QUEENSLAND

ELECTORAL AND ADMINISTRATIVEREVIEW COMMISSION

REPORTON

T E __L EVIEW OFIT

BCD-N1.

PUBLIC OFFC LLS

MAY 1992

9th Floor, Capital Hill Tel: (07) 237 969685 George Street (008) 177 172BRISBANE QLD 4000 Fax: (07) 237 9778

P 0 Box 349NORTH QUAY QLD 4002 Serial No. 92/R1

ELECTORAL AND ADMINISTRATIVEREVIEW COMMISSION

REPORTON

THE REVIEW OFCODES OF CONDUCT

FOR PUBLIC OFFICIALS

MAY 1992

Electoral and Administrative Review CommissionISBN 0 7242 4835 8

92/Ri

PREVIOUS EARC REPORTS

1. 90/R1 Review of Guidelines for the Declaration of Registrable Interests ofElected Representatives of the Parliament of Queensland (August1990)

2. 90/R2 The Local Authority Electoral System of Queensland (September1990)

3. 90/R3 Queensland Joint Electoral Roll Review (October 1990)

4. 90/R4 Queensland Legislative Assembly Electoral System (November1990)

5. 90/115 Judicial Review of Administrative Decisions and Actions(December 1990)

6. 90/R6 Freedom of Information (December 1990)

7. 91/111 Public Assembly Law (February 1991)

8. 91/R2 Review of the Office of Parliamentary Counsel (May 1991)

9. 91/R3 Review of Public Sector Auditing in Queensland (September 1991)

10. 91/R4 Whistleblower Protection (October 1991)

11. 91/R5 External Boundaries of Local Authorities (November 1991)

12. Determination of Legislative Assembly Electoral Districts(November 1991) (1)

13. 91/R6 Information and Resource Needs of Non-Governmental Members ofthe Legislative Assembly (November 1991)

14. 91/R7 The Review of the Elections Act 1983-1991 and Related Matters(December 1991)

(1) This determination was notified in the Queensland GovernmentGazette of 27 November 1991 as required by the Electoral DistrictsAct 1991 (Qld). It does not form part of the numbered series ofEARC Reports.

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CONTENTS

PAGE

LIST OF ABBREVIATIONS

LIST OF TABLES

LIST OF APPENDICES

EXECUTIVE SUMMARY

111

iv

iv

v

1. INTRODUCTION 1

Background 1The Fitzgerald Report 2Review Process 2Current Situation in Queensland 5Scope of the Report 6

2. PUBLIC ETHICS AND PUBLIC TRUST : OFFICIALSAND THEIR CONDUCT 7

Introduction 7Codes of Ethics and Codes of Conduct 9Definition of Public Official 12The Social Construction of Ethics 13Officials and Government - the Westminster Tradition 15Trusteeship of the Public Interest 21Towards an Administrative Ethic 25

3. CODES OF CONDUCT FOR PUBLIC OFFICIALS 34

Introduction 34Codification and the Purposes and Functions of Codes 35Basic Principles 41An Oath of Office 45Personal, Professional and Organisational Ethical Standards 49Ethical Judgement and Decision-Making 52Reasons for Decisions 54

4. REVIEW OF THE EXISTING CODE : OVERVIEW ANDGUIDING PRINCIPLES; PERFORMANCE OF DUTIES 57

Introduction 57The Queensland Code of Conduct, 1988 57Awareness of Codes Within Organisations 58Guiding Principles 62Performance of Duties 65Conduct Towards Other Employees 69Standards of Dress 71Use of Alcohol and Other Drugs 74Use of Official Resources 76Lawful Directions 78

5. REVIEW OF THE EXISTING CODE: CONFLICTS OF INTERESTS 82

Introduction 82Conflicts of Interests 82General Procedures 84Mechanisms for Dealing with Conflicts of Interests 86What Interests should be Declared and/or Registered 96Controls and Sanctions 101Management of Conflicts of Interests 106Gifts and Other Forms of Benefit 109Use of Official Influence to Secure Advantage, Promotion or Transfer 113Political Activity 115

6. REVIEW OF THE EXISTING CODE: PUBLIC COMMENT;OFFICIAL INFORMATION; MERIT; PROFESSIONAL ETHICS;AND PRINCIPLES OF GOOD ADAUNISTRATION 121

Introduction 121Public Comment 121Use or Release of Official Information 126Use of Official Information in Private Sector Employment 131Fees for "Outside Employment" 134Merit 135Politicisation 138Professional Ethics 140Proposed Principles of Good Administration 142

7. CODE OF CONDUCT FOR ELECTED REPRESENTATIVES 145

Introduction 145General Issue 149Standards of Conduct 151Ministers' Conduct 159

8. A PROPOSAL FOR A PUBLIC SECTOR ETHICS REGIME 163

Introduction 163Towards a Public Sector Ethics Regime 163Codes of Conduct 165Public Sector Ethics Administration - Alternative Models 168Co-ordination of the Proposed Ethics Regime 173Proposed Public Sector Ethics Act 1992 175Administration of the Public Sector Ethics Regime 178Penalties and Sanctions 183The Need for Training and Advice 188

9. SUMMARY OF RECOMMENDATIONS 192

Introduction 192Summary of Recommendations 192

10. ACKNOWLEDGEMENTS AND CONCLUDING REMARKS 204

BIBLIOGRAPHY 205

the Act

AMA

Beazley Committee

Bowen Committee

Bowen CommitteeReport

CEO

CJ Act

CJC

the Commission

EARC

Ethics Survey

Fitzgerald Inquiry

Fitzgerald Report

ICAC

Issues Paper

Joint Submission

LG Act

LGAQ

MLA

OPSE

PFS

PSE Act

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LIST OF ABBREVIATIONS

Electoral and Administrative Review Act 1989-1991

Queensland Branch of the Australian Medical Association

Report of the Parliamentary Standards Committee (WA)

Committee of Inquiry Concerning Public Duty andPrivate Interest, (Sir N. Bowen, Chairman)

Report of the Committee of Inquiry Concerning PublicDuty and Private Interest, (Sir N. Bowen, Chairman), 1979

Chief Executive Officer

Criminal Justice Act 1989-1991

Criminal Justice Commission, Queensland

Electoral and Administrative Review Commission,Queensland

Electoral and Administrative Review Commission,Queensland

EARL Survey of Official Conduct (May 1991)

Commission of Inquiry into Possible Illegal Activities andAssociated Police Misconduct, (G.E. Fitzgerald QC,Chairman)

Report of the Commission of Inquiry into Possible IllegalActivities and Associated Police Misconduct, (G.E.Fitzgerald QC, Chairman), 1989

Independent Commission Against Corruption, New SouthWales

Electoral and Administrative Review Commission, IssuesPaper No. 15: Codes of Conduct for Public Officials (July1991), Brisbane

Submission co-ordinated by Premiers Department onbehalf of Queensland Public Service Departments

Local Government Act 1936-1991

Local Government Association of Queensland (Inc.)

Member of the Legislative Assembly

Office of Public Sector Ethics

Public Finance Standards

Public Sector Ethics Act 1992

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PSMC Public Sector Management Commission, Queensland

PSME Act Public Service Management and Employment Act1988-1991

Queensland Code The Code of Conduct for Officers of the Queensland PublicService 1988

the Seminar EARC Seminar on "Public Ethics, Public Trust - Codes ofConduct for Officials" (4/5 November 1991)

SES Senior Executive Service

LIST OF TABLESPAGE

Table 2.1 A Hierarchy of Codes of Ethics and Codes of Conduct 10

Table 2.2 General Principles of Westminster-derived Governmentand Administration 16

Table 8.1 Three Possible Models of Ethics Administrationin Queensland 169

Table 8.2 Content of an Ethics Regime 170

LIST OF APPENDICES

Appendix A Advertisement calling for Public Submissions

Appendix B Codes of Conduct for Public Officials - PublicSubmissions

Appendix C Program and Advertisement for EARC Free PublicSeminar on "Public Ethics , Public Trust - Codes ofConduct for Public Officials", 4/5 November, 1991,Brisbane

Appendix D Code of Conduct for Officers of the Queensland PublicService (1988)

Appendix E Draft Bill for Public Sector Ethics Act 1992

Appendix F Draft Code of Conduct for Appointed Public Officials

Appendix G Draft Code of Conduct for Elected Representatives

Notes: References to numbered submissions in this Report are in brackets preceded bythe letter "S". For example, a reference to submission no.28 will be written as"(S28)" .

References to the transcript of the Public Seminar are similarly abbreviated.For example, a reference to page 28 of that transcript will be written as "(T28)".

Reference to published material are in the form of the Harvard Citation system.

References to issues throughout this document refer to the issues identified inthe Commission's Issue Paper No. 15 Codes of Conduct for Public Officials. Forexample, Issue 5.187 refers to the issue raised at para.5.187 in the Issues Paper.

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EXECUTIVE SUMMARY

Background

The Fitzgerald Report considered the subject of ethical conduct byQueensland public sector officials at several points and dealt particularlywith certain cases of clear conflict of interests between public duty andprivate interest. The Report recommended " ... that ... the Commission [theElectoral and Administrative Review Commission (EARL)] implement and supervise theformulation of Codes of Conduct for public off"rcials." (Recommendation 10(c)).

In particular, the Fitzgerald Report recommended that EARC consider theproper relationship between public servants and their Ministers, the needfor ethical education and the means whereby good management practicesmight discourage corruption.

Scope of the Review

3 The Commission commenced its review in July 1991 with the release ofIssues Paper No. 15, Codes of Conduct for Public Officials, which called forpublic submissions . A Public Seminar was conducted on 4-5 November1991. The Commission also conducted a survey (the "Ethics Survey") ofsome 200 public sector employees in relation to public sector ethicsmatters in May 1991.

4 In developing a response to the matters concerning Codes of Conductraised by the Report of the Fitzgerald Inquiry, this Report addresses thespecific and fundamental issues raised initially by the Commission inIssues Paper No. 15. For example, the characteristics of the properrelationships which ought to exist between public officials and thegovernment of the day, and the Parliament; the responsibilities whichpublic officials owe to the public and to other officials; and the competingand conflicting understandings of "ethics" which arise whenever theconduct of public officials is discussed seriously.

5 Currently there are numerous provisions prescribing various standards ofconduct for public officials in many public sector units in Queensland. Insome cases these provisions take the form of formal Codes of Conduct,sometimes issued under enabling legislation; in other cases Codes havebeen issued by administrative policy decisions; a third class is defined inlegislative provisions which prescribe the formal actions to be taken byofficers when they encounter specific ethical problems such as conflicts of(usually pecuniary) interests.

6 Members of Local Authorities are covered to some extent by variousprovisions in the Local Government Act 1936-1991 ("the LG Act") whichrelate to specific aspects of official conduct.

7 The Commission has also examined ss.2.22 and 2.23 of the CriminalJustice Act 1989-1991 ("the CJ Act") which deals with "official misconduct"and the "General nature of official misconduct" respectively.

8 The Commission is aware that a number of authorities and agencies arecurrently engaged in developing or reviewing Codes of Conduct. As set outin Chapter Eight such agency-specific Codes may be incorporated into theoverall regime proposed in this Report.

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9 The Commission found no evidence to suggest that different ethicalstandards could be justified for different categories of public official (seeChapter Two ). The broad definition of "public sector unit", and hence"public official", which the Commission therefore believes is appropriate inthis context is based on the broad definition proposed in the Commission'sWhistleblower Protection Bill 1992 . That definition has been extended inline with the Commission 's further recommendations in its Report onReview of Public Sector Auditing in Queensland (91/R3, 1991 , p.G5):

"public sector unit" means

(a) the Legislative Assembly and the Parliamentary Service; or(b) the Executive Council; or(c) the courts of the State of whatever jurisdiction, their

registries and administrative offices; or(d) a department of the Government of the State; or(e) a Commission established under an Act; or(f) the Queensland Police Service; or() Queensland Railways; or(h) a local authority; or(i) a corporation sole, a body corporate or an instrumentality-

(i) representing the Crown; or(ii) constituted under any Act or law; or(iii) constituted for a purpose in connection with the

government of the State.

10 The definition includes elected, appointed and employed officialsassociated with the Legislative Assembly and Local Authorities; alldepartments and Commissions; officials associated with statutoryauthorities; administrative officers of the courts; and administrative staffof universities and other educational facilities. The definition has beenincorporated into the draft Public Sector Ethics Bill 1992 in Part 1 -Preliminary (see Appendix E).

11 Pursuant to the recommendations of the Fitzgerald Report, theCommission also reviewed the content of the current Ministers' Code ofEthics and relevant provisions of the LG Act, the latter as they relate tothe conduct of elected Members of Councils.

Administrative Ethics (Chapter Two)

12 The central concern of the Report is the ethical standards which theQueensland community is entitled to expect of public officials at all levels -including elected State and local government officials - when acting intheir official capacity. The Report seeks to answer the following questions:

(a) What ethical standards ought to be observed by public officials whomake decisions affecting the rights and entitlements of others in ademocratic, "Westminster"-based system of responsible governmentand public administration?

(b) Is it feasible to set down such standards in a Code or Codes ofConduct for appointed and elected officials, and if so what shouldsuch Codes contain, and how should they be administered?

13 In particular the Commission has examined a number of ideas drawn fromlaw and political theory - the notion of public service as a public trust; theconcepts of conflict of loyalties, "the public interest", discretionary power,"professional ethics"; and the proper relationship of public officials togovernments, the Parliament, Ministers, the public, and each other.

14 Public officials at all levels take action and make decisions which mayaffect the lives of ordinary citizens. Public officials also control, in variousways, the use of financial and other valuable resources provided by thetaxpayer. The use, and misuse, of those powers and resources thereforeraises important questions of ethics.

15 How public officials should use their powers or influence and the resourcesavailable to them and, more generally, the duty of trusteeship owed by allpublic officials are among the central concerns of this Report.

16 The appropriate standards of ethical conduct for officials are not simplythe personal ethics standards which generally apply to all members of oursociety. An official in their private life may adopt personal ethicalstandards which are at odds with those of the community withoutnecessarily breaching the ethical standards expected of a public official.

17 For the purposes of this Report, "administrative ethics" has anappropriately narrow focus: public officials are required to act, broadlyspeaking, in the public interest. What constitutes "the public interest" in aparticular case will be determined by the circumstances, including thetraditions and values embodied in our system of government and publicadministration , and in particular the respective roles and functions ofelected and appointed officials in that system.

18 In this respect, the ethical standards relevant to public officials aresomewhat analogous to those which apply to other established"professional " groups in our society. For example, doctors, lawyers,accountants, company directors, valuers, counsellors and teachers, amongmany others, are expected to subordinate their personal interests to thoseof their clients, the profession and the community at large, and to act inaccordance with those other interests.

19 "Administrative ethics" in this Report therefore refers tosocially-constructed standards in accordance with which elected andappointed public officials are expected to use the powers, influence andresources of their official positions, and the duties and obligationscharacteristic of various categories of public official in the context of ademocratic and responsible system of government.

