Introduction
2.1
This chapter provides an overview of parliamentary codes of conduct Australia, as well as the recent history of attempts to introduce a code of conduct for federal parliamentarians.
2.2
The chapter also discusses the key issues raised in submissions and sets out the committee's view.
Parliamentary codes of conduct internationally
2.3
The submission by the Accountability Round Table (ART) stated that the international standard for democratic legislatures was set by the 'Recommended Benchmarks for Democratic Legislatures', first published in 2006 by the Commonwealth Parliamentary Association (CPA), and updated in 2018. The ART quoted the benchmark pertaining to transparency and integrity, which was revised and updated in June 2018 to state as follows:
11. ETHICAL GOVERNANCE
11.1 Transparency and Integrity
11.1.1 Legislators should maintain high standards of accountability, transparency and responsibility in the conduct of all public and parliamentary matters.
11.1.2 The Legislature shall approve and enforce a code of conduct, including rules on conflicts of interest and the acceptance of gifts.
11.1.3 Legislatures shall require legislators to fully and publicly disclose their financial assets and business interests.
11.1.4 There shall be mechanisms to prevent, detect, and bring to justice legislators and staff engaged in corrupt practices.
2.4
In 2006, the Inter-Parliamentary Union (IPU) released the 'Parliament and Democracy in the Twenty-First Century: A Guide to Good Practice' (IPU Guide) in response to concerns about integrity faced by parliaments in many democratic countries.
2.5
In relation to accountability, the IPU Guide noted that the 'more usual method for addressing potential misconduct on the part of parliamentarians is through a code of conduct which is enforced…by a specific commission acting on behalf of the public'. The IPU Guide explained:
The past decade or more has witnessed the widespread development and adoption of principles and codes of conduct, both for the public service generally, and for parliamentarians in particular. This development has been partly in response to a decline in public confidence in the standards of parliamentarians, and a declining trust in representative institutions generally, at least in the established democracies.
…
It should be said that rules of conduct for parliamentarians have always existed, though these have typically been confined to conduct affecting the good order of parliamentary business itself. Thus there are standard prohibitions in almost all parliaments on speech or behaviour which insults or intimidates another member; which obstructs the freedom of debate or voting; or which shows disrespect to the institution or its presiding officer. In addition to such matters of internal order and decorum, it has always been understood as a principle and taken for granted that parliamentarians are elected to serve a public interest, rather than personal or private ones. What is relatively recent has been the need felt by many parliaments to make this principle explicit in a published set of norms and a public code of conduct, which will enhance confidence externally in the integrity of parliament.
2.6
On the enforcement matter, the IPU Guide, citing work by the National Democratic Institute for International Affairs (NDI), noted that self-regulation is often insufficient for the effective enforcement of ethics regulations. Rather, the NDI noted that, many countries have tasked an independent or non-partisan entity to monitor compliance. The NDI referred to the United Kingdom (UK) model as an example (discussed below).
UK Parliament
2.7
The code of conduct for the Members of Parliament (MPs) in the UK House of Commons is often referred to as good practice, covering most of the ethical issues concerning parliamentarians and providing an independent authority/office responsible for overseeing the code and for advising MPs on ethical issues.
2.8
The 'Code of Conduct for Members of Parliament' (the Code) was first adopted by the UK House of Commons in 1995. The purpose of the Code is:
… to assist all Members in the discharge of their obligations to the House, their constituents and the public at large by:
(a)
establishing the standards and principles of conduct expected of all Members in undertaking their duties;
(b)
setting the rules of conduct which underpin these standards and principles and to which all Members must adhere; and in so doing
(c)
ensuring public confidence in the standards expected of all Members and in the commitment of the House to upholding these rules.
2.9
The UK Parliamentary Commissioner for Standards is an independent officer of the House of Commons who is responsible for overseeing the Register of Members' Financial Interests and the Code, including investigating allegations of breaches. The Commissioner also advises the Committee on Standards about issues relating to the Code.
