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Constructing
Legislative Codes of Conduct*Meredith Burgmann Today I will be
talking about the way in which we in the Legislative Council in New South Wales
went about constructing a code of conduct, why we were asked to do that, and what
the problems were along the way. I want to start by talking about the big
issue in Canberra at the moment, which is the way in which a ministerial code
of conduct keeps changing. I see a ministerial code of conduct as quite different
to an ordinary member's code of conduct, in that a ministerial code of conduct
is quite specifically about conflict of interest—meaning mainly financial
interest. That sort of code is much less problematic than a backbencher's
code of conduct, because there are a whole lot of other issues that come into
a backbencher's code of conduct. A ministerial code should simply say: `You should
have no financial interests that can in any way conflict with anything you do
as a minister', and there's no point in just changing the rules as more and more
of your ministers get caught in it. Basically, if you are taking on public office
to some extent you end up with less rights than a normal member of the public,
and you've just got to cop it, even if it means that your spouse gets less rights
as well. I remember once reading an article about Bob and Helena Carr,
and they were sitting in their very beautiful house, which is in his electorate,
in Maroubra. The house has 180-degree views over the sea, and right in the middle
of the view is this very ugly telegraph pole. Bob Carr commented to the journalist
that if he were anyone other than the Premier of New South Wales, he'd be able
to pay to get that pole removed. And it's true—you can always pay to get
telegraph lines put underground, but as Premier of New South Wales he actually
had to give up that right, because it would have been seen as some extra sort
of perk that he got as a politician. My view about ministers is that yes, you
do give up rights when you become a minister. And one of those rights may well
be the right to make a lot of money in, say, a mining venture, when you're the
Minister for Mines. So I don't want to talk about ministerial codes of
conduct. We have a separate ministerial code of conduct in New South Wales which
I had nothing to do with developing. I think it is a good code and needs to be
adhered to strictly. What I'm talking about is the general code of conduct for
members of parliament. The New South Wales Legislative Council's code of
conduct arose out of the so-called Greiner/Metherall affair. For those of you
who are young, in the early 1990s, the then Premier, Nick Greiner, had a recalcitrant
backbencher, Terry Metherall, who had resigned and become an independent and who
was voting against some government legislation. Mr Greiner wanted to get rid of
him, so he was found a job in the public service, and this was considered scandalous.
It was in fact not only unethical, but may have been illegal. It was found not
to be, on appeal. But that's how the Independent Commission Against Corruption
(ICAC) was brought into the issue, and in 1994 an amendment to the Independent
Commission Against Corruption Act was moved by the independents in the lower house.
This amendment had two aims: first, it sought to expand the definition
of corrupt conduct of ministers and members as presented in the existing Act;
and secondly, it called for the establishment of an ethics committee for each
house, whose duties would include the development of draft codes of conduct for
members of the house. When this bill came to the Legislative Council however,
the Council took the view that there shouldn't be community members on the ethics
committee. The committee that was envisaged by the independents' amendment had
three community members on it. The Legislative Council took the view that they
were elected to represent the community, and why should there be another set
of community representatives? Although I didn't particularly agree with that view
at the time, when I saw the community representatives I realised they had been
chosen by politicians too, so they were no more representative of the community
than we were. So that's how we ended up with two committees. The lower
house one, which had the community representatives on it, and the upper house
one, where—instead of setting up a new committee—we just changed the
Privileges Committee to the Privilege and Ethics Committee. I ended up on that
committee, in a strange way. No one was interested in the slightest in being on
a committee called the Privileges Committee (as it was then) because it wasn't