20 The Commission has not assumed that the Queensland public sector iscorrupt or that public officials are ignorant of proper standards of officialconduct. Nor has it been assumed that an ethical public sector will beachieved by the simple act of promulgating a set of principles or rules ofconduct for public officials. To judge by the responses to the Ethics Surveyconducted by EARC, what most officials would appreciate is advice andassistance to help them understand, in terms of general principles, whatstandards of behaviour are appropriate, and what actions are notacceptable.

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21 The Commission is aware of the increasing prominence being given to"administrative ethics " in recent times , particularly in the United Statesand Canada. These developments have encouraged the Commission totake a broader view of what constitutes appropriate standards of officialconduct than currently taken by the current Code of Conduct for Officers ofthe Queensland Public Service 1988 (termed in this Report the"Queensland Code") and by similar Codes in other Australian and overseasjurisdictions . The Commission has distinguished administrative ethics,properly understood , from matters which are governed by the law or bystandards of etiquette or local custom.

22 In Australia the resurgence of interest in administrative ethics has anumber of causes of which perhaps the most significant are:

(a) the emerging evidence of corruption, self-interest and improperconduct in the public services of Australia, and evidence that olderconceptions of public service professionalism , independence andnon-partisan commitment to "the public interest " may be underserious challenge;

(b) the questioning of the once generally accepted distinction between"policy-making ' and "administration' , which has the former as theproper concern of elected and responsible politicians , and the latterreserved for an appointed body of public servants who arecharacterised as expert , professional , politically non-partisan anddisinterested; and

(c) the increasing acceptance that non -elected officials exercise power,whether delegated by a Minister or less formally , affecting therights and interests of ordinary citizens who are generally unable toascertain whether that power is used properly, and in their interests.

23 It is becoming generally recognised that ethical considerations are aninseparable aspect of good public administration . However there continuesto be no settled view of what ethical standards (beyond the minimal)should be expected of public officials in a democratic system ofgovernment, or of what might constitute a reasonable basis for any suchstandards . This Report makes a number of detailed recommendations,particularly in relation to what it identifies as the "primary obligations" ofa public official , which seek to remedy this difficulty (see Chapter Two).

The ComnAssion!s Approach Public Sector (Chapters Two, Threeand Eight)

24 The Report argues that the ethical standards appropriate to theQueensland public sector arise from three distinct sources which haveoften been confused in Codes of Conduct in the past:

(a) functional and legal limitations and obligations arising from theindividual 's role/official capacity;

(b) rofessional ethics" aspects of an official 's role (ie. in thediscretionary exercise of powers arising from an official 's privilegedaccess to information , formal power , resources , or influence;accountability/responsibility); and

(c) an official's "personal ethics", especially where these are in conflictwith the norms or practices of the organisation but are consistentwith prevailing community standards.

25 The Report concludes that it is crucially important for the public sector todevelop an administrative ethic which explicitly reaffirms the principlethat all officials - Ministers, other elected representatives, career publicservants and contracted executives alike - are obliged, by the very natureof the positions they hold, to act as trustees of the public interest.

The Proposed Legislation: A "Public Sector Ethics Act" (Chaptersand Eight)

26 Having examined the current Queensland Code, other Codes and therelevant literature, the Commission has come to the conclusion that thereare five core ethical obligations which must be met by public officials ifthey are to fulfil their functions as trustees of the public interest,consistent with the tradition of Westminster democratic values.

27 The Commission believes that these primary obligations should be statedin legislation in very broad terms so that other, more specific obligationsmay be included in their scope (see Part 3 of the draft Public Sector EthicsBill 1992, Appendix E). The more specific obligations, and theirrelationship to the proposed primary obligations, are discussed in laterchapters of the Report and in the draft Codes of Conduct for elected andappointed officials attached to the Report (Appendices G and Frespectively).

28 Legislation declaring the ethical obligations to be observed by publicofficials in performing their official duties is, in principle, little differentfrom already existing legislation and awards requiring officials, forexample, to observe secrecy requirements, or to observe certain principlesin public sector management.

29 The Report takes the view that the main purpose of such legislation is todeclare standards of acceptable official conduct. To the extent that suchstandards are derived from relevant community perceptions of whatethical standards are appropriate, and are consistent with the functionalroles of public officials, the Code of Conduct will be self-imposed by thegreat majority of officials.

30 In the Commission's view the following primary obligations should applyto appointed public officials (see Part 3 of the draft Bill):

(a) Respect for the Law and the System of Government - public officialsshall uphold the laws of Queensland and Australia, and shallimplement the decisions and policies of the Government, and shallnot, without just cause, be a party to their breach, evasion, orsubversion.

(b) Respect for Persons - public officials shall treat members of thepublic and other officials honestly and fairly, and with proper regardfor their rights, entitlements, duties and obligations, and shall at alltimes act responsively in the performance of official duties.

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(c) Integrity - public officials shall at all times seek to maintain orenhance public confidence in the integrity of public sectoradministration, and to advance the common good of the communitywhich they serve, in recognition that public office involves a publictrust. In particular, officials shall ensure that their official powersand position are not used improperly for personal advantage, andthat any conflict between personal interests and official duty whichmay arise is resolved in favour of the public interest.

(d) Diligence - public officials shall exercise due diligence, care andattention, and at all times seek to achieve high standards of publicadministration in relation to the duties and responsibilities of theirofficial position.

(e) Economy and Efficiency - public officials shall avoid waste, abuseand extravagance in the provision or use of public resources, andshall expose fraud and corruption of which the official is aware.

31 The Commission likewise sees the primary obligations for elected officialsas follows (see Part 3 of the draft Bill):

(a) Respect for the Law and the System of Government - Members shalluphold the laws of Queensland and Australia, and shall not, withoutjust cause, be a party to their breach, evasion, or subversion.Members shall act with respect towards the institutions of bothParliament and local government, and shall ensure that theirconduct, whether in a personal or official capacity, does not bringthe Parliament or local government into disrepute, or damage publicconfidence in the system of government.

(b) Respect for Persons - Members shall treat other Members, membersof the public and other officials honestly and fairly, and with properregard for their rights, entitlements, duties and obligations, andshall at all times act responsively in the performance of their publicduties.

(c) Integrity - Members shall at all times seek to advance the commongood of the community which they serve, in recognition that publicoffice involves a public trust. In particular Members shall ensurethat their official powers or position are not used improperly forpersonal advantage, and that any conflict between personalinterests and public duty which may arise is resolved in favour ofthe public interest.

(d) Diligence - Members shall exercise due diligence, care and attention,and shall at all times seek to achieve the highest standardspracticable in relation to their duties and responsibilities in theirofficial capacity as a Member of the Parliament or Member of aLocal Authority.

(e) Economy and Efficiency - Members shall avoid waste, abuse andextravagance in the provision or use of public resources, and shallexpose fraud and corruption of which the Member is aware.

32 Specific guidance on the application of each of the primary obligationsdeclared in the legislation (the "level 1 Code") is set out in the relevantsections of the Codes of Conduct ("level 2 Codes").

33 The Commission further recommends that the level 2 Codes should besupported to the extent necessary by agency-specific rules ("level 3 Code")consistent with and expanding on the primary obligations . Such rulesshould take the form of formal adjuncts to the relevant level 2 Code andhave the force of that Code . Where a Chief Executive has already issuedrules or a Code of Conduct based on the 1988 Queensland Code, provisionhas been made to recognise and incorporate its provisions in a level 3 Codein the new structure , where appropriate . Part 4 , Division 2 of the draftBill deals with these adjuncts to the Codes of Conduct.

34 The Commission is of the view that a general (ie. level 2 ) Code of Conductshould also be considered for each of the categories of public officialrepresented by the Queensland judiciary and statutory office -holders, butit has not provided draft Codes for these categories.

Effective Implementation (Chapters Two, Three and Eight)

35 In the Report the Commission is critical both of the content of theQueensland Code and of past failure to develop and implement itadequately in the Queensland public sector.

36 The Commission considers that ethical conduct by officials must not beseen as some discrete additional process which may be "grafted on" to theexisting system of government administration. Ethical conduct by officialsat all levels is necessarily part of what is meant by "good government".

37 The Report recognises that, in addition to formal standards of officialconduct, three other conditions need to be met if any Code is to beimplemented effectively:

(a) Leadership by the organisation's executives at all levels. If the Codeof Conduct is not observed by senior executives, it is extremelyunlikely that other officials at lower levels will see it as necessary tocomply.

(b) An organisational context in which values can be discussedmeaningfully. If a Code is not understood by, and seen as relevantto, all staff, they will ignore it.

(c) Effective adoption by the organisation in its practices andstructures. An organisation must be seen to "practise what itpreaches", and must also implement effective sanctions againstfailure to observe ethical principles.

Chief Executives ' Responsibilities

38 The Commission recognises that the Chief Executives' potential role in theeffective implementation of any Code of Conduct for public officials is veryimportant. The Commission has therefore made a number ofrecommendations in relation to the role of Chief Executives inpromulgating the general Code, ensuring that staff are appropriatelyfamiliar with the primary obligations set out in the Code, and providingappropriate training and development programs (see Chapter Eight).

39 The Commission recognises two issues of particular relevance to effectiveimplementation:

(a) no generally-stated Code of Conduct can be sufficiently specific to beeasily applied to the enormous range of circumstances which willarise across the Queensland public sector without the need forfurther interpretation; and

(b) some organisations in the Queensland public sector have alreadydeveloped, or are currently working on, a version of the current Codeto apply to their specific circumstances.

40 The Commission therefore considers it to be appropriate that each ChiefExecutive should develop agency-specific rules ("level 3 codes") as adjunctsto the general Code, which give specific directions on how their agency'sstaff are to handle matters which are of particular sensitivity to thatagency. For example, different agencies may wish to adopt differentprocedures in relation to official gifts, or approval for private sectoremployment. Chapter Three of the Report deals with these matters.

41 Where an agency already has a form of Code for its own staff tosupplement the Queensland Code, provision has been made for such Codesto be reviewed and issued as level 3 adjuncts to the new general Code ofConduct for Appointed Public Officials, to ensure that as far as possiblethe effort devoted to developing them will not be wasted (see Part 4 of thedraft Bill).

The Proposed Codes of Conduct (Chapters Three, Four , Five , Six andSeven)

42 The Commission has made specific recommendations in relation to thedetailed provisions of the draft level 2 Codes in Chapters Four, Five andSix; the recommendations are summarised in Chapter Nine of the Report.The Commission's review of the existing Queensland Code is contained inChapters Four, Five and Six.

43 The Public Sector Ethics Bill (PSE Bill) provides for regulations (see Part4) to establish general Codes of Conduct (level 2 Codes) for the variousclasses of public official:

(i) a general Code of Conduct for Appointed Public Officialsderived from the principles set out in the PSE Bill (see Part2), to apply to appointed and employed staff in all units of theQueensland public sector, including local governmentauthorities.

(ii) a general Code of Conduct for Elected Representatives,derived from the principles set out in the PSE Bill (see Part2), to apply to elected Members.

(iii) additional general Codes of Conduct for other categories ofofficials, including the judiciary and statutory office-holders,developed at the initiative of those officials.

44 Apart from the new primary obligations which define administrative ethicsstandards for public officials, the Codes developed in this Report do nottake a radically new approach to the conduct required of public officials.Rather, the Codes provide a rational and comprehensive foundation formany of the traditional expectations and conventions of conduct which areoften loosely referred to as the "Westminster" principles of government.

45 The Codes break new ground in recognising explicitly that personal,community and professional ethics standards may be taken into accountwhere appropriate in determining how to apply the principles of the Codeto practical situations.

46 The Codes introduce a number of mostly procedural initiatives:

(a) The Code of Conduct for Appointed Officials requires senior officialsto register and, where appropriate, declare relevant pecuniary andother material interests likely to give rise to a conflict of interests.Conflict of interests provisions are to apply to Members of LocalGovernment Councils similar to those recently adopted by theParliament in relation to Members (see Chapter Five).

(b) The Code of Conduct for Appointed Officials clarifies the approach tobe taken by an official wishing to question an official direction,departmental practice or policy (see Chapter Four).

(c) The powers of Chief Executives to prescribe agency-specificrequirements in relation to matters such as standards of dress,conflicts of interests, private sector employment, acceptance of giftsand the personal conduct of staff are declared and explained, and astraightforward approach for Chief Executives to do so is provided(see Chapter Four).

(d) A means of resolving conflicts between the Codes of Ethics ofprofessional bodies and the Code of Conduct is proposed andincluded in the Code of Conduct for Appointed Officials (see ChapterSix).

(e) A more positive and responsive approach to the proper use of officialinformation is encouraged in the interests of a better informedpublic and a more accountable public sector (see Chapter Six).

(f) Basic standards of good public administration and decision-makingare detailed in the Code of Conduct itself.

(g) The ethics-related provisions of the Queensland Criminal Code, thePublic Finance Standards and the Criminal Justice Act 1989-1991are gathered together with the Code of Conduct for AppointedOfficials for the first time, as attachments to the Code (see AppendixF).

47 The Commission believes that no Code of Conduct can provide fully for theendless variety of circumstances which a public official will have to face.Instead what is most required of a Code of Conduct for public officials is adeclaration of relevant general principles which set high standards forofficials to aim at, and which can be understood by officials at all levelsand applied to the particular circumstances which they face.

Sanctions (Chapters e and Eight)

48 Formal disciplinary sanctions for significant breaches of the Codes ofConduct are to be available through existing disciplinary processes, or theprovisions of the Criminal Code as appropriate to the circumstances. Nonew specific ethics offences have been proposed.

49 The Commission considers that behaviour contrary to a general Code ofConduct should be handled on a discretionary basis , involving, forexample, counselling or training or formal disciplinary action. Suchbreaches are distinct from conduct prohibited by law , in relation to whichthe option of prosecution should continue to apply.

50 In the case of the Parliament , it is the Commission 's view that breaches ofthe Code, allegations of non -compliance, and the question of sanctionsshould appropriately be the responsibility of the Legislative Assembly.

51 In the case of local government , such matters would of necessity be dealtwith internally by each Local Authority , provided the matter at issue didnot involve a breach of the criminal law, the LG Act or the CJ Act.

52 The Commission has recommended:

(a) That breaches of the PSE Act, or of a Code promulgated under thePSE Act by an official of a unit of the public sector (other than theParliament ), should be able to be dealt with by management inaccordance with the agency's existing disciplinary process oralternatively where appropriate , at the option of the agency, underthe Criminal Code or the Criminal Justice Act 1989-1991 . Appealsshould be available to persons in accordance with the normaloperation of that disciplinary process.

(b) Where the Parliament adopts a Code of Conduct for ElectedRepresentatives in accordance with the PSE Act, breaches of thatCode in respect of Members of the Legislative Assembly are to bedealt with as determined by the Parliament.

(c) Where a Code of Conduct for Elected Representatives has beenadopted , breaches of the Code by Local Authority Members shall bedealt with by the relevant Local Authority. Where disciplinaryaction relies upon the Clerk or another official of the Authority forits implementation, any personal action or other form ofvictimisation taken against the Clerk or official should constitute anact of official misconduct for the purposes of the Criminal JusticeAct 1989-1991.

