Lavarch, Michael --- "Politicisation of Ethics" [1998] ALRCRefJl 6; (1998) 72 Australian Law Reform Commission Reform Journal 27

• Reform Issue 72 Autumn 1998
• By Michael Lavarch*

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Reform Issue 72 Autumn 1998

This article appeared on pages 27 – 29 & 75 of the original journal.

Politicisation of Ethics

By Michael Lavarch*

For two weeks in February 1998 Canberra’s Old Parliament House hosted 152 Australians debating the form of a republican government that Australia might adopt. The Constitutional Convention was successful as an exercise of democracy and national maturity, but less successful as a forum to unite the advocates of change.

In broad terms, opinion at the Convention fell into four categories. Status quo monarchists and three groups of republicans conveniently dubbed micros, minis and maxis.

The distinctions between the republicans had, at their essence, different views about the extent of change needed to improve public confidence in the system of government. Maxi republicans believe significant change to the parliamentary system is called for, while mini republicans consider such proposals to be undesirable or unachievable.

Those advocating reforms to support and enhance ethical practices in the political process encounter the same experience. Everyone agrees political institutions and processes should be guided by ethical principles, but there is considerable division about the desirability or achievability of particular reform proposals.

This paper examines the current law and practice guiding parliamentarians and argues these approaches are too narrow and limited in scope to really be of much value. It goes on to warn that the politicisation of ethics is a more likely outcome than ethicisation of politics.

Current law and practice

The legal framework governing members of parliament is the starting point to understand the role ethics play in politics. While laws vary from State to State, the Commonwealth position indicates the general regime. The basic rules are contained in the Constitution, the Electoral Act and the Crimes Act.

In short, these laws provide a member of parliament:

• must owe allegiance only to Australia;

• must not commit any crime punishable by sentence for one year or longer;

• must not be a bankrupt;

• cannot hold any office of profit under the Crown;

• cannot have a direct or indirect pecuniary interest in any agreement or contract with government; and

• cannot be convicted of bribery or other electoral offence of this type.

At the State level there are similar provisions related to corruption of politicians. For instance, sections 59 and 60 of the Queensland Criminal Code create specific offences relating to a member of parliament receiving a bribe or a person seeking to influence an MP by giving a bribe.

Evolution of ethical standards

This legal framework for ethical standards was developed last century. Its focus on the conflict between personal financial interests and public duty has remained the core of the ethics debate. The onus in the law is on the individual identifying, avoiding and resolving conflicts of interest.

The most obvious measure to avoid conflict is in the rules of the parliament. Standing orders for the House of Representatives provide that a member shall not vote in a division on a question in which he or she has a direct pecuniary interest. This rule, which flows from practice in the House of Commons, has equivalents in each State.

Not surprisingly, the first of the modern reforms to the mechanisms to assist ethical standards also directly relate to financial conflict of interest. In 1974, the Commonwealth parliament appointed a Joint Committee on Pecuniary Interests of Members of Parliament. From this committee’s report and State equivalents came the adoption of pecuniary interests registers by Australian parliaments over the next 15 years.

At the federal level, a confidential register of ministers’ interests has been held by successive Prime Ministers since 1978. This was extended to all members of the House (but not the Senate) in 1984. Members are obliged to disclose shareholdings; family and business trusts; real estate; directorships; liabilities; assets over $5000; substantial sources of income; gifts over a specified value; and memberships of organisations.

The pecuniary interest register operates on the philosophy that sunlight is the best disinfectant for financial conflict.

Codes of conduct

In Victoria, the requirement for a disclosure to parliament of pecuniary interests is to be found in the Members of Parliament (Register of Interests) Act 1978. This Act embodies the pecuniary interest register as a part of a code of conduct of members.

The code provides:

• acceptance that a member’s prime responsibility is to the performance of their public duty, which is not to be endangered by involvement in conflicting private interests;

• ensuring conduct does not bring discredit upon the parliament;

• no advancement of private interests by use of confidential information gained in the performance of public duty; and

• no private payment to be received for being a member of parliament.