a paid position. I thought it sounded interesting, so agreed to do it. Shortly
after that it also became the Ethics Committee, and shortly after that it became
incredibly powerful and important—and paid. Everyone was in fact quite cranky
that I'd volunteered to do a job that was low-status and no one wanted. It became
incredibly important because we then embarked on the Franca Arena inquiry, which
took almost two years, and I won't tell you how much it cost—but small third-world
governments could live on it. The first job this committee had was to produce
a code of conduct. One of the problems that faced us when we went about trying
to work out how politicians should behave was that the public thought we behaved
terribly. My view is, even if the Greiner/Metherall affair had not occurred, the
New South Wales Parliament would have eventually been called upon to adopt a code
of conduct, because codes of conduct are now widely expected in the community
and are being developed and enacted worldwide. I always say that in the 1980s
everyone was doing mission statements, and in the 1990s everyone is doing codes
of conduct. If you look at what the public think of politicians, you realise
we need a code of conduct. In a recent poll in which citizens were asked the question:
`Which person do you believe would tell you the truth?' nurses scored 87 percent
and politicians scored only 12 percent—but what was really galling was that
police scored 55 percent. The one bit of joy I got out of it was that journalists
actually scored lower than us. But when only 12 percent of people believe that
politicians tell the truth, we have a problem. My view is that politicians actually
feed into the problem, and I'll talk about that as I go along. Codes of
conduct in the legislative sphere are problematic. They have their limitations
and clarity is needed regarding the purposes and type of code to be adopted. For
instance, should the code aim to provide members with a frame of reference for
making decisions that involve competing values? Someone said that we should have
in our code a statement that every decision that we make should be in the public
interest, and I—as an ex-academic—said no. What is the public
interest? How on earth could you have a code that said decisions you make should
be `in the public interest'? Because I can assure you that the public interest
that I stand for is a very different public interest than the one David Oldfield
stands for. There is no such thing as the public interest, in fact, so I was very
clear that I wanted all that absolutely meaningless rhetoric out of the code of
conduct. Alternatively, should it attempt to provide detailed statements
of the conduct required of members in all conceivable situations? Then again,
there's a middle path, as our proposed code suggested, and I'll just quote a part
of our report, which was good and solid. This is only the first volume; there
are two volumes of report on our code. The Committee believes that the
code of conduct has an important role to play in combination with other factors.
In particular, it considers that, combined with an effective program of ethics
training and induction, the code of conduct will heighten members' awareness of
ethical issues, such as conflicts of interest. Secondly, combined with
appropriate tools, such as a casebook of specific examples, illustrating the principles
embodied in the code, the code will provide guidance in areas where members are
uncertain or confused as to the nature of their ethical obligations. Thirdly,
combined with an effective enforcement mechanism, which is applied fairly and
in a non-partisan manner, the code of conduct may enhance public confidence in
the institution of parliament by demonstrating that members of the Legislative
Council are accountable for their conduct. And fourthly, combined with
strong accountability mechanisms in other areas of political life—for example,
an effective legislative committee system, and continuing public debate concerning
the nature of members' roles and responsibilities—the code of conduct may
contribute to the enhancement of ethical standards. My view is that none
of those things have happened. We tried to get both the Legislative Assembly and
the Legislative Council committees to adopt the same code. Regretfully, in the
process of trying to get them to adopt the same code I discovered that the great
divide in parliament is not between Liberal and Labor, it is between the upper
house and the lower house, although I'm told it's not as bad in the federal parliament.
Certainly in New South Wales it's trench warfare. Not only could we not
get the same code, but the real battle came down to how the code should be implemented.