53 While the Commission recognises the need to provide sanctions forbreaches or non-compliance with required ethics standards, theCommission is concerned that sanctions may be used inappropriately, forexample by over -reaction to a breach in order to make an example of anoffender . Ineffective use of sanctions is likely to both encourage others tobreach a Code and discourage managers from enforcing the Code'sprovisions. Sanctions used unwisely may seriously damage the credibilityand usefulness of any ethics regime.

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The Proposed "Office of Public Sector Ethics" (Chapter Eight)

54 The PSE Bill also provides for the establishment of an Office of PublicSector Ethics (OPSE) (see Chapter Eight of the Report and Part 8 of thedraft Bill) to implement the legislation, in particular by providingassistance and advice to agencies and individuals in relation to Code ofConduct matters.

55 Arguments in the evidence and submissions received by the Commission inrelation to Codes of Conduct support the establishment of a small,independent statutory office responsible generally for the promotion of anincreased awareness of the need for an ethical public sector. An increasein the ability and willingness of public officials to recognise and dealappropriately with ethics issues is seen as desirable. The Ethics Surveyidentified a significant level of demand from public officials for anauthoritative source of advice and training on public sector ethics mattersgenerally.

56 Further, the Queensland Code deals inadequately with challenges to whatare seen as unethical (as opposed to unlawful) practices, directions ordecisions.

57 The Report suggests a way of enabling disputes involving questions ofpersonal or professional ethics or propriety to be resolved within theagency concerned. In the rare cases where such issues have requiredresolution at short notice, anecdotal evidence suggests that assistance isoften sought from - depending on the issues - the relevant union,professional association, the PSMC, the Auditor-General, private legaladvisers, or in some cases the Ombudsman or the relevant regulatoryagency. Success requires that one knows whom to ask, is in a position to doso and finds the right person available.

58 The Commission considers the integrity of government and publicadministration would be enhanced if public officials were to recognise thatthey have a legal and moral duty to question instructions, practices orpolicy which appear, on reasonable grounds, to be contrary to the law, civiland human rights values or the established ethical standards of thecommunity. The public interest is not usually well served by publicofficials whose only concern is their own well-being. On the other hand, apublic official should not have to sacrifice their career in order to challengea dubious direction, or to get an ethics issue discussed.

59 The Commission believes that the OPSE would not only be the appropriatesource of relevant advice, but it would be evidence that responsiblequestioning of the propriety of official decisions, practices and actions isrecognised by government as likely to encourage a more responsive andresponsible public sector.

60 The Commission recommends that the OPSE should be primarilyresponsible for assisting agencies with implementation of the new Codes ofConduct. The OPSE is not intended to have a significant regulatory or"policing" function. Its major functions are proposed to be:

(a) development of training programs and materials in conjunction withuser agencies, including departments, Councils and those smallagencies lacking the resources to undertake such workindependently;

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(b) provision of detailed, expert advice and assistance to departments,authorities, agencies, unions, professional bodies and individuals oncasework and specific ethics and official conduct matters;

(c) co-ordination of a common and coherent approach to public sectorethics matters with the CJC, the PSMC and the Department ofHousing and Local Government; and

(d) consultation with a community-based Advisory Panel on PublicService Ethics ( see below).

61 In the Commission's view the establishment of an independent OPSE is animportant means whereby the Government and the Parliament canpublicly declare its commitment to the maintenance of high ethicalstandards in government administration in post-Fitzgerald Queensland.

The Proposed "Advisory Panel on Public Sector Ethics" (Chapter Eight)

62 The Commission believes that Queensland public sector ethics standardsshould be responsive to changing community standards and expectationsin relation to ethical conduct. The Commission has therefore proposed theestablishment of a community-based consultative body under the PSE Act(see Chapter Eight of this Report and Part 8 of the draft Bill), the AdvisoryPanel on Public Sector Ethics, to advise the OPSE, and report to theParliament on public sector ethics matters generally, including therelevance of standards and the implementation of the various Codes ofConduct.

63 In the Commission's view the Advisory Panel on Public Sector Ethicsshould consist of part-time members, appointed by the Governor in Councilon the advice of the Government on the basis of established interest,relevant expertise and community standing in ethics-related matters.Members of the panel are not to be seen as representatives of anyparticular constituency or interest-group.

64 The Commission proposes that members of the Panel should be appointedand remunerated in accordance with established practice for suchconsultative bodies. The Panel would be expected to meet at least threetimes per year to consider matters arising from the application of the PSEAct and Codes, and to provide advice to the OPSE on relevant communitystandards and attitudes to public sector ethics matters.

65 The proposal for a consultative body recognises the importance which theCommission has attached in this Report to linking the personal andprofessional ethical standards of individual officials to current communitystandards. An OPSE which is divorced from community standards willalmost inevitably find itself out of touch, to the detriment of communityconfidence in the public sector and its values.

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CHAPTER ONE

INTRODUCTION

Background

1.1 The Electoral and Administrative Review Commission ("EARL" or "theCommission") was established by the Electoral and Administrative ReviewAct 1989-1991 ("the Act"). The Commission's object is to provide reports tothe Chairman of the Parliamentary Committee for Electoral andAdministrative Review, the Speaker of the Legislative Assembly and thePremier with a view to achieving and maintaining:

"(a) efficiency in the operation of the Parliament; and

(b) honesty, impartiality and efficiency in -

(i) elections;

(ii) public administration of the State;

(iii) Local Authority administration " (s.2.9(1) of the Act).

1.2 The Commission's functions also include:

"... to investigate and report from time to time in relation to -

(ii) the operation of the Parliament;

(iii) the whole or part of the public administration of the State, including anymatters pertaining thereto specified in the Report of the Commission ofInquiry, or referred to the Commission by the Legislative Assembly, theParliamentary Committee, or the Minister." (s.2. 10(1)(a) of the Act).

1.3 The Act further provides that:

"Without limiting the extent of the Commission's functions, in the discharge of itsfunction to investigate and report in relation to the operation of the Parliament orthe public administration of the State the Commission may investigate and reportin relation to all or any of the matters specified in the Schedule." (s.2.10(2)).

1.4 The items in the Schedule to the Act directly or indirectly relevant to thisReport on Review of Codes of Conduct for Public Officials are:

"1. Preservation and enhancement of individuals' rights and freedoms.

7. Registration of financial interests of... principal officers in units of publicadministration.

9. Elimination of inappropriate considerations from-

(a) decisions made by or on behalf of the Government;(b) advice tendered to the Governor-in-Council;(c) discharge of functions and exercise of powers by units of public

administration.

11. Public notification of significant personal or political connexions ofpersons who benefit from decisions made by or on behalf of theGovernment or activities engaged in by or on behalf of the Government. "

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1.5 At s.2.10(1)(a) the Commission was authorised to investigate and report on:

"(iii) the whole or part of the public administration of the State, including anymatters pertaining thereto specified in the Report of the Commission ofInquiry, ..." [ie. the Report of the Commission of Inquiry intoPossible Illegal Activities and Associated Police Misconduct1989 ("Fitzgerald Report")].

The Fitzgerald Report

1.6 The Fitzgerald Report considered the subject of ethical conduct by officialsat several points and dealt particularly with certain cases of clear conflictsof interests between public duty and private interest. The Reportrecommended "... that ... the Commission implement and supervise the ... formulationof codes of conduct for public officials." (Recommendation 10(c) (p.370)). TheReport dealt with the need for Codes of Conduct and training for publicofficials in the following terms:

"Legislative changes or changes to the mechanics of public administration cannot,of course, be the complete answer to misconduct and inefficiency. Propriety andethical behaviour are difficult to encapsulate in legal and structural terms.

Codes of conduct for public officials, already partially developed by the presentGovernment, must be extended to deal satisfactorily with such important things asthe correct relationship between such people as public servants and their Ministers.

Ethical education must also play a role in long term solutions to problems. Sucheducation would help individuals to find the correct balance between competingconsiderations, and should help groups of employees to establish a supportiveatmosphere within which it would be harder for corruption to flourish.

Education and good management would also eradicate relatively minormisbehaviour such as misuse of public resources and deliberate time-wastage,which help develop attitudes which lead, in turn, to more serious misconduct.

The quality of internal management and supervision has a significant influenceon the behavioural standards of employees. Equally, in the absence of meaningfulwork, staff find other ways to occupy their time." (Fitzgerald Report 1989,p.133).

Review Process

1.7 The process adopted by the Commission for the review of Codes of Conductfor Public Officials in Queensland was developed to comply with theCommission's statutory responsibilities under the Act. In particular, s.2.23states:

"(1) The Commission is not bound by rules or the practice of any court ortribunal as to evidence or procedure in the discharge of its functions orexercise of its powers, but may inform itself on any matter and conduct itsproceedings in such manner as it thinks proper.

(2) The Commission -

(a) shall act independently, impartially, fairly, and in the publicinterest;

(b) shall make available to the public all submissions, objections andsuggestions made to it in the course of its discharging its functions,and otherwise act openly, if to do so would be in the public interestand fair;

3

(c) shall not make available to the public, or disclose to any person,information or material in its possession , if to do so would becontrary to the public interest or unfair;

(d) shall include in its reports -

(i) its recommendations with respect to the relevantsubject-matter;

(ii) an objective summary and comment with respect to allconsiderations of which it is aware that support or oppose orare otherwise pertinent to its recommendations."

SUBMISSIONS

1.8 The Commission commenced the review in July 1991 with the release ofIssues Paper No. 15, Codes of Conduct for Public Officials. The IssuesPaper sought to identify issues relevant to the review and sought publiccomment on them by way of public submissions.

1.9 On 20 July 1991 advertisements were placed in The Australian, and TheCourier-Mail and Queensland regional newspapers (a copy of theadvertisement is reproduced as Appendix A). The advertisement:

(a) invited public submissions on the review;

(b) advised that copies of the Issues Paper were available for perusal atMagistrates Courts, public libraries and the Commission's PublicReading Room; and

(c) advised that copies of the Issues Paper could be obtained from theCommission.

1.10 In all, over 1,400 copies of the Issues Paper were distributed to the courts,libraries, State Government organisations, statutory authorities,community and professional groups, academics and members of the public.

1.11 On 12 October 1991 advertisements were placed advising that copies of allsubmissions received on this review were available for public inspection atcourts, libraries and at the Commission's office. The advertisement calledfor written comments on the initial submission to be lodged with theCommission by close of business on 22 November 1991.

1.12 A total of 39 submissions and comments in response were received inresponse to the two advertisements. Six of these were received after theclosing date for comments in response. A list of persons and organisationsmaking submissions and comments forms Appendix B.

EARC ETHICS SURVEY

1.13 In May 1990 the Commission engaged Professor Victor Callan of theGraduate School of Management at the University of Queensland todevelop a pilot survey intended to identify relevant understandings of andattitudes towards ethics issues covered by the current (1988) Code ofConduct for Officers of the Queensland Public Service.

1.14 The results of the survey were discussed in the Issues Paper (see AppendixB in that document).

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PUBLIC SEMINAR

1.15 On 4 and 5 November 1991 the Commission conducted a Public Seminar("the Seminar") entitled Public Ethics, Public Trust - Codes of Conduct forPublic Officials. The Seminar had a number of sub-themes:

(a) public sector ethics - legal and political perspectives;

(b) codes of conduct for public officials; and

(c) administrative ethics and good public sector management.

1.16 The Seminar program, containing a list of speakers, and the advertisementnotifying the public of the Seminar are reproduced as Appendix C. TheSeminar was advertised in The Courier-Mail. Invitations to attend weresent to all Members of the Legislative Assembly (MLAs), LocalAuthorities, Chief Executive Officers (CEOs), community organisationsand a number of academics. Approximately 120 participants attended theSeminar.

CONSULTATIONS

1.17 During the course of the review, staff of the Commission held consultationswith a number of persons representing the following organisations:

(a) the Criminal Justice Commission (CJC);

(b) the Independent Commission Against Corruption, New South Wales(ICAC);

(c) the Public Sector Management Commission (PSMC);

(d) the Local Government Association of Queensland (LGAQ);

(e) the Department of Housing and Local Government;

(f) the Public Service Commission (Commonwealth); and with

(g) Professor P Finn (ANU), Dr John Uhr (ANU), Dr Glyn Davis(PSMC), Mr Peter Forster (Consultant, Brisbane), Dr Noel Preston(QUT), Mr Peter Roberts, Dr Clare Burton, Dr Ralph Robinson(University of Newcastle), Professor Victor Callan (University ofQueensland), Professor Chris Selby-Smith (Monash University), DrHelen McKenna, Mr Mike Reynolds, Mr Greg Hoffman, Mr GaryClarke, Mr Wayne Mann, and Professor Gerard Carney (BondUniversity).

1.18 The Commission engaged the services of Professor David Corbett of thePublic Sector Management Institute, Monash University, to provide adviceon the content of the Issues Paper and the Report, and other aspects of thereview.

ADDITIONAL SOURCES

1.19 Additional information for this Report was obtained from a number ofother sources, including:

(a) legislation governing public officials' conduct from all AustralianStates and the Commonwealth, Canada, New Zealand and theUnited States;

5

(b) Codes of Conduct for officials from the above jurisdictions and theprivate sector;

(c) a range of Australian, Canadian and United States trainingmaterials on ethics; and

(d) journal articles and monographs, newspaper and magazine articlesand papers presented to seminars on ethics, fraud, accountability,etc.

Current Situation in Queensland

1.20 Currently there are numerous provisions prescribing various acceptablestandards of conduct and behaviour of public officials in many public sectorunits in Queensland. In some cases these provisions take the form offormal Codes of Conduct, sometimes issued under enabling legislation; inothers Codes have been issued by administrative policy decisions; a thirdclass is defined in legislative provisions which prescribe the formal actionsto be taken by officers when they encounter specific ethical problems suchas conflicts of (usually pecuniary) interests. This last class does nottechnically fall within the definition of a Code of Conduct but containscertain similarities.

1.21 The following list, which is not exhaustive, indicates the range ofindividuals and bodies covered:

(a) Queensland Public Service and statutory and other bodiesconstituted as "units of the public sector" (Code of Conduct forOfficers of the Queensland Public Service ("the Queensland Code",see Appendix D)) issued under the Public Service Management andEmployment Act 1988-1991;

(b) Queensland Police Service (Code of Conduct issued under the PoliceServices Administration Act 1990-1991);

(c) Corrective Services Commission (Code of Conduct issued pursuantto s.20(2) of the Corrective Services (Administration) Act 1988-1990);

(d) Ministers' Code of Ethics contained in the draft Cabinet Handbook;

(e) South East Queensland Electricity Board (Code of Conduct forMembers, Officers and Employees of the South East QueenslandElectricity Board);

(f) Valuers Registration Board of Queensland (Code of ProfessionalConduct issued pursuant to s.29 of the Valuers Registration Act1965-1974);

(g) Queensland Ambulance Service (Codes of Practice ,issued pursuantto part 5.5(l) of the Ambulance Service Act 1991);

(h) Department of Employment, Vocational Education, Training andIndustrial Relations (Code of Ethics issued under cover of a PolicyStatement);

(i) Queensland Performing Arts Trust (Code of Conduct for Employeesof the Queensland Performing Arts Trust issued pursuant to s.17(l)of the Queensland Performing Arts Trust Act 1977-1990);

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(j) SUNCORP (Code of Conduct and Ethical Considerations);

(k) Parliamentary Service Commission (Code of Conduct for Officersand Employees of the Parliamentary Service of Queensland); and

(1) Racing Secretariat and Racing Science Centre Staff (Adjunct to theQueensland Code and Oath of Secrecy).