2.10
The UK House of Lords also has a code of conduct, which was first adopted by resolution in November 2009. The House of Lords has its own independent Commissioner for Standards who is responsible for investigating alleged breaches of the House of Lords' code of conduct.
2.11
In 2018, both Houses of the UK Parliament amended their respective Codes of Conduct to make changes consequential upon the adoption of an Independent Complaints and Grievance Policy (ICGP) aimed at tackling bullying, harassment and sexual harassment. The changes make clear that the new parliamentary behaviour code applies to MPs, and gives the Parliamentary Commissioner for Standards of each House authority to investigate complaints about bullying, harassment and sexual harassment by MPs.
House of Commons of Canada
2.12
In 2004, the Canadian House of Commons adopted the Conflict of Interest Code for Members of the House of Commons (Canadian Members' Code), and appointed the first Ethics Commissioner to administer the Canadian Code. Subsequently, a statutory role of Conflict of Interest and Ethics Commissioner was created. Similar to the UK House of Commons Code of Conduct, the Canadian Members' Code seeks to guide Members in the ethical discharge of their duties and represents a manifestation of the House's right to regulate its internal affairs and to discipline its Members for misconduct.
2.13
The four objectives of the Canadian Code are to:
(a)
maintain and enhance public confidence and trust in the integrity of Members as well as the respect and confidence that society places in the House of Commons as an institution;
(b)
demonstrate to the public that Members are held to standards that place the public interest ahead of their private interests and to provide a transparent system by which the public may judge this to be the case;
(d)
provide greater certainty and guidance for Members in how to reconcile their private interests with their public duties and functions; and
(e)
foster consensus among Members by establishing common standards and by providing the means by which questions relating to proper conduct may be answered by an independent, non-partisan adviser.
Parliamentary codes in Australia
2.14
Six Australian parliaments (New South Wales, Victoria, Queensland, Tasmania, Western Australia, and the Australian Capital Territory) have separate codes for ministers and MPs. All Australian parliaments have adopted registers of pecuniary interests and four (New South Wales, Queensland, Tasmania and Australian Capital Territory) have ethics or standards mechanisms in place. Most Australian parliaments have introduced lobbyist registers and codes of conduct governing the conduct of lobbyists and have codes governing the post-separation employment of ministers.
History of discussions about a parliamentary code of conduct
2.15
A Parliamentary Library research paper 'A Code of Conduct for Parliamentarians?' published in 1998 observed that '[t]rust in parliamentarians is at an all time low level' and that:
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.
2.16
The paper concluded that a code of conduct for Commonwealth parliamentarians 'would form an important element in any program designed to foster public trust in, and improve public perception of, Parliament and its members'.
2.17
Discussion by both Houses of Parliament about introducing a parliamentary code of conduct has continued for over three decades. Since 2012, a number of attempts have been made by parliamentarians to introduce integrity framework legislation, including to establish a federal anti-corruption commission.
2.18
For the purposes of this inquiry, the scope of discussion will be limited to recent attempts to introduce a parliamentary code of conduct and associated measures.
Draft Code of Conduct for Members of Parliament: Discussion Paper, House of Representatives Standing Committee of Privileges and Members' Interests, November 2011
2.19
In November 2010, the House of Representatives referred an inquiry to the Standing Committee of Privileges and Members' Interests (House Privileges Committee) in relation to developing a draft Code of Conduct for Members, including the role of a proposed Parliamentary Integrity Commissioner in upholding the code.
2.20
The House Privileges Committee decided not to reach a concluding view on the merits of adopting a code of conduct and presented its work on the inquiry as a discussion paper that was tabled in November 2011. In the paper, the House Privileges Committee considered the competing arguments in relation to implementing a code of conduct and the various elements of a code, and included at Appendix 5 a Draft Code of Conduct for Members of the House of Representatives.
