.
Professor Carney told the committees that he favoured an independent
complaints process as a ‘necessary assurance to the public of what it’s all
but it seems to the committee his concern was to ensure that there was a
process for complaints to be raised about breaches of specific, enforceable
provisions in existing regimes:
... I think the breach of the code is
the breach of the individual obligations that you are already are subjected to
under those different regimes. They are the breaches, the technical ones, that
can lead to serious consequences. But if you have a general code that just
states general principles for the guidance and edification of members and the
public, a breach of those principles as such should not be the subject of a
complaint at all other than by reference to the regimes that are put in place.
In his view, other complaints could be raised – for instance with an
ethics committee – which would receive, but not investigate the matter further
unless it was a serious matter. The view was that serious breaches – breaches
of the specific provisions of existing regimes – would continue to be dealt
with in line with the contempt procedures of the relevant house. The committee
notes the high threshold for findings of contempt, which involves for instance ‘improper
interference with the free exercise by a House or committee of its authority or
A similarly high threshold should apply in relation to any formal
process for raising complaints of breaches of any code that might be adopted. The
committee considers this is best achieved by restricting formal complaints
processes to the enforceable provisions which apply in existing regimes.
Ethical gaps and emerging areas of concerns, as they are identified, should be
addressed by adopting specific measures relating to their regulation, not by
hoping that a general principle will suffice. The committee does not consider
that there should be a formal complaints procedure in relation to the
aspirational principles of such a code.
Perceptions of the Parliament and the operation of
the proposed code
As has been noted, the committee does not endorse adoption of the code
proposed in the House discussion paper, nor the complaints procedure attached
to it. The committee does not think these will provide a meaningful and
workable method of addressing parliamentary standards, and does not expect that
would be effective in improving perceptions of the parliament.
Perhaps the best way to assess the effectiveness of the proposed code
and its associated complaints mechanism in addressing public perceptions of the
parliament is to consider what it would not cover:
- allegations of criminal behaviour and other matters, which properly
should be dealt with by the legal system and by the courts;
- conduct of members before or after they were members, which are
generally beyond the jurisdiction of the parliament;
- conduct in the chamber, which (in the House Committee’s view) are
matters for the Speaker [and, in the case of the Senate, would no doubt be
matters for the Senate itself];
- policy matters or a member’s views or opinions; or
- handling of a decision about an individual case.
Realistically, however, the effectiveness of a code will be judged
against conduct in these areas.
Other observations in the discussion paper
The committee does not endorse the code of conduct contained in the
House Committee’s discussion paper, for the reasons set out above. Neither does
the committee endorse the complaints process proposed in the discussion paper.
Consequently, the committee does not intend to explore further the implementation
and enforcement mechanisms contained in the discussion paper except in relation
- the method of implementation of a code; and
- the role of a parliamentary integrity commissioner
Should the Senate nonetheless determine the need for a code of conduct
of the sort proposed by the House Committee, this committee concurs that such a
code should be adopted by means of a resolution of the Senate.
This would enable the Senate to ensure that the code could be implemented
consistently with parliamentary privilege and with the processes for investigating
Role of a Parliamentary
The committee does not endorse a specific complaints mechanism in
relation to the sort of code proposed by the House and therefore sees no need
for the appointment of a commissioner as investigator. The committee does,
however, see value in the Senate considering whether to appoint a person as an
ethics adviser, to provide advice to senators on ethical matters, including in
relation to conflicts of interest.
Should the Senate nevertheless determine the need for an investigator,
the committee does not consider that the adviser and the investigator should be
the same person. The committee accepts the position put by the Clerk of the
an inherent conflict between the provision of advice in relation to conduct and
the subsequent investigation of it. In his or her advisory role, for example,
the commissioner could effectively endorse or clear proposed conduct. That
conduct could then be the subject of a complaint and the commissioner, having
investigated it, might come to a different conclusion. The commissioner is
conflicted and the member has been treated unfairly by being penalised for conduct
which the investigating authority has previously cleared. If the investigation
cleared the member, doubt would nonetheless be cast on the integrity of the
process because the investigator would be perceived as compromised by the
advice previously given. There could be no confidence in such a system.