1.22 Members of Local Authorities are not covered by a specific Code ofConduct. Instead there are provisions in the Local Government Act1936-1991 (LG Act) which relate to specific aspects of official conduct (eg.s.14(4) which deals with "Disability of Members of Local Authorities forvoting on account of interests in contracts, etc."). Similarly there arelimited directions in the LG Act relevant to Local Authorities (eg. s.17(5)concerning disclosure of interests of contracts etc.; and s.17(6) dealing withofficers exacting or accepting fees). The Commission understands that aformal review of the LG Act is currently in progress and that a publicdiscussion paper on proposed changes to it will be published shortly.

1.23 The Commission has also examined ss.2.22 and 2.23 of the CriminalJustice Act 1989-1991 ("the CJ Act") which deals with "official misconduct"and the "General nature of official misconduct" respectively.

1.24 The Commission is aware that a number of authorities and agencies arecurrently engaged in developing or reviewing Codes of Conduct. As set outin Chapter Eight of this Report, such agency-specific codes should beincorporated, where necessary or appropriate, into the overall regimeproposed in this Report, provided that they are consistent with the ethicalprinciples and standards of conduct recommended as appropriate for thepublic sector by the Commission.

Scope of the Report

1.25 In developing a response to the matters concerning Codes of Conductraised by the Report of the Fitzgerald Inquiry, this Report addresses thespecific and fundamental issues raised initially by the Commission inIssues Paper No. 15. For example, the characteristics of the properrelationships which ought to exist between public officials and thegovernment of the day, and the Parliament; the responsibilities whichpublic officials owe to the public and to other officials; and the competingand conflicting understandings of "ethics" which arise whenever theconduct of public officials is discussed seriously.

1.26 To this Report the Commission has attached a Draft Public Sector EthicsBill 1992 (see Appendix E). The Bill is a fundamental outcome of theCommission's Review of Codes of Conduct for Public Officials. The Billwas drafted by the Office of the Parliamentary Counsel from instructionsprovided by the Commission which accurately reflects the Commission'srecommendations concerning future content and administration of Codesof Conduct for Queensland public officials. However in the time availablethe Office of Parliamentary Counsel was unable to complete the final partof the Bill dealing with transitional arrangements. These will provide that:

(a) any actions, including disciplinary actions, being undertakenconsequent to existing codes should continue once the Act isproclaimed and the new administrative system in place;

(b) existing agency-specific codes should continue to apply afterproclamation, but any such codes should be reviewed for consistencywith the provisions of the Bill.

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CHAPTER TWO

PUBLIC ECS AND PUBLIC TRUST:OFFICIALS CONDUCT

Introduction

THE MEANING OF "ETHICS" AND "ADMINISTRATIVE ETHICS"

2.1 The dictionary meaning of "Ethics" in general terms is "a group of moralprinciples or set of values relating to human duty, or the rules of right conduct recognisedin certain associations or in human society at large." (Webster's Dictionary)."Ethics" in this sense means "standards of behaviour or ideals, accepted bya society or profession, which involve questions of right and wrong."

2.2 Public officials at all levels take action and make decisions which mayaffect the lives of ordinary citizens in various ways. Public officials alsocontrol, in various ways, the use of financial and other valuable resourcesprovided by the taxpayer. The use, and misuse, of those powers andresources therefore raises important questions of ethics.

2.3 How public officials should use their powers or influence and the resourcesavailable to them and, more generally, the duty of trusteeship owed by allpublic officials are among the central concerns of this Report.

2.4 The appropriate standards of ethical conduct for officials are not simplythe personal ethics standards which generally apply to all members of oursociety. As discussed later in this report, an official in their private lifemay adopt personal ethical standards which are at odds with those of thecommunity without necessarily breaching the ethical standards expectedof a public official.

2.5 At least in theory, a public official may observe all the ethicalrequirements relating to their office, but in private life be a liar, a cheat ornegligent parent. Such matters, if they became public knowledge, mightwell give rise to questions as to whether the official was a "fit and properperson" to hold public office, but that question would involve a different setof considerations, not all of them to do with the ethical standards whichare expected of officials when acting in their official capacity.

2.6 For the purposes of this Report, "administrative ethics" has anappropriately narrow focus: public officials are required to act, broadlyspeaking, in the public interest. What constitutes "the public interest" in aparticular case will be determined by the circumstances, including thetraditions and values embodied in our system of government and publicadministration, and in particular the respective roles and functions ofelected and appointed officials in that system.

2.7 In this respect, the ethical standards relevant to public officials aresomewhat comparable to those which apply to other established"professional" groups in our society. For example, doctors, lawyers,accountants, company directors, valuers, counsellors and teachers, amongmany others, are expected to subordinate their personal interests to thoseof their clients, the profession and the community at large, and to act inaccordance with those other interests.

8

2.8 "Administrative ethics" in this Report therefore refers to the desirablestandards by which elected and appointed public officials ought to use thepowers, influence and resources of their official positions, and the dutiesand obligations characteristic of various categories of public official in thecontext of a democratic and responsible system of government.

2.9 "Administrative ethics" and a host of ethics-related aspects of publicadministration and public policy are currently the subject of a considerableresurgence of interest. There is also, however, a degree of consensusamong academic researchers, teachers and practitioners, particularly inthe United States, Britain, Canada and Australia. This renewed interesthas been triggered by the many recent public inquiries in as manyjurisdictions, including Queensland, involving alleged and proven corruptpractices perpetrated by elected and appointed officials. Ethics regimes, inthe form of specific statements of administrative obligations in Codes ofConduct, are now viewed as necessary and fundamental to good publicadministration.

2.10 In Australia this resurgence of interest has a number of causes of whichperhaps the most significant are:

(a) the emerging evidence of corruption, self-interest and improperconduct in the public services of Australia, and evidence that olderconceptions of public service professionalism, independence andnon-partisan commitment to "the public interest" may be underserious challenge;

(b) the questioning of the once generally accepted distinction between"policy-making' and "administration", which has the former as theproper concern of elected and responsible politicians, and the latterreserved for an appointed body of public servants who arecharacterised as expert, professional, politically non-partisan andunbiased; and

(c) the increasing acceptance that non-elected officials exercise power,whether delegated by a Minister or less formally, over the rights andinterests of ordinary citizens who are generally unable to ascertainwhether that power is used properly, and in their interests.

2.11 The problem of corruption aside, it is now generally recognised that electedofficials necessarily become involved in the administration of policy, andthat public servants - especially at senior levels - are increasingly beingexpected to defend, if not to justify, government policy. The increasingcomplexity of our society creates unavoidable ethical problems foradministrators at virtually all levels and in all jurisdictions.

2.12 Therefore, the ethical standards which may be expected of public officialsin a democratic system of government such as ours, and the authority forany such standards, continue to be seen as problematic:

"... public administrators work in a unique environment where ethical issues areof special importance and where the way those ethical dilemmas are handled iscritical to the overall health and welfare of the political system. In summary,public administrative ethics are important because:

• these are decisions (the presence of discretion) made by

• individuals in a position of public trust (personal commitment toachieving the public interest , however amorphous)

• operating in an organisation (with bureaucratic values including, but notlimited to, authority, rationality, and efficiency)

• existing in a political environment (with its conflicting goals, values, andperspectives)

• yet expected to implement public policy (be effective)

• while practicing, maintaining, and supporting society's values (economic,social, political, e.g., ideas such as decentralization, participation,openness, etc.),

• especially democratic values, which include but are not limited to

individual dignity

liberty/ freedom, and

fairness /equity /due process.

Obviously public administrators have their work cut out for them." (Gortner1991, p.15).

2.13 While it is becoming generally recognised that "ethics" is an inseparableaspect of public administration, there continues to be no settled view of theethical standards (beyond the minimal) which should be expected of publicofficials in a democratic` system of government, or of what might constitutea reasonable basis for any such standards.

Codes of Ethics and Codes of Conduct

2.14 At the outset it is important to differentiate between the terms "Code ofEthics" and "Code of Conduct". Although there are important differencesbetween them, the two terms are often used interchangeably.

2.15 Codes of Ethics usually define a set of fundamental values which areintended to characterise how the organisation aims to conduct itself andits enterprise. Such values usually reflect prevailing community or socialvalues such as "honesty"; "openness"; "accountability"; "professionalism";"integrity", etc. It is in terms of such a set of values that the term "Code ofEthics" will be used in this Report.

2.16 The term "Code of Conduct" is used to refer to a public sectororganisation's formalised, officially endorsed, statement of the specificobligations imposed on its employees or officials, in addition to thosespecific duties imposed by legislation. The provisions of such codes are, ingeneral, derived from the set of fundamental values (Code of Ethics) whichthe organisation has adopted and are prescriptive of what constitutesacceptable behaviour in particular circumstances. Such codes can take twoforms, which differ in their level of specificity and application.

2.17 Firstly, a Code of Conduct can provide general statements of the publicsector's fundamental values in terms of exhortations and prohibitions as inTable 2.1. This level might contain a rationale for and examples ofdesirable and undesirable behaviour.

2.18 Secondly, a Code of Conduct can prescribe agency-specific requirements ofbehaviour, duties and relationships. Such prescriptions may not applyacross the entire public sector but be limited in application to certainagencies or occupational groups within the sector. Such codes might be inthe form of rules or adjuncts to accompany a general code.

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2.19 Table 2.1 puts forward a hierarchy of three levels to demonstrate thedifferences between Codes of Ethics and the two levels of typical Codes ofConduct discussed above.

TABLE 2.1

A HIERARCHY OF CODES OF ETHICS ANDCODES OF CONDUCT

LEVEL OF CODE TYPICAL PRESCRIPTIONS

Code of Ethics

1 PROVIDES A GENERAL STATEMENT eg. "performance of duty";OF "FUNDAMENTAL VALUES" " trusteeship of the public interest";SUPPORTING STRUCTURE OF "disinterestedness"; "MinisterialGOVERNMENT AND accountability", etc.ADMINISTRATION AND GENERALETHICAL DUTY OF PUBLIC OFFICIALS

Code of Conduct (General)

2 GENERAL CODIFICATION OF PUBLIC eg. "avoid conflicts of interest, forSECTOR'S FUNDAMENTAL VALUES, example... ", "act fairly in exercisingAS EXHORTATIONS AND discretionary powers, for example ... ",PROHIBITIONS, WITH RATIONALE "promote merit in employment... "AND GENERAL EXAMPLES OF etc.LEGITIMATE AND ILLEGITIMATECONDUCT

Code of Conduct (Specific)

3 MULTIPLE, SPECIFIC DECLARATIONS eg. "Agency staff may not acceptOF AGENCY-SPECIFIC ACTIVITIES , gifts in a personal capacity: Gifts areRELATIONSHIPS, DUTIES AND to be handled as follows : ... "; "useORGANISATIONAL REQUIREMENTS of agency computing facilities forDEMANDED OR PROHIBITED, IN personal study - related purposes isDETAIL (DEVELOPED BY to be encouraged , in the interests ofINDIVIDUAL AGENCIES) developing computing skills as

quickly and widely as possible... "etc.

is

2.20 Based on this conceptual hierarchy the central focus of the Commission'sreview has been threefold:

(a) to investigate the standards of ethical conduct expected of publicofficials in Queensland;

(b) to review the existing Queensland Code and the Minister's Code ofEthics; and

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(c) to develop a rational and workable basis for standards of publicsector ethics which the Queensland community may properly expectof its public officials in the last decade of the twentieth century andthereafter.

2.21 A major concern for the Commission has been to clarify and examine:

(a) current public service and community expectations, in Queenslandand elsewhere, relevant to the conduct of officials acting in theirofficial capacity ("official conduct");

(b) a number of central concepts drawn from law and political theory:the notion of public service as a public trust; the concepts of conflictof loyalties, "the public interest", discretionary power, "professionalethics" of public service agencies and officials; the properrelationship of public officials to governments, the Parliament,Ministers, the public, and each other; and

(c) rational , fair and workable management techniques for theregulation of the conduct of officials.

2.22 In keeping with these broad aims Issues Paper No. 15 Codes of Conduct forPublic Officials ("the Issues Paper") took a somewhat broader approachthan is usual in discussions of the problems of "administrative ethics".However , it was not primarily concerned with identifying either a list ofunacceptable or improper practices , or particular forms of officialmisconduct or public corruption and seeking public support for prohibitingthem on the basis of some subjective appeal to "motherhood" ideals orfacile pragmatism. But rather the Issues Paper was concerned with broadprinciples of conduct, and with the question of whether such principles canbe codified effectively.

2.23 It is not to be assumed (and this Report does not assume) that theQueensland public sector is corrupt or ignorant of proper standards ofofficial conduct . Nor is it to be assumed that an ethical public sector(whatever that may turn out to mean in practice ) will be achieved by thesimple act of promulgating a set of principles or rules of ethical conduct forpublic officials . Such an approach would not only fail to achieve anythinguseful , it would also fail to recognise that public officials deal with complexethical matters every day and do not need another sermon on how toconduct themselves as officials. To judge by the responses to the Survey ofOfficial Conduct (May 1991 ) ("the Ethics Survey") conducted by EARC inconnection with this review, what most officials would appreciate is adviceand assistance to help them understand, in terms of general principles,what actions are consistent with their roles and what are not acceptable.

2.24 The review endeavoured to identify , through research and publicconsultation , a set of distinctive relationships inherent in our society'sconcept of "public office", which could serve as a meaningful basis for botha codification of "administrative ethics" and (therefore ) as a specificstandard for the day-to-day conduct of officials.

2.25 The weight of public and professional opinion is that it is appropriate forthe conduct of public officials to be regulated . However there remains thequestion of the nature of the standards of acceptable conduct and theframework of ethical principles on which they are to be based.

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2.26 This chapter is concerned with this ethical framework of principles. Laterchapters are concerned with whether and how the principles can becodified.

Definition ofPublic Official

2.27 The Commission's review concerns Codes of Conduct for Public Officials.Central to its investigation is the definition of "public official" because inthe absence of such a definition it will not be clear to which category ofofficials a particular code may apply.

2.28 Currently there are a number of different definitions of "public official" inQueensland legislation. These definitions usually define public official asan officer of a "unit of public administration" and then define the nature oforganisations which fall within the scope of that latter phrase.

2.29 The Queensland Code currently is tied to the definition of "officers of thepublic service" in the Public Service Management and Employment Act1988-1991 (PSME Act) at ss.4(2) and (3). That Act, which in turn derivesits definition from the Public Sector Management Commission Act1990-1991, expressly excludes a number of categories of officers from thedefinition: the Parliamentary Service, Executive Council, the LegislativeAssembly, Government House, the courts, the Police Force, universities,etc.