Our committee supported an outside commissioner for ethical standards, or a conflict
of interest commissioner, whereas the lower house committee continually supported
what I call a `catch-and-kill-your-own' model—that is, an in-house committee
that deals with what may or may not be an ethical breach. Why did our committee
come to the conclusion that we needed some sort of outside person or body in order
to regulate parliamentarians' behaviour? My view was that a parliamentary committee,
which seemed the other alternative, was nearly always going to end up voting on
party political grounds. And not only could delicate issues be trampled on during
an unseemly party political brawl, but you could get the alternative, a conspiracy
of silence arising out of all sides having something to hide. I just felt that
an outside person would be more appropriate. We looked at how outside ethics
commissioners have operated in other countries, and the place that I liked best,
in terms of its model, was Saskatchewan, which is a very cold province of Canada,
and which has had socialist governments for most of its history. When I asked
why they kept having socialist governments, they said it's so cold we all have
to stick together. But they have this excellent code of conduct and an excellent
ethics commissioner model. Being of a suspicious nature, my view was that the
places with the best codes of conduct always got them arising out of a terrible
scandal, and I asked what terrible scandal occurred to have their code of conduct
arise? They said, `Oh, nothing'. And it was only some time later I discovered
that the Attorney-General had murdered his wife, and hence the code of conduct
(although one would have thought that that was probably just considered illegal,
rather than unethical). The option of having an ethics commissioner with
a capacity to receive public complaints, to investigate and then to sanction or
enforce discipline against ethics breaches, is clearly important. When our committee
looked at models of implementation, we came across the classic problem of how
to establish an outside commissioner who could not only advise, which is one of
their most important roles, but sometimes also arbitrate. These dual roles obviously
have the potential for conflict. If you go to someone to ask for advice on a course
of action, and then you follow that course and it's not right and it comes back
to him or her for judgement, then that's a classic legal problem. You cannot sit
in judgement on something you have already advised on. In the United States,
where an enormous bureaucracy has sprung up around the ethics committees—and
they have two ethics committees in the States too, one for the lower house and
one for the upper house, and I suspect that also arose out of the sort of problems
we had in our house—one of the problems is that it has split into two divisions
to reflect this dichotomy of roles. One arm does not know what the other arm has
done. Perhaps a better solution would be to have two commissioners; one who provides
advice and one who may eventually arbitrate on the facts. Certainly closer consideration
of the powers of such commissioners is needed. I might also say that it's proving
very hard to find one. Ours has just resigned and we're still trying to find another
one. The other model, of course, is the `catch-and-kill-your-own' model,
which is favoured by most legislators. I often wonder why. I mean, who on earth
wants to be on a committee which looks at the ethics of your fellow members of
Parliament? I was on a committee that looked at whether one of my sister members
of Parliament should be expelled from the Parliament. It was a privilege committee
rather than an ethics committee situation, and it was horrible. For a year and
a half we sat there trying to decide whether she should be expelled, and it was
not a pleasant experience. Members of Parliament want an inside model,
because they imagine that an outside commissioner will be like our former head
of ICAC, Ian Temby, whose findings led to the downfall of Greiner. There is an
absolute fear in New South Wales that we'll get another Temby and then we'll all
be thrown out of Parliament. People who adopt this position argue that the real
sanction anyway is always a political one, that is, losing your party's support
or having the public turn against you in an election. However, the problem
with a `catch-and-kill-your-own' approach is that the ethics committee, and unfortunately
the chair, then becomes the police person of Parliament. In fact we've even had
one of our quite eccentric upper house members (and you can guess which one) suggest
that members of Parliament should be random breath tested. I have visions of myself
wandering the corridors with an RBT trolley, testing parliamentarians as they
come out of the bar. Those are the sort of issues that some people see as ethical
issues—should parliamentarians be drunk in Parliament? I always get rid of
that discussion by saying: well look, if you sit sensible sitting hours you won't
see drunk parliamentarians, because quite frankly I've never seen anyone drunk
before five o'clock—not in the chamber. Still, one might end up as the new
McCarthyite ogre, gaining enormous power through being the chair of the ethics
committee, and that has happened in America. The chairs of the ethics committees
