SECTION 2. ACCOUNTABILITY MECHANISMS – PROBLEMS & OPPORTUNITIES FOR REFORM
15. CODES OF CONDUCT
The PM’s current code of practice (the Statement on Ministerial Standards) articulates with the concerns for accountability and public trust. “The Australian people deserve a government that will act with integrity and in the best interests of the people they serve”.[i] However, like all previous codes, it fundamentally fails the Rule of Law in leaving decisions on whether there has been a breach of Ministerial Standards and the consequences of that breach in the hands of the PM. Here the PM is fundamentally and irredeemably conflicted because wrongdoing by ministers is likely to reflect upon the PM’s government. Seeking the advice of a Departmental Secretary whom governments can dismiss without notice and without reason[ii] cannot redeem that conflict. Investigations should be carried out by an “Ethics Commissioner” who should be chosen by the bi-partisan process for other for key integrity agencies and their officials (See section 14 above). The code should not be promulgated and altered by Prime Ministerial fiat. It should be drafted by a bi-partisan senate committee and be voted on by both houses of parliament. Once the content is taken out of the PM’s hands, it is reasonable to make it applicable to shadow ministers also.
More generally, a positive, ethical culture supportive of accountability should be fostered in both the House of Representatives and the Senate. This is a responsibility of every Member and Senator, who must respect the respective roles of Speaker of the House and the President of the Senate in enforcing it.
To help ministers, MPs and senior civil servants[iii] avoid breaches, an Ethics Counsellor (similar to the integrity commissioner[iv] established by the Queensland Parliament in 1999) should also be appointed. The Councillor should offer ethics training during the induction process and at regular intervals afterwards as compulsory and ongoing professional development for MPs[v], [vi]. The Ethics Counsellor should also oversee the registers of lobbyists and members’ interests’ and, most importantly, following the Queensland model to provide confidential advice on conflicts of interest and ethical issues which, if followed, avoids any future adverse findings of unethical conduct.[vii]
The code (or network of codes) needs to be more comprehensive in content (most notably workplace bullying and harassment (sexual or otherwise) and reach (covering all MPs, staffers and senior officials with any necessary modifications to reflect their roles). It also needs the authority of at least a resolution of each House of Parliament or, to give it greater legitimacy, an Act of Parliament. The features of a code of conduct for members of parliament are set out by the Commonwealth Parliamentary Association.[viii] The code must provide for rigorous investigation of allegations by the Ethics Commissioner who would be able to recommend to Parliament sanctions for proven unethical conduct breaching the code .
It is highly desirable that we should not merely look at avoiding unethical conduct but promote and reward high standards of ethical conduct. The ART Integrity Awards are presented to MPs or Senators who have demonstrated outstanding commitment to integrity over the previous term of Parliament. More generally, public awards and honours should only go to those who have demonstrated high standards of ethical conduct.
[i] Department of the Prime Minister and Cabinet, Statement of Ministerial Standards (30 August 2018).
[ii] Barratt v Howard [1999] FCA 1132.
[iii] The list of public officials who can be given such advice is very broad in Queensland – down to part time board members of public entities. There is no reason to limit it and there may be others to be considered (one example that is currently relevant is Royal Commissioners facing claims of potential or perceived conflict of interest.
[iv] To avoid confusion with the Commonwealth Integrity Commission, we do not recommend the use of the term ‘Integrity Commissioner’ for this office
[v] Lewis, Colleen, ‘Compulsory Professional Development for Members of Parliament’ in Colleen Lewis and Ken Coghill (eds), Parliamentarians’ Professional Development: The Need for Reform (Springer International Publishing, 2016) 101-119.
[vi] The UK House of Commons experimented with a voluntary two-hour online session aimed to raise awareness of unconscious bias (2020).
[vii] Sampford, Charles, ‘Prior Advice is Better than Subsequent Investigation’ in Jenny Fleming (ed), Motivating Ministers to Morality (Ashgate, 2002).
[viii] The Commonwealth Parliamentary Association recommends the appointment of an ethics adviser to provide confidential advice. See Coghill, K., Neesham, C., & Kinyondo, A. (2015). Recommended Benchmarks for Codes of Conduct Applying to Members of Parliament. In CPA Secretariat (Ed.). Retrieved from https://www.agora-parl.org/sites/default/files/agora-documents/Codes%20of%20Conduct%20for%20Parliamentarians%202016.pdf
Recommendation 16
Codes of Conduct: The code (or network of codes) needs to be more comprehensive in content (most notably workplace bullying and harassment (sexual or otherwise) and reach (covering all MPs, staffers and senior officials with any necessary modifications to reflect their roles). Breaches should be investigated by an “Ethics Commissioner” who should be chosen by the bi-partisan process for other key integrity agencies and their officials. The code should be drafted by a bi-partisan senate committee and be voted on by both houses of parliament.
To help ministers, MPs and senior civil servants avoid breaches; an Ethics Counsellor should also be appointed who can offer ethics training and ongoing advice.