2.30 In its Report on Protection of Whistleblowers (1991, 91/R4) the Commissionargued that the primary object of whistleblower protection legislation wasto facilitate the reporting, investigation and correction of illegal orimproper conduct and that therefore it was in the public interest to adopt awide definition of units of public administration, one which applies to allbranches of government. The Commission inclines to the same view inrespect of public sector Codes of Conduct - "public official" should bedefined very broadly to include all categories of officers.

2.31 The broad definition of "public sector unit", and hence "public official",which the Commission believes is appropriate in the context of itsdiscussion of Codes of Conduct is based on the definition proposed in theCommission's Whistleblower Protection Bill 1992. That definition hasbeen extended in line with the Commission's further recommendations inits Report on Review of Public Sector Auditing in Queensland (91/R3, 1991,p.G5):

"public sector unit" means-

(a) the Legislative Assembly and the Parliamentary Service; or(b) the Executive Council; or(c) the courts of the State of whatever jurisdiction, their registries and

administrative offices; or(d) a department of the Government of the State; or(e) a Commission established under an Act; or(f) the Queensland Police Service; or(g) Queensland Railways; or(h) a Local Authority; or(i) a corporation sole, a body corporate or an instrumentality-

(i) representing the Crown; or(ii) constituted by or under any Act or law; or(iii) constituted for a purpose in connection with the government

of the State.

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2.32 This definition thus also includes elected, appointed and employed officialsassociated with the Legislative Assembly and Local Authorities; alldepartments and Commissions; officials associated with statutoryauthorities; administrative officers of the courts; and administrative staffof universities and other educational facilities. The definition has beenincluded in the draft Public Sector Ethics Bill (PSE Act) Or (Appendix E)in Part 1.

2.33 As was pointed out in its Whistleblower Report, the Commission is awareof an Interdepartmental Working Party co-ordinated by the Public SectorManagement Commission (PSMC) which has been charged with reviewingthe various definitions of "units of public administration" in Queenslandlegislation. Notwithstanding the outcome of that review, the Commissionargues for the need for a broad definition in the context of its considerationof Codes of Conduct. Should a preferred definition be produced by theWorking Party it could suitable replace that proposed in para.2.31provided it contains all the elements proposed in that paragraph.

2.34 Thus in this Report the Commission will use the term "public official" toinclude all officers of units of public administration as defined in its draftWhistleblower Protection Bill, thereby encompassing appointed, employedand elected officials alike. Where it uses the term "appointed publicofficial" it refers to the officers of units of public administration other thanMembers of the Legislative Assembly (MLAs), the judiciary, Members ofLocal Authorities and statutory office-holders. Elected MLAs and electedMembers of the Local Authorities are termed as "elected representatives"throughout this Report. The draft PSE Act (Appendix E) uses the term"elected public official" for these officials.

2.35 However, because the Queensland Code applies only to certain appointedand employed officials and not to elected officials, and to the extent thateach of the two categories of official has different conduct requirementsspecific to their positions, the text below will differentiate them on thebasis of their appointed or elected status.

The Social ion of Ethics

2.36 At present Queensland public administration is to some extent regulatedby the Queensland Code. There is also a Minister's Code of Ethicspromulgated in 1990 by the Government. A number of agency-specificcodes have been issued to guide officials in particular organisations.

2.37 Each of these many codes is based on perceptions of what constitutesethical behaviour and "right" actions by officials.

2.38 In a representative democracy standards of public sector ethics generallyreflect the community's laws and ethical norms. Ethical standards are notnecessarily "God-given", self-evident or absolute. They are sociallyconstructed and maintained expressions of our community's theories abouthow to get to "the good society". Other communities may have differenttheories from ours, and ours change pragmatically over time.

2.39 Accordingly, individual citizens in our society are expected to recognise asocial obligation to observe such standards, which are expressed astraditions, community customs, "just laws", etc. Failure/refusal to do soattracts social disapprobation (as unethical, illegal, improper,inappropriate, immoral, wrong, etc.) and sanctions.

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2.40 Those employed in our society's public institutions for the purpose offurthering its desired objectives have an additional obligation arising fromtheir privileged status as officials. Persons who are elected to public officesimilarly must accept ethical obligations as a fundamental part of theirexecutive and parliamentary roles.

2.41 Against this conceptual framework, the ethical standards appropriate tothe regulation of official conduct in public administration arise from threedistinct but related sources, which are apt to be (and in fact often are)confused in Codes of Conduct:

(a) the functional and legal limitations and obligations which constrainthe individual's role/official capacity (ie. arising from the structurein which they are involved, for example, as elected representatives,CEOs, middle-level employed officials, statutory office-holders, etc);

(b) the "professional ethics" aspects of the individual's conduct in theircapacity as a public official (ie. in the discretionary exercise ofpowers arising from the individual's privileged access toinformation, formal power, resources, influence,accountability/responsibility to an electorate); and

(c) an official's "personal ethics", especially where these are in conflictwith the norms or practices of the organisation in which they areemployed.

2.42 Significant ethical issues arise from the personal exercise of discretionarypowers by non-elected officials. Caiden has argued:

"Those who seek to minimize the ethical judgment of public servants hold anunrealistic view of contemporary public administration. Whenever public lawsuse such terms as adequate; advisable', appropriate, `beneficial; `convenient,expedient; equitable; `fair', `fit; `necessary, 'practicable', `proper; `reasonable;`safe' or `sufficient, or their opposites, they oblige public servants to exercisediscretion and make ethical judgements." (1983, pp.160-1).

2.43 The interaction between these three sources was underlined in IssuesPaper No. 15:

"Ethics is not a desert island concern. There is scarcely an ethical issue whichdoes not, in the end, depend upon the individual's sense of being part of acommunity.

If the development of an ethical system is an essentially social process (rather thanthe mere drawing up of new rules and regulations to cope with new environmentalor technological developments), then we must first recapture a sense of our ownsocial identity.

Perhaps that classical ethical question ... may be, Who am I?' or, more correctly,Who are we?' and, in turn, `What kind of community do we want to become?"'(Mackay 1989, pp.83-92).

2.44 The Issues Paper noted that as far back as 1977, the McGregor RoyalCommission of Inquiry into Matters in Relation to Electoral Redistributionin Queensland (Australia, Parliament 1978) had emphasised that"impropriety" in relation to the conduct of a public official is not anabsolute, but a relative concept, dependent for meaning on social andcommunity values and expectations.

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2.45 The Issues Paper also noted suggestions that a central problem ofadministrative ethics arises from the lack of responsibility of an appointedofficial to the electorate, and that one way out of that difficulty may be todevelop an administrative ethic which requires all public officials -Ministers, elected representatives, career public servants, Judges andcontracted executives alike - to act as trustees of the public interest, as alogical requirement of the system of democratic government itself:

"The public service is part of the executive arm of Government, ... [which] ...provides the trustees, custodians and stewards and not the beneficial owners of thepeople's information, offices and funds.

Once it is accepted that the executive arm is but the trustee of the people, the ethicsof a trustee's role can be seen to be applicable." (Wells 1991, p.6).

2.46 In the Commission's view, most attempts in Westminster democraticsystems fail to provide standards for acceptable conduct of officials whichare meaningful, consistent and usable, generally because they do notacknowledge that the application of standards of administrative ethics toparticular circumstances depends on an interaction between functional(administrative), professional and personal values.

2.47 In the Commission's view it is possible, and desirable, to develop Codes ofConduct for the various categories of public official, based on coherent andconsistent general ethical principles, which take account of thesecompeting claims.

Officials and Government - the Westminster Tradition

Issue 3.41 Are the traditional Westminster principles of government and publicadministration, summarised in Table 2.2, relevant to the responsibilities of electedrepresentatives and appointed officials in public sector organisations inQueensland today? If not, or to the extent that they are not, what other principlescould be more relevant?

2.48 The "Westminster" tradition of responsible democratic government isgenerally understood to mean:

"1. `Responsible Ministers' in Parliament.

2. A partnership of elected Ministers and appointed officials (the latter notnecessarily permanent).

3. A relationship between Ministers and officials: both are engaged in`policy' and `administration' but the Minister should be able to have thelast word at any level, and officials should be loyal to the current Minister.

4. Accountability which runs from official to Minister to Cabinet toParliament to voters. This is to enable demands of interests pressing onone part of the administration to be measured against competingdemands, in `the public interest'." (Thynne and Goldring 1987, p.28;see also Parker 1978, p.354).

2.49 Table 2.2 summarises the general principles of the Westminster tradition.

2.50 Australian administrative history in general, and recent events inQueensland described in the Fitzgerald Report, have shown that withinthis framework there is potential for conflict between the public andprivate loyalties of public officials. However, there is a long establishedexpectation that both elected and appointed officials will separate theirpublic and private interests and seek to minimise any serious conflicts.

TABLE 2.2GENERAL PRINCIPLES OF WESTMINSTER -DERIVED GOVERNMENT AND ADMINISTRATION

GENERAL PRINCIPLES OFGOVERNMENT**

GENERAL PRINCIPLES FORCONDUCT OF OFFICIALS

TYPICAL REQUIREMENTS OF CODESOF CONDUCT FOR OFFICIALS

Elected, responsible Ministersin Parliament with mandate

from electorate.

- Officials to serve Government of the

day.

- Officials not to undermine publicconfidence in Government or itsmembers.

- Officials to be politically non-partisan, personally

disinterested, uninfluenced by improper considerations.- Officials not to comment publicly on policy or

administration in which they are involved in theirofficial capacity.

- Officials not to disclose official information improperly.

Partnership of Ministers and Officials to exercise diligence, expertise - Officials to recognise ultimate right of electedappointed officials in policy and and judgement in implementing policy representative to determine policy and administration.administration: both are engaged in of Government. - Officials to provide "frank and fearless advice"policy" and "administration"; the "professionalism", responsiveness to mandate ofMinister has the right to decide. Government.

Officials to have regard for the public - Officials to exercise powers with fairness and equity, ininterest. accordance with the law.

- Officials to avoid patronage, favouritism and unjustifieddiscrimination.

Officials not the 'beneficial owners' of - Officials not to abuse powers of office, or use publicpublic administration system, but its information or resources, for personal gain.trustees. - Officials to observe requirements of good decision-

making - procedural fairness, openness, and givereasons for decisions (etc.).

- Officials to manage resources in the interests of efficientand effective program administration.

Ministers accountable to - Officials to be responsive to - Officials to provide information and assistance toParliament and electorate for Parliament through the Minister to Council Parliamentary Committees, Inquiries, Opposition,administration and policy outcomes, through the representative. as requested/required, and authorised by a

Minister.

- Officials not to undermine public - Officials to avoid waste and extravagance; toconfidence in system of avoid, register or declare personal loyalties andadministration or its officers. interests (eg. pecuniary interests, 'outside'

employment, gifts, relationships) which couldconflict with the proper performance of officialduties; to obey lawful instructions.

- Officials to avoid personal behaviour whichcould bring administration into disrepute (eg.influence of drugs/alcohol; criminal behaviouroutside work context; sexual harassment;

personal abuse of other officials; inappropriatepersonal behaviour etc.); and to observe merit-based appointment/advancement of public

**derived from Thynne and Goldring (see para. 2.48) sector personnel, and "professionalism".

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2.51 The traditional "Westminster" model of public administration is generallyunderstood as embodying a "values-free" conception of publicadministrators and public administration. This conception holds thatappointed public officials in particular are technocratic, expert "machines"for the implementation of government policy. The Issues Paper identifiedthis view as "government makes policy - officials implement policy" (IssuesPaper, paras. 3.4-3.11) and pointed out that this theory has now beendiscredited as over-simplistic. It has become abundantly clear that thepersonal values of officials are an integral part of public administration.The influence of personal values on the performance of public duties musttherefore be properly identified, carefully assessed, and effectivelymanaged where conflicts arise.

2.52 However, it is worth underlining the complexity of the concepts whichconstitute the "Westminster model" by an example. The Creighton case(see Parker in Encel, Wilenski and Schaffer, 1981, pp.245-68) involved thedismissal by the Queensland Parliament of a statutory permanent head ona charge of misconduct for secretly providing official information to anunauthorised person. Mr Creighton, Chairman of the LandAdministration Board in 1953 (and in effect its Chief Executive) had beenconcerned about what he perceived, on the basis of rumours, wasinappropriate conduct of his Minister. He decided to take action "in thepublic interest".

2.53 Strict adherence to Westminster principles, in particular the principle ofneutrality, would have forbidden Mr Creighton from divulging theinformation - at that time there were no systems in place such aswhistleblowing or freedom of information, which would have providedCreighton with protection. The development of these checks and balancesto protect public officials for actions taken by them in the broader "publicinterest", shows how "Westminster" has become modified over time.

2.54 The Commission has noted that the model in Table 2.2 deals implicitly butnot explicitly with the correct relationship between appointed publicofficials and their Ministers, a concern raised by the Fitzgerald Inquiry(see para.1.6 of this Report). The Commission is aware that the nature ofthis relationship has been the subject of much discussion and some formaldevelopment in other Australian jurisdictions in recent years. Much of thesucceeding discussion is focused on this matter.

EVIDENCE AND ARGUMENTS

2.55 (a) The traditional tenets of the Westminster model in the thinking ofofficials are pervasive. The Ethics Survey found that 65% ofrespondents to the Survey agreed with the proposition -"government makes policy, but public servants only implement it".Well over half the officials surveyed did not acknowledge theinfluence which public officials can have on the policy anddecision-making processes.

(b) A Sandell (S6) stated that the traditional Westminster principlesare "extremely" relevant to public officials in Queensland today. Hedescribed Table 1 in Issues Paper No. 15 (Table 2.1 above) whichsummarised these principles as: "... a very worthy document and should bewidely promulgated."

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(c) 'All Departments agreed that Westminster principles were still relevant, but manyfelt they were too simplistic given the complex nature of contemporary publicadministration . They fail to take into account new proposals and practices suchas:

Freedom of Information and Whistleblowing, which reduce the supremacyof the relationship of the Government and the public servant; and

some managers are being charged with corporate responsibilities in acommercial environment as opposed to acting purely as a servant of theelected government.

The Westminster principles also fail to acknowledge the distinct role of Ministerialstaff who are invariably regarded as a separate group of officials from themainstream of the public service." (Submission co-ordinated by Premier'sDepartment on behalf of Queensland Public Service Departments("the Joint Submission") (S15)).

(d) The CJC (S29) strongly endorsed the continuing relevance of theWestminster principles to the responsibilities of officials. However,the CJC stated:

" ... the complexities of the modern state raise questions such as the degree andquality of information informing decision makers (including the electorate), thedifficulty of drawing a precise defining line between the tasks of officials andthose of elected representatives, and the degree of ultimate accountability to theelectorate.