are enormously powerful. When I discussed with the Canadian members
of Parliament what they liked about the outside ethics commissioner in the Saskatchewan
model, they thought the idea of the ethics commissioner being an ex-MP was a good
one. When I discussed it with members of Parliament in New South Wales they also
thought it was a good idea—not because they think they'll get more favourable
advice, but because he or she would actually understand the issues. I must
say that the ethics adviser that we appointed was basically a former public servant,
and he didn't understand enough of the issues that members of Parliament have
to deal with, so he always did real `black-letter law' stuff. For example, I was
trying to find out whether it would be OK to take, on a charter flight, a member
of staff and a senior person in the Human Rights Commission who was making a speech
in the same town. We were trying to get to Broken Hill and Wilcannia for Women's
Day. His decision eventually was that I couldn't take any members of staff, and
I couldn't take the Human Rights Commissioner; she had to fly to Adelaide and
then fly to Broken Hill and then get some staff there to drive her to Wilcannia,
while I was flying there. It was a crazy decision. That was what made me
aware that you have to get someone as a commissioner who is confident enough of
their own position to say `yes, you can do that', or `no, that would be a bit
silly'. You need someone who understands transparency—who understands that
the real judge, in the end, is the Sunday Telegraph. You need someone who
understands that the question is, if the Sunday Telegraph found out that
I had taken a senior person from the Human Rights Commission on the plane with
me, would they see that as a terrible junket or would they see that as something
that was sensible and saved the government a bit of money? It's the same as the
incredible ongoing battle about what is legitimate parliamentary activity, and
what is party political. So that whole discussion about whether to have
an outside commissioner—and if you do, what sort of person they should be—has
been an ongoing debate in New South Wales. When we came down to the nitty-gritty
of the actual code, the problem was whether one supported an aspirational or prescriptive
code. Our committee's view was that a purely aspirational code could really only
say: `be good and eat your greens'; or it could be a meaningless code that said
`you will always act in the public interest'. We also felt that the public would
have eaten us alive if we had adopted a short aspirational code. There
were other differences—the Legislative Council committee modified the injunction
to uphold the law. The original code we were working on had the words `we must
uphold the law.' It seems self-evident that that's what you would have in a code,
but I looked around and on our committee we had at least four or five people who
had deliberately gone out and broken the law at some stage, and probably intended
to do so in the future. So why bring in a code of conduct which said you must
uphold the law? We also had an extensive account of conflict of interest in our
draft code, more so than in the Legislative Assembly code, and we also included
a section on post-employment restrictions. The upper house and lower house
couldn't come to an agreement, so what we agreed to do was have something that
hadn't been used since 1917, called the Free Conference of Managers, and that
was where it stood for about six to nine months. We had agreed that we'd have
a Free Conference of Managers to bring about a joint code. However then
real politik reared its ugly head. There was an election coming, and we
had an ICAC commissioner who was looking at us a bit askance, so the executive
government came up with a code of conduct and everybody immediately said: oh yes,
we'll have that. It was interesting. The lower house had their code, which was
pretty ordinary, and we had our code, which we thought was terrific. Basically
this new code was called the Premier's Code, but then the executive government
said `we'll have that'. I call the Premier's Code the `credit card code' because
our Deputy Clerk had it printed on a card the size of a credit card, to show how
limited it is. However, the Premier's Code was extremely popular with members
of Parliament, because no one actually wanted a code of conduct anyway. The code
that we eventually adopted comes down to six points—it was originally five
points, but a sixth point was added, and this is the one that I wanted to talk
about. It is actually a useful point. It talks about the fact that we are members
of Parliament and members of parties. It says: It is recognised that some
members are non-aligned and others belong to political parties. Organised parties
are a fundamental part of the democratic process, and participation in their activities
is within the legitimate activities of members of Parliament. That, for
us, has solved the ever-present problem, which we always had, of what is legitimate
parliamentary or legislative use, and what is political party use. Our resources
are meant to be for legitimate legislative or parliamentary purposes. That really
means that you are very limited on what you can use your travel vouchers for,
what you can use your stamps for, what you use even your stationery for. Having