2.21
Notably, the House Privileges Committee made the following observations:
The overall standing of the Parliament and parliamentarians in the community is not as strong as would be desirable, and there is a range of factors involved in those perceptions. A code of conduct for members is not a panacea for a dramatic change in the overall perceptions about parliamentarians. However, it could make a modest contribution to an improvement in perceptions.
2.22
The House Privileges Committee then considered that it would be preferable for a code of conduct to be aspirational rather than prescriptive, and be adopted by resolution of a House rather than in statute.
2.23
In order to ensure the credibility of such a code, the House Privileges Committee was of the view that 'the implementation of an independent and rigorous process for the receipt and investigation of complaints under a code of conduct for members would be essential'. That committee went on to state that:
… if a code of conduct were to be adopted, the Committee would see value in the appointment of an independent Parliamentary Integrity Commissioner whose central role would be to receive and investigate complaints under the proposed code of conduct.
In addition to a central role of receiving and investigating complaints….the Committee considers a Parliamentary Integrity Commissioner could have related roles of:
providing advice to members on matters relating to the code of conduct and ethical issues generally, subject to such advice not creating a potential conflict with any possible investigations;
periodically (every Parliament) reviewing the code of conduct and reporting to the relevant House Committee; and
undertaking an educative role for Members in relation to the code and ethics matters generally.
Code of Conduct Inquiry, Senate Standing Committee of Senators' Interests, November 2012
2.24
An inquiry into the development of a code of conduct for senators and related mechanisms was conducted by, the Senate Standing Committee of Senators' Interests (Senators' Interests Committee), which tabled its report in November 2012. The Senators' Interests Committee noted it received much the same evidence as underpinned the House Privileges Committee's discussion paper.
2.25
The Senators' Interest Committee noted that the House Privileges Committee had asked the threshold question of whether there should be a code of conduct. In the view of the Senators' Interests Committee, this was the wrong threshold question. In expanding on this, it stated that if:
… the answer is posed in this way, lack of support for a code of conduct is too easily equated to lack of support for an improvement in standards. Conversely, if the question is answered 'yes' that leads – perhaps inevitably – to the conclusion that the federal parliament should adopt a code of conduct similar to one of the codes applying at state level or in another comparable parliament overseas.
The difficulty the Senators' Interests Committee has with this approach is the paucity of evidence that the codes of conduct applying in other Australian jurisdictions have done anything to improve community perceptions. Several state parliaments have now had codes of conduct in place for many years. Although members and officials from some of those jurisdictions have reported their opinion that standards have risen or that conduct has improved, it has to be doubted that the public perception of those parliaments and of their members has improved…
In the committee's view, there is little objective evidence that such perceptions have improved in relation to the state parliaments which have adopted such codes, and the committee is hesitant to recommend that the Senate go down the same path.
2.26
Rather than the underlying question identified by the House Privileges Committee, the Senators' Interests Committee believed that the underlying questions were: 'where are standards deficient and what specific measures should be adopted to address them?'
2.27
The Senators' Interests Committee did not endorse the code of conduct or the associated complaint procedure proposed in the House Privileges Committee discussion paper, stating that it did 'not think these will provide a meaningful and workable method of addressing parliamentary standards, and does not expect that would be effective in improving perceptions of the parliament.' The Senators' Interests Committee therefore saw 'no need for the appointment of a commissioner and investigator', although it did:
… see value in the Senate considering whether to appoint a person as an ethics adviser to provide advice to senators on ethical matters, including in relation to conflicts of interest.
2.28
The Senators' Interests Committee considered that 'further consideration of a code of conduct needs to take account of the inherent difficulties in seeking to enforce codes consisting primarily of general principles'.
2.29
The Senators' Interests Committee concluded that:
… a better approach to improving parliamentary standards would be to:
consolidate the numerous provisions which regulate the conduct of senators;
identify any gaps in conduct or ethical matters; and
implement specific measures to address those gaps.