In essence the principles of themselves can provide no more than the generalbackground to government and attempts to slavishly apply them are not likely tobe successful. "

2.56 The continuing relevance of the traditional Westminster model ofgovernment was questioned by others:

(a) "The Westminster system by being constantly reinforced as a rationale for publicsector regulation leads to the assumption that the system is infallible. One of thekey elements in the Westminster system should be flexibility. It is a System not aCode." (Australian Medical Association (AMA) (S26)).

(b) Dr John Uhr has observed that the Coombs Royal Commission of1976 was the first public articulation in Australia of the limitationsof the Westminster system:

"[The Coombs Commission Report of 19761 holds that Westminster' is no longerrelevant as the appropriate standard for describing and evaluating Australianpolitical practices. In addition to the obvious existence of federalism andbicameralism, the two key reasons adduced are:

(i) the truncation of ministerial responsibility through the formal declarationby ministers, after Attorney General Snedden, that they are not liable to beheld to account before Parliament for all the administrative malpracticesand policy failings of their officials; and

(ii) the corresponding development of administrative responsibility with anincreased burden of open, public accountability on officials." (Uhr1991b, p.9).

(c) Professor K Wiltshire has argued that the introduction inQueensland of the Financial Administration and Audit Act1977-1991, which declares the head of each major governmentagency to be a legally accountable officer, significantly weakens theministerial responsibility line of accountability:

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"There have been over 40 instances at national government level, since the famousVIP planes affair in 1966, were ministers have refused to accept the blame foractions within their department, and have got away with it. On top of this, someMinisters have taken to naming particular public servants and blaming them - anew phenomenon. Our system of government cannot cope with a downward line ofresponsibility; it talks about accountability and responsibility to one's superiorsand is silent about downward responsibility and accountability. " (Wiltshire1989, EARC File 017/32).

(d) In the course of the Public Seminar, a number of speakers addressedthe issue of the continuing relevance of "Westminster" principles:the consensus is represented by Dr G Davis of the PSMC, who drewattention to the fundamentally undeveloped (in relation to this issueat least) nature of Australian Constitutions, our readiness to drawon the legal and administrative practices of other, especially US,traditions, and an approach to the regulation of official conductwhich consists of an "... array of regulation ... [which] ... traces the acceptableboundaries of behaviour by public officials ... [but does not sum to] ... a coherentor comprehensive set of axioms." (T21).

2.57 Professor P Finn has argued that the legal concept of loyalty, or fiduciaryduty, has important application to the roles of public officials. Thisconcept helps to explain the common confusions which arise fromoverly-simplistic recourse to Westminster traditions:

"For most non-elected officials and for civil (or public) servants in particular, theiroffices underwent a metamorphosis in the nineteenth century. They were broughtinto an essentially employment (even contractual) relationship with the authorityunder which office was held. This in turn has resulted in a bifurcation of theirroles. They remained servants of the public, remained public officers still because,to use the classic legal formula, they continued `to discharge duties in thedischarge of which the public is interested.' But they became servants andemployees of their employer - a role accentuated in the case of civil servants by thedevelopment of the doctrine of ministerial responsibility. So predominant has thislatter role become in our consciousness that in the case of civil servants, the widelyaccepted view ... is that `[t]hey owe their primary duty ... to their politicalsuperiors.' Nonetheless, if they are trustees or fiduciaries, they are so twice over:first of the public, and secondly of their employer. And it is here that the fissurelies in our conception of the typical, contemporary official: the two trusts aredifferently directed. We have of course attempted to overcome such apparentconflict as may exist between the two through a variety of expedients which for themost part are fictional in character. I here refer first to the role we have assignedparliament and through it the principle of ministerial responsibility to safeguardthe public's interest in due administration; and secondly, to the constitutionalprinciple we have adopted to bring the burden of the two trusts into harmony.That principle, as noted in Australia's `Spycatcher' case, is that governments act,or at all events are constitutionally required to act, in the public interest'." (Finn1991a, EARC file 017/279).

2.58 In the Public Seminar Professor Finn went on to note that countenancing alimited form of whistleblowing gives some recognition to an official's"public interest" responsibilities which may compete with or conflict withthe demands of employee loyalty, as evidence that our society's view ofsuch principles is not fixed.

ANALYSIS OF EVIDENCE AND ARGUMENTS

2.59 The general consensus of the evidence was that, while recognising thelimitations of the model, the basic principles of the Westminster systemshould continue to underlie any Code(s) of Conduct for public officials inQueensland. In particular the important role of professional and personalvalue systems must be recognised and accepted in formal terms if anyCode is to be relevant and useable.

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2.60 Professor Finn has noted the need for prescribing appropriate standards ofofficial conduct, and the difficulty of recognising and balancing thecompeting interests:

"In setting appropriate standards of conduct in most of the areas I've mentioned,at least three separate often conflicting interests have to be weighed and valued.These are the interests of the public, the interests of government and I include inthis its interest in the proper and effective functioning of its agencies, and theinterest of officials both as officials and as members of the public, and I emphasisethe latter. The public interest ordinarily is invoked to justify the standardultimately struck but with the issue so often one of the level of restriction that canwith justice be placed on the individual rights and freedoms of officials, highprinciple is forced to contend more often than not with a sensitive pragmatism.Here, as elsewhere in the law, we delude ourselves if we seek to solve problems byformulae." (Finn (T45)).

2.61 Professor Finn's suggested pragmatism would nonetheless appear likely toprovide a more solid foundation for the articulation of a formal Code ofConduct than would a reliance on what may be termed the"liberal-democratic ethos", even if that ethos, undeveloped though itundoubtedly is, provides some basis for identifying and proscribing thegrosser forms of official misconduct.

2.62 The Commission is of the opinion that there is sufficient continuingrelevance, understanding and acceptance of the "Westminster tradition" inits broadest sense , for its general principles to continue to form the basis ofCodes of Conduct for Queensland public officials.

2.63 Having examined the Queensland Code, numerous other codes and therelevant literature, the Commission has come to the conclusion that thereare five main ethical obligations which must be met by public officials ifthey are to fulfil the function of trustee of the public interest, in termswhich are consistent with the tradition of Westminster values. Theseobligations are stated in very broad terms so that other, more specificobligations may be included in their scope. These more specificobligations, and their relationship to the proposed fundamental ethicalobligations, are discussed in later chapters of this Report and in theproposed draft Codes of Conduct. In the Commission's view theseobligations should apply equally to both elected and appointed officials:

(a) respect for the law and the system of government;

(b) respect of persons;

(c) integrity;

(d) diligence; and

(e) economy and efficiency.

RECOMMENDATION

2.64 The Commission recommends that:

(a) any Queensland Codes of Conduct for Public Officials should beconsistent with "Westminster" principles , reflecting generalcommunity understandings and expectations of the functionalobligations of public officials; and

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(b) the major principles which should underlie any Codes of Conductdeveloped for the Queensland public sector should be expressed as:

(i) respect for the law and the system of government;

(ii) respect for persons;

(iii) integrity;

(iv) diligence; and

(v) economy and efficiency.

2.65 These principles have been incorporated into Part 4 of the Commission'sdraft Code of Conduct for Appointed Public Officials (Appendix F) and Part3 of the draft Code of Conduct for Elected Representatives (Appendix G).They are also declared in Part 2 of the draft Bill (Appendix E).

Trusteeship of the Public Interest

Issue 3.42 Is it appropriate to regard public officials as "trustees" of the publicinterest, with a consequent special responsibility for what they do, and the waythey do it?

2.66 As a way of distinguishing between the various obligations which governofficials and their conduct, the Issues Paper attempted to distinguishbetween ethics, law and rules of etiquette, on the basis of the seriousnessof the behaviour each approach seeks to regulate, and the sanctions fornon-compliance.

2.67 The Issues Paper drew a distinction between "ethics", on the one hand, andwhat is required by law and by rules of etiquette on the other. Asmechanisms for regulating behaviour, systems of law, ethics and etiquetteusually reflect community values of one kind or another, for example -"honesty", "trust", "integrity", "accountability", "professionalism","fairness" and "courtesy towards others". They differ, generally speaking,in the seriousness of the behaviour they seek to regulate, and in the formand severity of the sanctions which can be brought to bear fornon-compliance.

2.68 In our society for example, corruption or the theft of public property by anofficial is illegal, and as such is a matter for the law. The standard ofdress deemed to be appropriate in a department is a matter of etiquette.The standard of conduct expected of officials in relation to the positionswhich they occupy, and the interests of the people they serve, are theproper concern of "administrative ethics".

2.69 Questions of law are ultimately able to be resolved by the courts. Mattersof ethics are, almost by definition, unable to be resolved by resort to rulesor laws. Ethics questions are matters for judgement about competingvalues, and therefore matters about which there may be continuingdisagreement, ambiguity, or uncertainty.

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2.70 It is for this reason that individuals and organisations often seek to avoidquestions of ethics by resorting to questions of law. To say "I am notconcerned with what might be ethical or unethical, only with what islawful and unlawful" may provide, at least in theory, a means for reachinga measure of certainty in difficult circumstances. However, such anapproach may fail to provide much by way of useful guidance for publicofficials on the many occasions when the law is absent or inconclusive, orvalues compete, and something has to be done.

2.71 One of the central problems in public administration is that appointedofficials regularly exercise judgement and discretion without beingaccountable to an electorate for their decisions. In seeking to advance "thepublic interest" as the official perceives it, they may have to decidebetween the competing claims of social, political, economic, professional,cultural and personal values in making a policy recommendation or an"administrative decision". Law, ethics and rules of etiquette all play theirpart in guiding public officials in making appropriate decisions and actions.

2.72 In this sense public officials are expected to act as "trustees" of the publicinterest. In performing their duties public officials are expected torecognise that they have a duty to act in the public interest, whether thisduty is imposed by law, ethics or etiquette.

EVIDENCE AND ARGUMENTS

2.73 (a) A Sandell (S6) regarded the proposition that public officials are"trustees" of the public interest as appropriate and very important:"Public Servants must be made to understand they are not the `beneficial owners'of the public administration [but] the trustees."

(b) " ... public servants are in a position of trust and by the very nature of positionsheld act as trustees of the public interest." (Bundaberg City Council (S11)).

(c) "Nearly all Departments saw public officials as `trustees' of the public interest,with one respondent taking this further in suggesting that the high ethicalstandards of trustees should also apply to public officials.

Those that disagreed did so on the basis that an officer's first loyalty should be tohis /her Minister, and the real trustees being the elected representatives. Despitethis it cannot be said that adoption of this argument abrogates the responsibilitiesof an officer towards the public service." (Joint Submission (S15)).

(d) "One of the main reasons why local government is in such low regard is that fartoo often councillors act as representatives of an interest group rather than astrustees of the public interest." (Cr H Schwabe (S18)).

(e) The CJC (S29) agreed that public officials were properly regarded astrustees: "This view is inherent in recent developments such as the extension ofprotection to bona-fide whistleblowers and the duty of officials to reportmisconduct. "

(f) Professor P Finn (T41) made the point strongly that, as a matter oflaw and constitutional principle, the notion of the "public trust" isdeeply embedded in the laws of common law countries, andAustralian courts have used the trust (or fiduciary) idea to givemeaning to both relationships of elected representatives to thepublic and public servants to the public.

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(g)

In pursuing the notion of the primacy of the role of public officials aspublic trustees in our system of government administration, heargued:

"Despite all our rhetoric about the Westminster system and about ministerialresponsibility, it is the constitutional and legal reality and has been so forcenturies that our officials occupy positions of public trust and confidence and areat the end of the day accountable to the public for the execution of their office."

In relation to the degree to which the public official's conduct mustaccord with the high standards of loyalty to the public required of atrustee, Professor Finn (T41) quoted an eminent lawyer from theUnited States:

"Many forms of conduct permissible in a workaday world for those acting at armslength are forbidden to those bound by fiduciary ties. A trustee is held tosomething stricter than the morals of the market place. Not honesty alone but thepunctilio of an honour the most sensitive is then the standard of behaviour."

It is precisely for this reason that the common law developed a series of specialoffences, bribery, extortion and the like which apply only to public officials. Thelaw has recognised, even if our governments have not, public office is foundedupon a public trust. "

" ... a higher standard of ethical behaviour may be required in public sector thanin private sector decision - making, not least because of the public trust placed inthe hands of unelected officials and their involvement in the use of the state'scoercive powers." (Professor Selby-Smith (T58)).

(h) However, in terms of governmental integrity, more than the notionof fostering the public trust is required:

" ... many of our governments are resistant or tardy in introducing or enhancinginstitutional arrangements which can only foster public trust over distrust,howsoever inconvenient these may be to government itself. Facilitating effectiveauditing, enhancing freedom of information, allowing for public participation inlegislative rule making, obliging reasons to be given for administrative decision;these and more are the stuff of a mature democracy which acknowledges thatgovernment exists for the people ...

... we tend to focus on the conduct to be desired of the individuals engaged in theprocesses of public government but there's much more to it than this. There mustbe integrity in the system of government, in the processes of government and in thepractice of government. These, as much as probity in our officials, are necessaryto maintain public confidence in government. " (Finn (T44)).

(i) In relation to the standards of conduct which are required ofofficials, Professor Finn (T44) argued that there is one standard ofconduct which arises:

" ... out of and which builds upon, the public trust. The preoccupation here iswith conduct which, in fact, or in its appearance or tendency - and we're verymuch concerned with appearances or tendencies - can be said to be unfaithful tothe very public interests that an official is obliged to serve. By way of example Iwould mention in this such matters as conflict of interests, compromising privaterelationships, the use of official power or influence for oppressive or collateralpurposes, bribery and extortion, the abuse of confidential information obtained inoffice for insider trading or other purposes, and the misuse for personal advantageof governmental property, resources and facilities."

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0) D Tucker (T55) noted a link between the current public servicemanagerialism ideology, short term contracts and the public trustnotion and added:

"Perhaps one of the origins of this trend is to be found back in the early 60s whenSir Frederick Wheeler was Chairman of the [Commonwealth] Public ServiceBoard, and he commenced what were termed a series of category reviews ofoccupational categories within the public service. One of the prime objects of thatwas to equate public servants' terms and conditions as nearly as possible with atleast a community average or median point on the basis that this was the properway to reward public servants.

At the time, there was some objection to this, but it occurs to me that if the publicservants are going to be required to actively recognise their public trust role, thenmaybe we do need to get back to the earlier concept of providing conditions andterms of employment which provide additional compensation to public servantsfor that additional responsibility."

Professor Finn (T56) responded:

"As to the second point, the loss of the idea of trust that can arise in anemployment situation . I think it occurs far earlier in the history of our publicservices that the starting pattern that was enacted when Victoria first enactedpublic service legislation ... our public services were set up under a rigid system ofauthority and hierarchy. You only have to look at the first set of regulationspromulgated in 1867 under Victoria's then Civil Service Act to see thatemployment power controlled from the top, in compliance with what was beingvisited upon the public officials, was part of the order of our public services for along [time]. "

ANALYSIS OF EVIDENCE AND ARGUMENTS

2.74 There appears to be ready and widespread acceptance in the Queenslandpublic sector, and the general community, that the idea of "public trust" isa relevant and useful concept for explaining aspects of the role(s) of publicofficials, and defining acceptable standards of official conduct.