had that point added, it is now clear that if we want to catch the train to Goulburn
in winter for a country conference, then that is part of our work and not just
wanting to go to Goulburn for a weekend in winter—which, for some reason,
people always thought we were doing for fun. That, I think, was a very
good aspect of the code. When we grappled with the idea of what you could do with
parliamentary resources in the upper house code, we've actually used the expression
`parliamentary resources are not to be used for private financial benefit.' We've
been quite happy with that, because we didn't want to get into the distinction
between what is political and what is parliamentary. When we asked our
distinguished public witnesses, the people who were giving evidence to our committee,
what they felt was parliamentary and what they thought was political, we got very
odd answers. In fact our auditor-general, who is an interesting character, was
of the view that anything you did to get yourself re-elected was private gain,
because you were getting your wage again, which of course was private gain. His
view was that if you used the parliamentary conference room to have a press conference
where you talked about how good you were, then that was using it for private gain,
because that might get you re-elected and you therefore got money out of it. Basically
that meant that you couldn't walk around Parliament House, because that would
have been private gain. So there were differing views, and they have been cleared
up and I'm very pleased about it. What do I see as the real issue? The
real issue for backbench members of Parliament is exactly what I was talking about—it
is private gain from public office. It is never as clear as, say, conflict of
interest. It's those little, low-grade actions that members of Parliament take
quite often, and don't even think about. For example, it could be a member demanding
an upgrade at the airport; or ringing up the Sydney Cricket Ground and saying,
`I'm Joe Bloggs, Member of Parliament, can I park under the stadium for today's
match?' Or it could be a member of Parliament going down to the local police station
and saying, `I'm the local member, that's my nephew you've got in there, get him
out.' It could be a member writing to the council on his letterhead objecting
to the neighbour's noisy cocky. It's those sorts of behaviours that create the
grey areas that members on the whole are not very clear about. I've discussed
this for the last four or five years. Every time I talk to a member of any parliament
in Australia, I start talking about these issues. I get so many different responses,
it's extraordinary. Some people think it's OK to write to the council on their
own letterhead to complain about something that is in fact a private issue. I
was so proper about it, that when I had an issue with the restaurant behind me
I only ever approached the independent member of the council about it, because
I felt too embarrassed to actually talk to the Labor Party members, because it
might look as if I was using my political position. On the whole, members
are not corrupt—they are confused. This goes right up to the leadership.
When I was trying to get my version of the code of conduct accepted, the leader
of the ethics committee in the lower house and I went to see the three leaders
of the major parties, and the responses I got from them made me realise that,
if that was the leadership response, it was no wonder the members themselves don't
actually know what I'm talking about on ethical issues. When I was speaking
at a seminar in Western Australia on ethical issues, I asked the Deputy Premier,
Hendy Cowan from the National Party, what he did about the grey areas, and he
said that there were no grey areas—there were standing orders, and there
was the criminal law. And most members of Parliament actually believe that. They
think the standing orders say you can't call someone a liar, and the criminal
law says you can't murder your wife, and in between that there is no such thing
as a grey area. I get grey areas all the time. A friend was telling me
that he had done a routine immigration case for a constituent. He later went to
a restaurant which he had no idea was owned by that constituent, and when it came
to the end of the meal, the constituent said that he mustn't pay. It was an embarrassing
and difficult situation. I asked how he solved it, and he said that he solved
it by letting them give him the meal, but that he never went back to that restaurant
again because he was too embarrassed. He was afraid it would happen again. Those
are the sorts of issues that parliamentarians deal with daily, and yet there has
been no support for us putting out a more prescriptive code, one which says: in
this situation you can do this, in that situation you can do that. In America
they have produced an ethics manual which is very comprehensive, and includes
things such as, if a lobbyist offers you a glass of water you cannot accept it—you
cannot accept a thing from a lobbyist. Mind you, in America it's a lot
more difficult for backbenchers because there is no party voting system, so every
vote is for sale—and it's literally for sale. I've always felt, in
Australia, that tight party voting protects backbenchers, particularly, enormously.