In 2010 and again in 2012 the Australian Greens have introduced a
National Integrity Commissioner Bill to provide for, among other things, the
creation of an office of Independent Parliamentary Advisor, with a range of
advisory and investigative powers. Should that bill proceed to debate that will
give the Senate an opportunity to consider the proper role of such a position.
Interaction with privilege law and practice
Although this committee and the Senate Privileges Committee were
authorised to consult on this matter, the two committees did not meet. Discussion
of relevant matters did, however, take place between the chairs of the two
This committee had envisaged a need for advice from the Privileges
Committee to ensure that the detail of any proposed code did not infringe the
law and practice of parliamentary privilege, and was compatible with the
Privileges Committee’s proper role in investigating possible contempts of the
Senate. As the committee is not recommending the adoption of a detailed code, formal
consultations have not to date been required. Should the Senate decide to
pursue the development of a code of conduct, it is this committee’s
recommendation that the formal advice of the Privileges Committee should be
The committee is not convinced that there is any objective evidence
showing that the adoption of an aspirational, principles-based code has
improved the perceptions of parliaments and parliamentarians in other jurisdictions.
Accordingly, the committee does not recommend that the Senate go down that
For the reasons set out above, the committee does not endorse the code
proposed by the House Committee. If the Senate nonetheless decides to pursue a
code of that nature, the committee has made some suggestions about the
structure of such a code.
As has been mentioned throughout this report, the committee does not
consider it necessary to put in place a formal code in order to better
articulate the standards expected of parliamentarians. The committee sees value
in bringing together the raft of existing provisions relating to the conduct of
senators and related obligations.
The areas covered by existing regimes would continue to contain specific,
enforceable provisions; whereas the general principles would provide a frame of
reference against which anyone may make their own judgements about how well
parliamentarians are meeting these requirements.
Parliamentarians are among the most scrutinised people in public life.
They are accountable to the parliament, scrutinised by their political
opponents (not always on the other side of the chamber!), by the media and,
increasingly, in social media. To suggest that parliamentarians escape without
sanction when they are subject to the will of the electorate, the scrutiny of
their fellow parliamentarians and the court of public opinion is to ignore the
realities of the Australian political system.
If the aim is an improvement in standards, the approach that has been
shown to work is to identify particular concerns and devise systems of
regulation that are appropriate to address them. An advantage of bringing these
provisions together in a structured way is the opportunity to identify whether
there are any gaps in the coverage of that framework, and then to make
decisions about how to properly address those gaps, with targeted measures,
rather than with a generic and largely unenforceable code.
against the terms of reference
development of a code of conduct
- The committee considers that the Senate should not adopt a code
of conduct unless it is meaningful, workable and reasonable likely to be
- The committee does not recommend that the Senate adopt the code
contained in Appendix 5 of the House Committee’s discussion paper.
- A better approach to improving parliamentary standards would be
- Consolidate the numerous provisions which regulate the conduct of
Identify any gaps in conduct or ethical matters; and
Implement specific measures to address those gaps.
- Complaints against specific provisions regulating the conduct of
senators are provided for in the Constitution, in legislation, in the Senate’s
privilege resolutions and in the contempt jurisdiction of the Senate.
- Parliamentary and media scrutiny of senators.
- Should any matters be added to the consolidated code, consideration
be given to what appropriate mechanisms should be added for their enforcement
(c) role of the
Parliamentary Integrity Commissioner
- The committee supports, in principle, introducing a mechanism by
which senators can receive advice in relation to ethical matters. The committee
considers that, however this is achieved, senators must retain personal
responsibility for their actions.
- The committee considers it undesirable that the roles of adviser
and investigator be combined.
- If a code is adopted, these should remain those which apply in
existing enforceable regimes under law and the procedures of the parliament or
specific new measures which might be developed
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