Inquiry by the Senate Select Committee on a National Integrity Commission, September 2017
2.30
In February 2017, the Senate established the Select Committee on a National Integrity Commission (the NIC Select Committee), which was tasked with inquiring into:
(a)
the adequacy of the Australian Government's legislative, institutional, organisational, political and electoral, and individual corruption and misconduct; and
(b)
whether a federal integrity commission should be established to address institutional, organisational, political and electoral, and individual corruption and misconduct.
2.31
The report of the Select Committee was tabled in September 2017. It recommended that the Commonwealth Government prioritise strengthening the national integrity framework and give careful consideration to establishing a Commonwealth agency with broad scope and jurisdiction to address integrity and corruption matters.
2.32
A parliamentary code of conduct did not feature in the recommendations, however the Select Committee did recommend that:
… if a national integrity agency is established, the Parliament appoint a Parliamentary Integrity Commissioner to provide advice on matters of ethics to senators and members'; and
that the Senate and the House of Representatives diligently use their Privileges Committees where it is alleged that a senator or member has acted improperly and contrary to parliamentary privilege.
Inquiry by the Senate Standing Committee on Procedure, April 2019
2.33
On 29 November 2018, former leader of the Australian Greens, Senator Richard Di Natale moved that the Senate adopt a code of conduct. This motion was amended so as to refer it to the Senate Standing Committee on Procedure (Procedure Committee). The Procedure Committee reported in April 2019 and did not recommend the code be adopted, stating:
The code is similar to one proposed by the Australian Greens and considered by the committee in its first report of 2017. On that occasion, the committee did not agree to adopting the code as an order of the Senate, and similarly did not agree to related amendments proposed to standing order 193.
The committee asked its members to raise the new proposed code with other senators, particularly through their party room meetings. Members continue to report different views about the value and content of such a code and the committee does not recommend its adoption.
Inquiry by the Legal and Constitutional Affairs Legislation Committee, April 2019
2.34
On 29 November 2018, the Senate referred the McGowan NIC Bill to the Legal and Constitutional Affairs Legislation Committee (Legal and Constitutional Affairs Committee) for inquiry and report by 5 April 2019. On 6 December 2018, the Senate referred the Greens NIC Bill and the McGowan NIPS Bill to the Legal and Constitutional Affairs Committee for inquiry and report.
2.35
The Legal and Constitutional Affairs Committee considered the three bills as part of a single inquiry and recommended that none of the bills be passed, 'noting that the government is giving ongoing consideration to the establishment of a Commonwealth Integrity Commission that would be effective, well resourced and subject to proper process'.
2.36
It was acknowledged however that the McGowan NIPS bill was not the focus of the inquiry, 'noting that the weight of evidence to the committee concerned the [Greens and McGowan] NIC bills rather than the [McGowan] NIPS bill'. Those inquiry participants that discussed the McGowan NIPS bill tended to support it.
2.37
The committee commented that:
… the reforms proposed by the [McGowan] NIPS bill are substantial and would have a significant effect on the Parliament and government…Such major reform merits close consideration and input from a wide range of stakeholders.
The committee holds preliminary concerns about certain elements of the [McGowan NIPS] bill, such as the provisions relating to breaches of the proposed code of conduct. It is crucial that any enforcement of a code give due consideration to the democratic mandate held by all parliamentarians.
More generally, the committee does not consider that the limited evidence before it justifies recommending that the [McGowan] NIPS bill proceed. Additional work is required to consider any further measures, legislative or non-legislative, to enhance public confidence in the parliament and the conduct of parliamentarians.
Discussion
2.38
The committee received a number of submissions which supported the bill. For example, the Member for Clarke, Mr Andrew Wilkie MP, strongly supported the proposed independent roles of the Parliamentary Integrity Adviser and the Parliamentary Standards Commissioner. Mr Wilkie concluded that '[t]his bill is an important stepping stone to improving the Australian people's trust and satisfaction with the Parliament and their representatives…'.