We say, `Don't even bother to talk to me about that, Caucus will decide', and
then I just put my hand up. And it does mean that lobbying in that American sense
doesn't actually happen to us. But over the years, I've decided that what we do
need is a case book, where cases are put to members and then the correct ethical
action, or way of dealing with it, is put forward, because there are just so many
differing views on what is ethical and what isn't. The other thing that
we were meant to do, of course, is to have ongoing education. I'm no longer responsible
for the ongoing education of members of Parliament about ethics, because I'm no
longer the Chair of the Ethics Committee. However, as President, the Speaker and
I decided to put on a compulsory induction for all members of Parliament about
their responsibilities under the various acts—the Ombudsman's Act, the ICAC
Act—and I would have thought it would have been pretty important and that
people would have responded. We asked that Parliament be held up for an hour and
a half so that this seminar could take place, and we did that specifically because
we wanted everyone to be in the building so that they would all come to the seminar.
We were actually refused the right by executive government to hold up Parliament
for an hour and a half, so we had to put it on before Parliament started, and
we didn't get a terribly good roll up. We refused to let the press attend, mainly
because I was terrified they would report that less than half the politicians
turned up. So, not only do we have a problem with it being a much more
complicated area than most people think—it is not black and white, there
is this huge area in the middle. I always say to members when they ask. `If something
came out tomorrow in the press, would you be able to say: yes, I did that, and
I stand by it?' That's a good rule of thumb to use. At the moment we don't
actually have an outside ethics adviser. The same ad hoc advice systems go on,
and they're all totally inappropriate. You can ask your own Whip—who may
be a very wise person and give you good advice, but I tell you what, the media
isn't going to accept that as an excuse. You can ask the clerks—the media
think that's alright, but the clerks hate it, because there's a sense in which
they are your servants, and then they are also having to tell you that no, you
can't do that, so they get into trouble from the members of Parliament. You can
ask Pat in the Printing Office—you say, `Can I use my crest for this?' And
some poor, lowly person in an office has to make a totally inappropriate decision,
and feels very put upon by it. You can ask the presiding officers—well, my
experience after two or three months as a presiding officer is that no one has
asked me anything, and I wouldn't know the answer anyway. Also, I don't think
that members from the opposite party would feel comfortable about that. So who
knows? Some of my more formal friends say they just send everything they're going
to do to ICAC, and ICAC has to give a response to it, which is a strange way of
going about things. So, at the moment we have a situation where it's all
ad hoc, nothing much is working, and we have to come to some sort of decision
and stick to it. The compromise conflict of interest commissioner that
we ended up with isn't even a statutory appointment—it's someone who's appointed
by a motion of both chambers of the Parliament, and it's just not working well
at all. In fact at the moment we don't have one. Those are all the issues
that I wanted to raise, and I would be really interested in questions. Question
— Given that you seem interested in the idea of an ethics commissioner,
do you think that there's a possibility that the politicians—if they had
an ethics commissioner to ask advice of, rather than accepting responsibility
for their actions—would then move that responsibility to the ethics commissioner,
much in the same way as the Canadian ethics commissioner operates at the national
level? Instead of saying, `Yes I take responsibility for having taken this action',
they say, `I sought advice from the ethics commission, they thought it was OK.'
The Canadian ethics commissioner for the government is actually required to support
action taken by a minister if their advice supported that. What I am suggesting
is that there may be some shifting of responsibility from the individual member
of Parliament to the ethics commissioner. Do you think that's a real problem?
Meredith Burgmann — I think that, in 90 percent of the decisions
you make, you wouldn't bother to put them to an ethics commissioner because you
know what's right and what's wrong. For that other 10 percent, it's an enormous
help to be able to ask an appropriate person. I tend to ask my Clerk, which is
quite mean, because if ever he says no to me he feels terrible. Under the
Saskatchewan model, if the commissioner gave you advice, which you then took and
subsequently got into trouble legally, you are not covered. But all the members
of Parliament were quite sure that you would have been covered in an area that
they saw as more important, which was the media—that the media had faith
in the person who was the commissioner, and the media wouldn't have judged you
as wrong. But it didn't give you indemnity from legal attack. And to most politicians,
the law isn't the issue—the issue is what the Daily Telegraph is going
to do with it. Question — I'm really interested in the use
of the verb `help' in terms of your answer. You said you considered it a major
help to have some assistance in forming your opinion on ethics matters. That suggests
to me that while you are asking an ethics commissioner about a particular problem,
the responsibility for the ultimate decision on how you act still resides with
you. Do you as the individual politician in this particular example see the ethics
commissioner's responsibility as being to assist in the formulation of a decision,
not to actually make that decision on a politician's behalf? Meredith
Burgmann — Yes. Presumably, if you asked an ethics adviser, `Can I employ
this person who is my wife?' and they said no and you still did it, then the building
doesn't fall down. But then if the media find out about it and attack you for
it, you can't say that you asked the ethics adviser and he said yes. The decision
is still yours, but I think you'd be very silly to go against the advice of an
ethics adviser, because you have no comeback then when the final arbiter, which
is the media and the public, find out about it. As I said, politicians
do a lot of things that are unethical, but they don't see it as unethical or corrupt.
