Research Paper 2 1998-99

A Code of Conduct for Parliamentarians?

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:

• 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:

• 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:

Introduction

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:

This research reflected a stable attitude in the community towards parliamentarians, that Mackay had referred to a year before:

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:

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:

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:

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:

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:

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:

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

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:

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).

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:

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:

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:

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?

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:

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?

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,

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:

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

1. 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/
2. 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.
3. 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.
4. H. Mackay, Mind & Mood, Mackay Research Pty Ltd, Lindfield, Sydney, 1998, p. 39.
5. 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/
6. 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.
7. The Bulletin, 14 October 1997; The Roy Morgan Research Centre, Finding No. 3026, 14 October 1997. Available at: http://www.roymorgan.com.au/
8. The Roy Morgan Research Centre, Finding No. 2975, 25 February 1997. Available at: http://www.roymorgan.com.au/
9. '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.
10. 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.
11. M. Gordon, 'Revealed: The Liberal ''plot'' to get Paul Keating', The Age, 18 July 1998, pp. 1 & 4.
12. Deborah Hope, 'Inner State', The Australian's Review of Books, p. 25.
13. Ibid.
14. Nolan, Standards in Public Life, First Report of the Committee on Standards in Public Life, London, HMSO, Cm 2850-1, 1995, p. 104.
15. H. Mackay, op. cit., p. 63.
16. For example see, Commission on Government, Commission on Government, Report No: 3, Perth, Western Australia, 1996, p. 156, para. 7.1.1.3.
17. The Roy Morgan Research Centre, Finding No. 2997; published in The Bulletin, 1 July 1997. available at: http://www.roymorgan.com.au/
18. The Bulletin, op. cit., p. 32-37.
19. H. Mackay, op. cit., pp. 44-47.
20. 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.
21. 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.
22. 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
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. The Hon. J. Howard, Prime Minister: A Guide on Key elements of Ministerial Responsibility, Canberra, April 1996.
33. Ian Davis, 'Prosser trips over the code', The Canberra Times, 28 June 1997, p. 11.
34. Senate Standing Order 22A; House of Representatives, Resolution: Registration of Members' Interests.
35. 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.
36. Rosenthal, Drawing the Line: Legislative Ethics in the United States, University of Nebraska Press, Lincoln, 1996, pp. 53 & 59.
37. 'Power play on government documents moves to High Court', The Canberra Times, 16 June 1998, p. 2.
38. Members Integrity Act 1994, in Statutes of Ontario, 1994, Chapter 38. Available at: http://legis.acjnet.org/cgi-bin/
39. 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.
40. D.F. Thompson, Political Ethics and Public Office, Harvard University Press, Cambridge, Mass: 1987, p. 98.
41. Standing Committee on Parliamentary Privilege and Ethics, op. cit., para. 4.1.4, p. 30.
42. 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.
43. Standing Committee on Parliamentary Privilege and Ethics, op. cit., para. 4.2.8-4.2.11, pp. 38-39.
44. M.M. Atkinson and M. Mancuso, op. cit., pp. 1-18, at p. 16.
45. The Hon. G. Evans, op. cit., pp. 25-32.
46. The Hon. Bob Carr, Premier of New South Wales, News Release, 31 March 1998.
47. 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.
48. 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
49. 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.
50. R. Hawes, 'Guardian of MPs' conduct overdue', The Australian, 4 July 1997, p. 2.
51. Senate Standing Order 22A; House of Representatives, Resolution: Registration of Members' Interests.
52. J. Braithwaite and T. Makkai, 'Trust and Compliance', Policing and Society 4, 1993, pp. 1-12.
53. Brien, 'Professional Ethics and the Culture of Trust', Journal of Business Ethics, 16, forthcoming: 1998.
54. 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.
55. 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.
56. 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.
57. Commission on Government, op. cit., pp. 88-108, at p. 92.
58. 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.
59. 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.
60. 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.
61. Standing Committee on Parliamentary Privilege and Ethics, op. cit., pp. 39-40, para. 4.2.15-4.2.16.
62. 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.
63. Graham Richardson, Whatever It Takes, Transworld, Sydney, 1994.
64. Marian Wilkinson, The Fixer: The Untold Story of Graham Richardson, William Heinemann: Melbourne, 1996, p. 385.
65. The Hon. G. Evans, et al., op. cit., pp. 25-32, at p. 25.
66. L. Fuller, The Morality of Law, Rev. ed., Yale University Press, New Haven, 1969, p. 39.
67. 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.
68. Ibid., p. 39.
69. D.F. Thompson, Political Ethics and Public Office, Harvard University Press, 1987, Cambridge, Mass: p. 109.
70. 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
71. 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.
72. The Hon. Bob Carr, op. cit., 31 March 1998.
73. The Hon. G. Evans, et al., op. cit., 1995-1996, pp. 25-32.
74. 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/
75. 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
76. Standing Committee on Parliamentary Privilege and Ethics, op. cit., pp. 26-27 paras 3.11.1-3.11.6.
77. See A. Brien, 'Regulating Virtue: Formulating, Engendering and Enforcing Corporate Ethical Codes', Business and Professional Ethics Journal 15, 1997, pp. 21-52.
78. 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.
79. D.F. Thompson, op. cit., p. 108.
80. Standing Order No. 150.
81. Standing Order No. 149.
82. 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
83. 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.
84. The Hon. G. Evans, et al., op. cit., pp.25-32
85. Commission on Government, op. cit., p. 155.
86. D.F. Thompson, op. cit., pp. 99-100.
87. 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.
88. Brien, op. cit., pp. 21-52.
89. 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/
90. The Hon. G. Evans, et al., op. cit., pp. 25-32, at p. 29.
91. N. Preston, Ethics for the Public Sector, Federation Press, Sydney, 1994, p. 1.
92. See, Plutarch, Lives.
93. See, Republic; Laws.
94. See, Nicomachean Ethics; Politics.
95. 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.
96. Queensland, Electoral and Administrative Review Commission Report on the Review of Codes of Conduct for Public Officials, Brisbane, 1992, p. 149, para 7.22.
97. 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.
98. Joint Standing Committee on Electoral Matters, The 1996 Federal Election, Parliament of the Commonwealth of Australia, Canberra, 1997, p. 144.
99. Ibid., p. 126.
100. Ibid., pp. 127-129 & p. 144.
101. 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.
102. 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/
103. 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.
104. 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.
105. 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.
106. The Hon. G. Evans, et al., op. cit., pp. 25-32, at p. 25.
107. C.J. Mason, Australian Capital Television v The Commonwealth, 1992, 177 CLR 106, at p.
          137.
108. J. Dean, Theophanous v Herald and Weekly Times Ltd, 199394, 182 CLR 104, at p. 183.
109. 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

1. 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.

2. 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.

3. 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.

4. 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.

 

5. 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.

6. 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.

7. Personal Conduct

Members and Senators must ensure that their personal conduct is consistent with the dignity and integrity of the Parliament.

8. 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.

1. The House Magazine, 5 July 1995, p. 26.

Appendix 2

Draft Code of Conduct for Elected Representatives (Queensland Electoral and Administrative Review Commission, 1992)

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The Code of Conduct for Elected Representatives

1. 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.

2. 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.

3. 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.

4. 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.

5. 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)

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The Code of Conduct for Members of Parliament

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

Integrity

Objectivity

Accountability

Openness

Honesty

Leadership

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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

1. 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)

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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]

1. 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

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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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

1. Released by the Premier of NSW, Mr Carr, on 31 March 1998.

Appendix 6

Proposed Administration Procedure for a Code of Conduct(1)

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

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