2.39
In his submission, Mr Benjamin Cronshaw submitted that 'a National Integrity bill or a similar system has merit to provide a better way to identify and manage examples of misconduct and restore public confidence in the Parliament'. In particular, Mr Cronshaw pointed out that '[t]he confused and underwhelming government responses highlight the need for stronger and clearer Parliamentary standards'.
2.40
Similarly, Transparency International Australia (TIA) supported this Bill 'on the understanding it is part of a much-needed package of reform, including the establishment of a National Integrity Commission'. TIA suggested 10 amendments to enhance certain integrity measures in the bill, including expanding the function of the Parliamentary Integrity Adviser to 'include a matter or decision taken, or to be taken where undue influence may exist, and matters associated with post-separation of employment'.
2.41
The ART submitted that the bill:
…addresses the failure of the Parliament to meet the recommended international standard which provides that democratic legislatures should have a code of conduct and the CPA's recommendations for the design and functioning of such codes.
2.42
The ART also suggested a range of amendments to improve clarity and alignment with the core purpose of the bill to 'help create and enhance a culture of ethical conduct within each House among its Members/Senators'.
2.43
The CPSU however, did not support the Bill 'in its current form and as a stand-alone piece of legislation', although did affirm its support for a federal integrity commission. Notably, the CPSU raised concerns about how the proposed bill would interact with existing frameworks, such as:
… the Independent Parliamentary Expenses Authority (IPEA) and ministerial codes, and agencies that currently have accountability and transparency roles such as the Commonwealth Ombudsman, Auditor General, Australian Public Service Commission, Australian Federal Police - Fraud Anticorruption Centre, Australian Criminal Intelligence Commission and State & Territory AntiCorruption Agencies and international anti-corruption bodies such as the Australian Securities and Investments Commission, Australian Transaction Reports and Analysis Centre and Financial Action Task Force.
2.44
The CPSU pointed out that there was the lack of clarity around:
how the roles of the Parliamentary Integrity Commissioner and the Parliamentary Integrity Adviser would be distinct and how they would interact with existing measures; and
how the roles of the Parliamentary Integrity Commissioner and the Parliamentary Integrity Adviser would work within the current parliamentary requirements such as the register of interests and whether there may be overlap with some aspects of the role of the Independent Parliamentary Expenses Authority.
2.45
In addition, the CPSU stressed that the code of conduct must reflect the distinction between parliamentarians and their staff and recommended that '[r]ather than a single code of conduct applicable to both Members of Parliament and their staff, there be a consultation around the code of conduct for staff with staff'. The CPSU also raised concerns relating to whistle blowing protection, and privacy and confidentiality.
Committee view
2.46
The committee has considered the issues expressed in the submissions and the developments in other domestic and overseas jurisdictions relating to a code of conduct for parliamentarians. The committee notes that previous Senate committees have not recommended the adoption of a parliamentary code of conduct. Based on the evidence before it, this committee is not persuaded that the circumstances have now changed such that there is a strong argument for introducing a code of conduct.
2.47
In the committee's view, the approach taken by the Senators' Interests Committee in its 2012 report is instructive. This report, together with the evidence from the CPSU, that the bill lacks the necessary calibration to interact coherently with existing integrity regimes, which suggests to the committee that there is a real risk that the proposed roles of the Parliamentary Integrity Adviser and the Parliamentary Integrity Commissioner could overlap with the existing integrity-related roles of several Federal Government agencies and the Independent Parliamentary Expenses Authority. The committee believes that the better approach would be to identify gaps (if any) in the existing regimes and implement measures to address these gaps.
2.48
The committee notes that, in a democracy, the primary accountability mechanism for an elected representative is the voters. The best scrutiny mechanism for the conduct of parliamentarians is regular free and fair elections. Parliamentarians are ultimately answerable to their constituents, not each other.
2.49
The committee recommends that the bill not be passed.
Senator James Paterson
Chair