They actually think it's all right to ask for an upgrade. No wonder only twelve
percent of the public like us. Question — The small card that
you had with regard to a code of ethics from the Parliament, and then the massive
one you referred to, presumably that big one is a Federal USA code and not a state
one? Meredith Burgmann — It's called the House Ethics Manual.
It's the lower house American one. The states also have them like that. Question
— The small card you had, and the code of ethics written into that—is
that good enough, would that have stopped the Metherall/Greiner affair? Meredith
Burgmann — You'd have to pull a long bow, but probably not, no. The essence
of the Greiner affair was that they created a public service job and did not use
proper public service procedures in order to put someone into it, out of which
they gained another liberal vote, that is, they got Metherall out of Parliament
and put someone else in who was another vote for them. You need a fairly prescriptive
code. This is a totally aspirational code. This is a `be good and eat your greens
code', into which you can read almost anything. I actually don't accept
that there's right and wrong. To me there are all these areas in the middle. I
know I myself need guidance on it all the time. It's very difficult. What gifts
do you accept? Now, in our code we struggled with the issue of a private organisation
saying, we really want you to see this tunnel that we have in Hong Kong, because
we think that's the tunnel you should vote to have in Australia. If they then
send you up to Hong Kong, is that a junket or a bribe, or is that a fact-finding
tour to see if it's a good tunnel or not? We sat down with our committee, and
said, if you go for a specified number of days and you don't take your wife and
kids and you don't stay on afterwards etcetera, etcetera, then it's a fact-finding
tour. We actually wrote down what's considered an acceptable gift of travel. I
would find something like that enormously helpful. If there was a guideline there,
I'd read it through and I would stick to it. Whereas now, people say, should I
have taken that? I think you need an ethics manual like that. Use of letterhead
is one situation which I angst about all the time—it never occurs to a lot
of other members of Parliament, they use their letterhead for everything. It got
Geoff Prosser into a lot of trouble, didn't it? He wrote on his ministerial letterhead
to the local council about beautifying his street. That got him into a lot of
trouble. In America they have a system where they have four different sorts
of stationery. The first is the totally official one that says Senator Bob Bloggs,
US Congress, etc, for totally official stuff; then you have one that says Senator
Bob Bloggs, but doesn't say US Congress; then you've got one that says Bob Bloggs,
etc—there are four different grades of stationery. I would find that pretty
useful. I have just been travelling, and part of what I was doing was totally
official, and part was totally private. I kept thinking, should I be handing out
my President cards, maybe I should have had a card that says `Meredith Burgmann,
MLC', not `Meredith Burgmann, President, Legislative Council', because I was visiting
as someone who was interested in Southern Africa, rather than as the President.
So those sorts of issues arise daily. I would have an ethical issue five times
a day, and most members would. Question — My interest is in
the blurring of the lines between what is parliamentary and what is party political.