The Victorian provisions are an early example of the use of codes of conduct. Generally they relate solely to members as legislators and separate ministerial codes apply to those involved in the executive government. Notably, however, the Victorian code has two points that relate only to members who are ministers.

Mostly the codes have concentrated on the issue of financial conflict of interest. In more recent times, the codes have adopted a broader approach and become more aspirational in nature.

For instance, the ‘Seven Principles of Public Life’, embodied in the code adopted in 1995 by the UK House of Commons, are:

selflessness - holders of public office should take decisions solely in terms of public interest. They should not do so 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 and 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 it;

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.

The Tasmanian code is similar to the UK, while the NSW code is essentially financial with some broader statements of principle. The Members Ethics and Parliamentary Privileges Committee of Queensland is currently working on a code for that State.

No equivalent exists at the federal level, although a parliamentary working group recommended adoption of a code in 1995. This code contained eight principles, namely: loyalty to the nation and regard for its laws; diligence and economy; respect for the dignity and privacy of others; integrity; primacy of the public interest; proper exercise of influence; personal conduct; and additional responsibilities of parliamentary office holders.

Can codes work?

To date codes of conduct have focused largely on financial conflict and the individual responsibility of politicians to act ethically. While there is increasing reference to the integrity of the parliamentary system, the scope is quite narrow.

The utility of such codes is highly questionable. This is because politicians do not operate in some parliamentary vacuum, but in a world dominated by industry and sectorial interests, powerful media, party structures and combative personality based debate.

The codes fall short because they do not address the ethical paradigm in which politics operates. They are viewed by politicians as either meaningless platitudes or hurdles on which to stumble and then be attacked by opponents.

During its two years in office, the Howard government has faced considerable political difficulty over ministers failing to match the Ministerial Code of Conduct. Several ministers and parliamentary secretaries have resigned because of the failure to divest themselves of shares in companies doing business within ministerial portfolio areas. These failures were all the more damaging because of the emphasis Mr Howard placed on improving parliamentary and ministerial standards during the 1996 election campaign.

The code became a rod for the government’s back and was later avoided by adopting black letter interpretations when the prospects of further ministerial casualties became too high a political price.

Throughout this period, the opposition treated the ministerial code as a political opportunity to be grasped. Pecuniary interest declarations were poured over to identify political conflicts between shareholdings and other assets and a minister’s policy and decision making responsibilities.

As Preston¹ points out, when ethics become yet another political weapon they lose moral authority. Codes face the real danger of being viewed as too much trouble, tripping up honest people with technicalities.

The response may be to move away from codes or have them drafted as express obligations rather than broad principles, which an artful opponent can turn into a weapon in unforeseen circumstances. In any event, the sanction view of ethics is not conducive to genuine cultural change in political institutions.

What might be needed is an expansion of the scope of political ethics. It may well be that political ethics have to be far more encompassing than members of parliament. Politicians are but part of a much larger process and the interrelationships in the political process need to be explored.

An analogy might be drawn from the way in which disclosure requirements have extended into donations to political parties. These laws recognise the relationship between funding of political parties and policy process. It doesn’t target individuals but institutions. It enhances a culture of accountability both at a political and corporate level.

Institutional support

If ethics is to be viewed by politicians as something more than a problem to be avoided or a club to beat an opponent, then it must not be left to individual discretion. It must be given meaningful institutional support. This raises questions of who and how.

Support for ethical standards must be provided by the parliament, possibly in the form of an adjunct to the committee system. Proposals have included the use of ethics counsellors or the inclusion of non-parliamentarians on ethics committees.

This debate is at an early stage and will evolve. A word of caution is that not too much store should be placed on ethics improving public confidence in the political process. To this end, the ethics debate, like the republican debate, could place too high an expectation on what it will achieve. Failed expectations lead to disillusionment and our political system does not need any more disillusionment.

* Michael Lavarch is Special Counsel at Dunhill Madden Butler in Brisbane. He was the federal Attorney-General with the Labor government between 1993-96, when he initiated the Australian Law Reform Commission’s reference into the adversarial litigation system.

End-notes

1. Preston, N. (1997) Regulating Virtue in Political Practice, AAPAE Conference Paper