2.75 No submissions dealt explicitly with the meaning of the term "the publicinterest", even though according to most Codes that concept provides theultimate test of the correctness of official action. Professional Codes ofEthics almost always require a duty to serve the public interest.

2.76 However, recognising the "fiduciary" aspects of the official's duty willrequire an explanation of the three sets of interests which Finn identifiedas relevant to officials - the interests of the Government, the publicinterest, and the interests of officials.

2.77 In the Commission's view this is likely to be beneficial. Indeed,rationalisation of the typically confused provisions of most Codes ofConduct in terms of a set of relevant interests should significantly assistofficials and the public to understand the provisions of a Code, and itsapplication in particular situations.

2.78 It appears that most submissions and other evidence before theCommission treat "the public interest" as an immutable good which is notin need of further analysis. For example:

"The public interest is a term embracing matters, among others, government andgovernment instrumentalities tacitly accepted and acknowledged to be for the goodorder of society and the well being of its members. The interest is therefore theinterest of the public as distinct from the interest of an individual orindividuals." (DPP v Smith (1991) 1 63).

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2.79 Professor Langford and other Canadian commentators, contributing to aCanadian series of official conduct training materials entitled "TheResponsible Public Servant" in 1990, pointed to a real difficulty in the ideaof 'the public interest", especially when it is used as a justification for achoice between competing duties.

2.80 The training materials point to two conflicting conceptions of "the publicinterest" relevant to officials: simple utilitarianism, which holds that thepublic interest consists of whatever results in "the greatest good for thegreatest number"; and a deontological approach - broadly speaking'whatever, on balance , is in accordance with the rights of (all) themembers of a society." There are obvious difficulties with each approach,but as Langford notes, utilitarianism is usually adopted in Westerndemocratic systems of government as the basis of political decision-makingand administrative policy-advising, because it is the easiest to put intopractice and to justify to an electorate. Thus "public interest" is equated tothe Government's mandate or policy or even the decisions and directions ofthe responsible Minister by officials seeking an objective, concrete meaningof the term on which to base official action.

2.81 On the other hand, it is possible to argue that the concept of "the publicinterest" is of little explanatory value as a guide to action because it isinherently subjective, variable, difficult to articulate, and hard to apply inpractice. (see on this point Pops, G. in Bowman 1991, p.261).

2.82 It is clear that the term, while valuable, has different meanings indifferent contexts. The Commission considers that any public sector Codeof Conduct needs to observe three overlapping criteria for "the publicinterest": an elected government's mandate and government policy,professional judgement, and personal ethical standards (to the extent thatthese reflect prevailing community standards). The Commission considersthat any Code of Conduct must reflect the significant relationships amongthese criteria and in the context of the general principle that public officeinvolves a public trust for which respect by office-holders is fundamental todemocratic government.

RECOMMENDATION

2.83 The Commission recommends that the concept of an official 's obligation tobe a "trustee of the public interest", broadly understood, should berecognised as fundamental to the role of a public official and shouldpublicly declared in Codes of Conduct for public officials.

2.84 This obligation has been incorporated into the Commission's draft Code ofConduct for Appointed Public Officials in Part 8 (Appendix F) and thedraft Code of Conduct for Elected Representatives in Part 6 (Appendix G).Sections 9(1) (for elected public officials) and 14(1) (for appointed publicofficials) of the draft Bill (Appendix E) also declare that public officeinvolves a public trust.

Towards an Administrative Ethic

THE ROLE OF "PERSONAL" ETHICS

Issue 3.44 Should the personal ethical standa rds of indiuidual officials berequired to be excluded from their official function andactivities, to be replacedby, for example, an officially-approved set of principles, or a "professional ethics"code, or a specific set of rules relating to their function ? If so, what would suchstandards require and how should they be imposed ? What should be the

consequences, if any, of a breach of a general requirement of this kind?

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2.85 The Issues Paper asked whether a major difficulty confrontingadministrative ethics lies in the lack of responsibility of appointed officialsto the electorate. If an ethical issue arises that involves the personalstandards of an appointed official what steps should that official take toensure an ethical decision? Do public officials hold a right, or even a duty,to bring their personal standards to bear on ethical questions?

EVIDENCE AND ARGUMENTS

2.86 (a) The Joint Submission (S15),stated:

"A significant majority of Departments were in favour of a professional code ofethics to supersede or expand personal ethics in the work place.

However, there was some disagreement regarding the implementation of such acode. The range of comments was as follows:

it is necessary in addition to having a code of professional ethics, to instiland develop in each public official the ability to balance competing ethicalconsiderations, so enabling a fair and equitable decision to be reached ineach case;

a code of professional ethics should be general and compliance encouragedrather than penalties imposed for non-compliance;

a clear code is only useful if each officer agrees to abide by it;

the principles should be tied in with performance appraisal and generalconduct required of public officials under relevant legislation.

On the question of the consequences of a breach, the suggestions ranged fromenforcement, to education, to the use of the Criminal Justice Act 1989 and thecommon law. "

(b) Dr C Dalglish (T159) referred to the need for a sharedorganisational purpose and value system:

"If ethical behaviour is behaviour that is in line with agreed socially acceptedstandards, the first essential element is that an organisation has a set of valuesand standards which are shared by the membership and do not conflict with thebeliefs and values of the society in general. This does not mean that theorganisational standards should be identical to those held by society. That wouldnot be possible as different elements of any society have different value systems."

(c) "In a situation where public officials at most levels are either developing orinterpreting policy matters it is not possible to exclude personal ethical standardsfrom official functions and activities . Nor is such an effort desirable; a strongpersonal ethical stance is normally productive of ethical behaviour and ismanifested in such areas as choice of career, whistleblowing and reportingmisconduct.

Public service should be supportive of a strong sense of personal ethics rather thanin conflict with them and this Commission endorses the principle of developingmoral sensitivity and awareness through training programs and positivemodelling of desired behaviours. It is doubtful whether a professional code ofethics is essential to this process but a general code of conduct is seen as anintegral part of an overall educational and support process.

A general code of conduct would need to be supplemented by more specific codesdeveloped from it to meet the needs of individual units of public administration.

However, the existence of a code of conduct is of itself unlikely to ensure ethicalbehaviour." (CJC (S29)).

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(d) Dr John Uhr (T6) argued that the review task is not to codify privateethics of conscience or individual morality but the more limitedconstruction of public ethics, and that the distinction is important:

" ... because public ethics relates to the legitimate public interest in one's officialresponsibilities, in the ethics of office or role - and here I'm really elaborating fromwork that Paul Finn has pioneered - which is undoubtedly affected by one'sprivate values , but is tested by one's behaviour in accounting for performance inan office of public trust, and not tested so much by one's orthodoxy, the orthodoxyof one's private beliefs or values. "

and

"We retreat from public ethics to private ethics , as though our task were toinculcate private virtue , when in fact it is to try and institutionalise publicaccountability, to prepare officials for the responsible carriage of their publicaccountabilities, and for being assessed as a public asset."

(e) Professor Michael Jackson (1987, pp.284-90) has argued thatreluctance to recognize or discuss the importance of ethics in publicpolicy and administration rests on four main arguments: ethics isimpossible, ethics is unnecessary, ethics is impractical and ethics isdangerous:

(i) ethics is impossible (ie. morality is a special and private partof life, and therefore, moral arguments cannot be proved bylogic and evidence);

(ii) ethics is unnecessary (ie. in a democratic society, valuedifferences are resolved by the political process);

(iii) ethics is impractical (ie. it is too abstract and philosophical toprovide guidance in specific cases); and

(iv) ethics is dangerous (ie. one's judgement may be mistaken).

ANALYSIS OF EVIDENCE AND ARGUMENTS

2.87 It was generally recognised in the submissions and evidence that anofficial's personal ethics are not central to the ethical concerns of thepublic service or the institution/organisation of which they are a member,but neither are they irrelevant. This approach recognises that thepersonal ethics of officials may have a significant and legitimate role inshaping official conduct and administrative values under certaincircumstances.

2.88 The personal values of the individual official, and what Rohr calls "theregime values" of the organisation or system of public administration, canbe expected to coincide to the extent that both are grounded in the valuesof a given society. Dispute will arise usually over what a particularsituation requires by way of a response rather than over whether aparticular value is relevant or appropriate in some absolute sense.Difficulty in resolving such a clash may, depending on the circumstances,result in the officer seeking clarification from higher levels within, oroutside, the organisation, or "whistleblowing" or resignation. Refusal byan organisation to admit the relevance or legitimacy of the individual'spersonal ethics denies the possibility of discussion and compromise. It alsodenies the moral autonomy of the individual, and rules out the chance ofhearing moral insights other than its own.

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2.89 In the Commission's view, the ethical climate of an organisation benefitswhen officials are not expected to "leave their personal ethics at the door"when they come to work. Personal ethics, grounded in and consistent witha particular culture and value-system, provide an essential framework forevaluating an organisation's practices and values from a viewpoint outsidethe organisation, thereby preserving a crucial form of accountability to thecommunity which, in the case of public bodies, sustains and "owns" them.

RECOMMENDATION

2.90 The Commission recommends that Codes of Conduct for public officialsrecognise a legitimate role for an official 's personal ethical standards as atest of "rightness" of an action and the necessary inter-relationshipbetween functional obligations (including employment obligations) andpersonal ethics.

2.91 The Commission has included this test in Part 5 of its draft Code ofConduct for Appointed Public Officials (Appendix F). The test is alsoprovided for in s.14(2)(b) of the draft Bill (Appendix E).

THE ROLE OF "PROFESSIONAL" ETHICS

Issue 3.45 Would a formal "Code of Professional Ethics" for public officials beuseful? If so, for what purpose(s)?

2.92 The Issues Paper noted that many observers have argued that publicofficials need a code of "professional ethics" comparable to the ethics codesadopted by traditional professions such as medicine and engineering,which would adequately separate the public and private ethical standardsof officials, while identifying the special features of the role of theappointed official:

"Although one might quarrel with certain self-serving aspects of the codes of ethicsdeveloped by the medical and legal professions, there is little doubt that it is thehigh sense of professional definition among physicians and lawyers that accountsfor the relatively clear ethical standards of their professions. They have someunderstanding of what it is that makes them different from everyone else. Ethicalnorms of behaviour are then deduced from these differences. Governmentmanagers might well follow a similar course, and for this reason we should notemphasize the broad human values that we look for in every profession. It is quitepossible for a surgeon with impeccable ethical standards in his professional life tobe an absolutely irresponsible parent, a compulsive gambler, an incorrigiblelecher, and so forth. Unless we are willing to acquiesce in the same possibility forgovernment managers, we shall not make much progress in developing meaningfulethical standards for managers in the career civil service." (Rohr 1989, p.16).

2.93 While many professions and some other organised occupational groupshave adopted more-or-less formal "Codes of Ethics", some of their memberswill be public officials and thereby also bound by public sector codes.

2.94 It is possible that there will be conflicts between such codes of professionalethics and any generic public sector Code of Conduct. For example, theprofessional code may require complete confidentiality, but the publicsector code may require limited disclosure for a particular purpose.

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EVIDENCE AND ARGUMENTS

2.95 (a) The CJC (S29) stated that a general Code of Conduct for publicofficials would be more useful than a professional Code of Ethics:

" ... the issues paper distinguishes between a `Professional Code of Ethics' and a`General Code of Conduct'. The former is seen as establishing ethical standardsfor public officials in a manner similar to codes of ethics adopted by professionssuch as law, medicine, etc.

The Commission considers that as the public sector lacks the cohesion andcommonality of purpose of such professions, it would be better served by a moregeneral code of conduct addressing the required standards of behaviour."

(b) "All agreed with the need for a formal Code of Ethics because it would:

clarify what is ethical behaviour;permit the public to be aware of the code of ethics under which publicofficials operate;ensure personal considerations are less likely to influence decisions; andgive Ministers some guide as to what they can expect from their staff.

However, more than just a code is needed to see ethics practised in the work place.Good management practices, strong corporate identities, loyalty, as well asadequate, interesting, and responsible work are also needed." (JointSubmission (S15)).

(c) "A code of professional ethics for public officials would serve no specific purpose.However, a code of conduct will reinforce the obligations of public officials bymaking explicit their duties and expectations." (PSMC (S24)).

(d) "A Code of Conduct should embrace and allow for the Code of Ethics ofprofessional bodies and segments of the public sector." (AMA (S26)).

(e) "A Code of Professional Ethics will set the guidelines and formulate expectations.This would clarify the issue of ethics for everyone concerned." (Cr H Schwabe(S18)).

(f)

(g)

'"A code of Professional Ethics' would be of value when Appointed Officials facedifficult circumstances in endeavouring to meet the high standard of ethicalconduct demanded by the public." (Bundaberg City Council (S1 1)).

"Our association considers ethics at the administrative level in our society, morepertinent to the question of reforms as suggested by Mr Fitzgerald QC. It is logicalthat public servants on the lower rung of the social ladder will begin attempts atreform if their superiors malfeasance is curtailed by legislated codes of conduct."(Victims of Corruption (S7)).

(h) "The more certain we are of the ethical characteristics of our policy, its strengthsbut also its weaknesses and its limitations, the more certain we can be of the senseof putting ethics back in its rightful place and implementing codes for responsibleconduct." (Dr J Uhr (T13)).

Dr Uhr (T6) in discussing the appropriate policy framework formaking sense of codes of conduct warned:

"Codes are not ends in themselves. Considered in the language of modernprogram budgeting, codes are rather [more] like outputs than outcomes, andshould be evaluated by reference to their contribution to that policy outcome,which I think is integrity in office and public confidence in that integrity. Codesshould be evaluated as possible elements in a considered policy response to ethicsin government, but their importance will really depend upon their place in thatlarger whole. "

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He considered that there are two elements of mischief inconcentrating solely on ethics rather than conduct. The first, hesuggested, is the codification or legitimation of. " ... a set of ethical orright or correct or orthodox values for the internalisation or socialisation by publicofficials. "

According to Dr Uhr (T6), EARC's task however, "... is the more limitedconstruction of public ethics, as distinct from private ethics of conscience orindividual morality."

However, he also noted:

"Ever since the Coombs Royal Commission reported way back in 1976, reportedadversely on the prospect of a professional code for Commonwealth Public Service,Australian public administration or perhaps the Commonwealth publicadministration has gone cool on the social utility of a professional code forofficials. "

(i) Professor Finn (T43) argued that it needs to be recognised that codesof conduct must be developed. " ... under the shadow of the employmentrelationship. " In relation to formal codes, a government needs to bereminded that:

(j)

"... its servants are not its alone; that its interests are not necessarily synonymouswith the public's interests; that if there are rival claimants on the loyalties ofnon-elected officials it's the constitutional responsibility of government to ensurein its institutional arrangements and practices that the public interest is favouredover its own."