What I've noticed in the last couple of years is the extent to which the Remuneration
Tribunal and the other law makers tend to prescribe things which previously members
and senators used to do which were inappropriate or not covered, and which are
now being covered by the law. You suggested that getting oneself re-elected is
a good thing. The Taxation Commissioner took that decision some years ago and
everyone seems to be following it with some enthusiasm. If you're not totally
100 percent a politician every minute of the day, and I suspect most politicians
are, where else do you draw the line with respect to the lawmakers, in those positions
of Remuneration Tribunal people? The party system seems to have run over all of
the separation that used to be exercised by independent authorities. Do you see
that happening with the ethical questions? Meredith Burgmann —
I think that's why, in the end, we just said, you can't get private financial
benefit out of the use of parliamentary resources, because it is almost impossible
to say what's a parliamentary and what's a political activity. I was elected by
four and half million electors, or I was elected by the left of the Labor party
who put me there. So it's a question of who are your electors. I think
you probably are a politician all the time, which is why you never get to behave
badly. One of the questions we asked, I think of the Ombudsman, was `When is a
politician not a politician?' Like `When is a policeman not a policeman?' The
Ombudsman said, `Look, I'm always the Ombudsman, I'm not even allowed to push
in in a queue.' And it's true—you actually have to behave properly at all
times. Another issue, which is one that no one will look at, is having
a big fundraiser and charging the local businesses $200 a head to come and meet
the Minister for Planning, or the Treasurer, or something. Is that ethical? Everyone
does it. Do you get around it by saying, come and meet Joe Bloggs; he's a nice
man—rather than Joe Bloggs, Finance Minister? I have half a dozen of those
little questions every day. I'd love there to be something written out that gives
proper guidance on it all. That's what we set out to do with our code, and everyone
laughed at it, because they didn't think they needed to have advice on what was
an acceptable gift. Was it right for Bronwyn Bishop to get the services
of a member of staff from the health insurance funds when she was the shadow Minister
for Health? We actually sat down and wrote out `The use of staff as a gift'. We
wrote down guidelines. And nobody wanted to know about it, because politicians,
especially in leadership, believe that the ultimate judge is the public. And my
view is that the public is only the judge when they know about it, which comes
back to transparency. If Bronwyn Bishop had announced to the world that one of
her staff members was being paid for by the health insurance companies, then that's
probably fine, because then she would have been judged on it. But no one knew.
I suppose it's a bit like John Laws—if he'd said, `I'm being paid a million
dollars by the banks', then it wouldn't have been an issue. Question
— You started off with the problem that most of the country thinks you're
a bunch of crooks. Do you think the country trusts you to set up your own ethics
process? And how do you move to the next stage, of validating and gaining confidence
in your ethics process? Meredith Burgmann — I don't think they
trust us, but they certainly want us to do it. What has amazed me is that no member
of the media has had a go at this. Journalists' ethics is another story. They
don't trust us to do it ourselves, but they want us to do it, so we're going to
have to do it, and do it a bit better than we're doing it at the moment. Even
though I'm sad at what's happening in New South Wales, we're still well ahead
of most other parliaments. I'm shocked to discover that they have stalled in other
parliaments. In Queensland they're obsessive about use of travel,
that's the only thing they think ethics is about. They're not in the slightest
bit interested in the noisy cocky or what sort of stationery to use. They're obsessive
about travel. But of course—half their previous ministers ended up in jail
over use of their travel. So, they're stalled on travel. In Western Australia
they just don't believe there's such a thing as a corrupt politician, so they
just send them to jail. In New South Wales we've battled on quite well.
One of the sad things is that one of the few people to have been caught in some
ethical problem was Brian Langton, who was basically doing nothing which helped
himself. There, but for the grace of God, would have been me. When I was asked
if I could lend my travel warrants to one of the shadow ministers, the only thing
that saved me was that I'd been such a good little hardworking MLC and I'd used
all my warrants, so I didn't have any to hand over. So the one person that's caught
under the so-called `travel rorts affair' is a bloke who simply used someone else's
travel warrants to get his job done as shadow minister. As far as I can see there's
a lot more unethical stuff going on than that.
Footnotes*
This paper was presented as a lecture in the Department of the Senate Occasional
Lecture Series at Parliament House on 23 July 1999.
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