F Haly (T75) submitted that the services which public officials mustprovide to the public are sufficiently important and extensive as tobe worthy of a code of ethics:

" ... consider the nature of the service. They are responsible for a great deal ofpublic monies, more collectively than the monies of the largest corporations; theyare in a position of great public trust, a fiduciary position of the highest order;subject to the temptations of greed for empire, competitive pressures for the budgetdollar, the temptations to consider themselves beyond serious sanction if theymisbehave, the monopoly power of uniquely providing a legislatively restrictiveservice often not available elsewhere.

Unquestionably the power of the service is great, pervasive, and has far reachingeffects on the private and public, business and personal, lives of a wide section ofthe population - indeed there can be none who are not materially exposed. If wevalue lawyers to protect our liberty, doctors our life, accountants our money; howmuch more must we value the relationship with public sector officials whoinfluence all three (and more), possibly to a greater degree?"

However, Mr Haly (T78) warned:

"Whilst I have no doubt that professionalism is deservedly there in the publicsector and ethics codification appropriate, the standards and timing of entry tothat status within the service need a determination; and the sanctions (need)articulation, external assistance in administration, and a clear severity in the endwhich warrants their adoption... "

(k) Professional rules of conduct have four "profound problems" identifiedby Professor Clark (T87). First, most professional codes of conductare so vaguely formulated and general in application that they areusually very difficult to translate into behavioural analogues inspecific circumstances. He continued (T87):

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"Second, professional organisations rarely, if ever, actively monitor memberscompliance with codes of practice and if they do, they rarely or never punishtransgressions. Third, professional codes of conduct wrongly impersonaliseexpertise ... fourth, professional codes of conduct have a danger of substitutingnarrow expertise for deliberate political choices. Such codes presume, if you like,a superior mode of reasoning distinct from politics."

Professor Clark (T88) also argued that: "... if professional codes of conductwere actually taken seriously and rigorously monitored for compliance they wouldhave drastic and negative consequences for the internal coherence and efficiency ofbureaucracies. "

(1) The Canadian authority, Professor Kernaghan has observed:

"Ethical rules are likely to be administered most effectively when they arecontained in a code of ethics that provides comprehensive coverage of ethicalproblem areas and involves as few authorities as possible in the administration ofthe code." (Kernaghan 1983, p.44).

This conclusion led Dr Davis to the consideration of codes of conductin context:

"But while ethics are grounded in abstraction, they are realised in a particularsetting. For us, that means Australia, with its somewhat incoherentCommonwealth and State constitutions, its marked emphasis on legalaccountability for bureaucratic and political decisions, compared, for example,with Britain, and its array of imported institutions and practices. This is notWestminster, but an eclectic local brew which binds together the otherwiseantagonistic, such as ministerial responsibility and administrative review,through an underlying concern with keeping elected and public officials honestand reliable. Within this setting, a code of conduct is an expression of ourinchoate constitution. Perhaps indeed it is a substitute, an attempt to distil ideaswhich moved the nation builders, but which they proved unable to express orarticulate. Here is something indeed distinctly Australian: a set of principles wehave difficulty articulating but understand mutely, a consensus about ethicalbehaviour never stipulated formally, but accurately replicated at each level ofgovernment. We work in a system based on a liberal democratic ethos but are nottoo bothered by philosophical rigor. Our ethical temper, like our politics, isshaped by pragmatism. " (T23).

ANALYSIS OF EVIDENCE AND ARGUMENTS

2.96 In general, there was no consensus among the submissions and evidenceon this point. On balance, a formal "Code of Professional Ethics" for publicofficials was not favoured although there was some support for the idea.The generalised value formulations of such Codes were seen as a potentialproblem, in not being specific enough for some. On the other hand, therewas acceptance of the idea that a Code of Ethics would clarify expectedstandards and provide useful guidance. There was support, in preferenceto a Code of Ethics, for a more concrete and explicit Code of Conduct.Others saw a need for both, a statement of general principles and a moreconcrete Code of Conduct, and for administrative and management supportfor the Code.

2.97 There were no objections raised to the idea of some form of code expressingfundamental standards of conduct.

2.98 In the Commission's view a specific conduct-directed code, and a relatedformal statement of the ethical obligations upon which the Code is based,are required to meet the various purposes involved in the management anddevelopment of appropriate standards of official conduct.

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2.99 The Commission believes that generally stated ethical obligations, bythemselves, will be of little practical value, either to an official faced withan ethical dilemma (or more likely, faced with what the official thinksmight be an ethical dilemma, but isn't sure), or to a manager faced withunacceptable conduct by an official but uncertain of what action ispermitted in the specific circumstances.

2.100 Equally, the Commission believes that a Code of Conduct which limitsitself to examples of permitted and prohibited behaviour, acts orrelationships, without providing an explicit rationale to support itsrequirements, will probably not be understood or applied beyond thenarrowly specific examples which it instances, and will soon cease to beconsulted at all.

2.101 The Commission has previously in this Report provided a list of the fiveethical principles on which it believes all Codes of Conduct for QueenslandPublic Officials should be based. A more detailed statement of the fiveprinciples appropriate to appointed and employed officials is:

(a) Respect for the Law and the System of Government - officials shalluphold the laws of Queensland and Australia, and shall implementthe decisions and policies of the Government, and shall not, withoutjust cause, be a party to their breach, evasion, or subversion;

(b) Respect for Persons - officials shall treat members of the public andother officials honestly and fairly, and with proper regard for theirrights, entitlements, duties and obligations, and shall at all timesact responsively in the performance of official duties;

(c) Inte it - officials shall at all times seek to maintain or enhancepublic confidence in the integrity of government administration, andto advance the common good of the community which they serve, inrecognition that public office involves a public trust for which anofficial may be held accountable. In particular officials shall ensurethat their official powers and position are not used improperly forpersonal advantage, and that any conflict between personalinterests and official duty which may arise is resolved in favour ofthe public interest;

(d) Diligence - officials shall exercise due diligence, care and attention,and shall at all times seek to achieve high standards of publicadministration in relation to the duties and responsibilities of theirofficial position;

(e) Economy and Efficiency - officials shall avoid waste, abuse andextravagance in the provision or use of public resources, and shallexpose fraud and corruption of which the official is aware.

2.102 A parallel statement of these principles, appropriate to elected officials, is:

(a) Respect for the Law and System of Government - Members shalluphold the laws of Queensland and Australia, and shall not, withoutjust cause, be a party to their breach, evasion, or subversion.Members shall act with respect towards the institutions of bothParliament and local government, and shall ensure that theirconduct, whether in a personal or official capacity, does not bringthe Parliament or local government into disrepute or damage publicconfidence in the system of government.

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(b) Respect for Persons - Members shall treat other Members, membersof the public, and other officials honestly and fairly, and with properregard for their rights, entitlements, duties and obligations, andshall at all times act responsively in the performance of their publicduties.

(c) Integrity - Members shall at all times seek to advance the commongood of the community which they serve, in recognition that publicoffice involves a public trust. In particular Members shall ensurethat their official powers or position are not used improperly forpersonal advantage, and that any conflict between personalinterests and public duty which may arise is resolved in favour ofthe public interest.

(d) Diligence - Members shall exercise due diligence, care and attention,and shall at all times seek to achieve the highest standardspracticable in relation to their duties and responsibilities in theirofficial capacity as a Member of the Parliament or a Member of aLocal Authority.

(e) Economy and Efficiency - Members shall avoid waste, abuse andextravagance in the provision or use of public resources, and shallexpose fraud and corruption of which the Member is aware.

RECOMMENDATION

2.103 The Commission recommends the adoption of formal statements ofrelevant ethical principles for public officials which incorporate aspects ofa professional "Code of Ethics" together with a rationale for the desiredrelationship between those ethical principles and the conduct of officials.

2.104 The Commission has included a formal statement of the relevant ethicalprinciples, based on the statement of obligations developed earlier in thisReport, in Part 2 of the Public Sector Ethics Bill 1992 (Appendix E).

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Cg P R THREE

CODES OF CONDUCT FOR PUBLIC OFFICIALS

Introduction

3.1 Chapter Two of this Report came to the conclusion that there are strongarguments in favour of publicly affirming the ethical obligations of publicofficials. It argued that such a declaration should be based onfundamental Westminster principles and that the interaction between anofficer's personal values and functional obligations should be recognised.This chapter is concerned with the nature of any public declaration, be itin the form of legislation, Codes of Conduct, or in some other form.

3.2 Chapter Four of the Issues Paper considered a number of matters relatingto formal Codes of Conduct including:

(a) whether the principles of administrative ethics ought to be codifiedin detail;

(b) what subjects a specific code of conduct ought to address; and

(c) what purposes and outcomes a code of conduct can be expected toachieve or encourage.

3.3 While it is generally agreed that there is an ethical dimension topractically every aspect of an official's functions and conduct, there is littleagreement as to how a Code of Conduct should articulate that dimensionsufficiently to cover all possible eventualities, or ensure that all publicofficials comply with "the highest standards of professional conduct"usually enjoined by such codes.

3.4 The great majority of public officials are dedicated to high ideals of publicservice, committed to high standards of personal and organisationalintegrity, and sensitive to political and ethical dilemmas, even if unsurehow to resolve them in every case. Codes of Conduct may change theirstandards of daily conduct but little. Consequently, it is suggested bysome commentators that specific codes may be largely a waste of time,preaching only to the already converted.

3.5 The Issues Paper noted that the public services of the Commonwealth andall the Australian States, in common with the United States, Canada (atthe federal level and in most Provinces) and the United Kingdom, havedeveloped various Codes of Conduct for public officials, often backed bylegislation and regulations. Such codes usually identify a range of"principles", and specific offences which are punishable in degrees rangingfrom minor fines to dismissal. The scope of the issues covered, and therange of officials to whom such codes apply vary greatly, as do thesanctions provided for breaches and non-compliance.

3.6 The Issues Paper observed that there has been a trend in many professions(and occupations seeking `professional' status) to develop formal Codes ofEthics or Codes of Conduct, which seek to regulate, for example:

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(a) the conduct of members in relation to their clients, and othermembers;

(b) the accreditation of educational standards within the profession; and

(c) the right to practice and the control of fee-setting.

3.7 The Issues Paper suggested that, as far as administrative discretion isconcerned, there is unlikely to be significant disagreement that officialsought to be polite, fair-minded, sober, careful and diligent; or that theyshould provide (good) reasons for their decisions, be disinterested, andendeavour to implement as much of the spirit of the law as they can in thecircumstances.

3.8 However, when these principles compete for priority in a public sectorwhich values equity and fairness, and consistency of treatment in similarcircumstances, how is such discretion to be directed?

Codification and the Purposes and Functions of Codes

3.9 Under this heading the Issues Paper raised the question of whether theformal codification of an organisation's desired ethical standards servesany practical purpose. It noted that this question has been the subject ofconsiderable academic and professional discussion over the past decade.

3.10 The Issues Paper also asked whether it may be appropriate for any Code ofConduct to be based on a premise that officials ought to be treated asmature thinkers who are able to exercise judgement, rather than simplyrequired to obey rules.

3.11 It is important to recognise at the outset that the form and content of acode, its supporting administrative machinery, and the management andeducative purposes for which it is effective, will differ greatly according towhich style of code is adopted.

3.12 In general, Codes of Conduct including Codes of Ethics, rules of practice,etc. follow one of two models, which have come to be referred to as the"Justinian Code" model, and the "Ten Commandments" model.

3.13 In brief, the Justinian Code approach (after the Roman Emperor Justinianat whose direction extensive legal codification took place) endeavours toprovide an exhaustive, fully-articulated set of regulations and precedentsfor every possible eventuality, in order to minimise the need forinterpretation.

3.14 There is an obvious conceptual and practical difficulty in regulating forevery possible eventuality in an uncertain world. Further, such anapproach to ethics regulation requires centralised and comprehensivedocumentation and control of the complex administrative system which isthe inevitable result of such a scheme, as the US experience with its Officeof Government Ethics and associated complex regulatory structuredemonstrates.

3.15 The Justinian model suffers from the additional difficulties ofendeavouring to "justify today's decisions on the basis of yesterday's", and,sooner or later, rendering the officials who are subject to such a regimeincapable of dealing with ethics matters for themselves.

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3.16 By contrast, a Ten Commandments model sets down a limited number ofgeneral principles, with a degree of explanation to assist decision-makersto apply those principles to dilemmas and to decide between competing orconflicting principles in particular cases.

3.17 A Ten Commandments model may provide less certainty than that claimedfor a Justinian Code approach, and it is subject to criticism, especiallyfrom hard-pressed managers, that it provides few black-and-white correctanswers or precedents which they can rely on. However, the process ofdiscriminating and deciding between competing values required by a TenCommandments model is in itself valuable both in terms of a likely betteroutcome in a particular case and for the insights it may bring to thoseinvolved concerning the organisation's values and practices.

3.18 Furthermore, the consistency claimed for the Justinian Code approach canbe illusory. In the real world, few cases are absolutely identical, and evenwhere they are, what is required by justice, or by good management, mayrequire just the sort of discretion in treatment that a prescriptive andexhaustive code denies. Code jurisdictions usually develop someprecedents clarifying uncertain texts.

3.19 In practice, most Codes of Conduct exhibit elements of both the Justinianand Ten Commandments approaches. Their efforts to set down acceptablestandards of official conduct generally encounter a range of difficulties,including:

(a) the apparent complexity of the task, in particular the need tobalance guidance on the application of general principles with theneed for the advice or rule to be specific enough to be useful, giventhe evident impossibility of providing specific rules for everyeventuality;

(b) conceptual confusion over such matters as "community standards","the public interest", "ethics", "moral obligation", "official duty","responsibility", "accountability" and "professional ethics", to namebut a few;

(c) the evident difficulty of "legislating for morality", particularly wheresuch codifications are imposed on staff unilaterally, andimplemented ineffectively, selectively and inconsistently;

(d) the need to meet the differing, and often conflicting, needs ofpotential end-users of such codes;

(e) failure to recognise adequately the distinction between the officialcapacity and the private capacity of an individual official; and

(f) failure to recognise adequately the distinction between thenormative and the regulatory aspects of the management of theconduct of officials.

3.20 The approach currently taken at the federal level and in most States of theUnited States, is broadly that of a Justinian Code. In general, a TenCommandments approach has been preferred by the federal civil service ofCanada, the Commonwealth, by Queensland and most other AustralianStates, and New Zealand.

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Issue 4.28 Is there a need for a code of conduct to be reasonably specific toreassure the public that appropriate standards of official conduct have beenestablished, that there are accepted principles guiding the exercise of discretionarypower by officials, and that the conduct ofofficialscials is regulated effectively?

Issue 4.29 Is it desirable that a code of conduct for officials be aformally-expressed and public document, which sets out both its general purposeand an indication - at least in general terms - of the consequences of a breach ofthe code, or is it sufficient that the standards of official conduct be the subject ofconventions which are generally agreed and observed?

EVIDENCE AND ARGUMENTS

3.21 (a) Dr G Davis (T25) stated that the Codes of Conduct review and itsoutcomes are regarded very seriously by the PSMC:

" ... it's our [the PSMC] interest to have a code of conduct which is sufficientlydetailed so that not only public servants can read and understand it but the ChiefExecutives can use it as a basis of action in disciplinary matters, should thatbecome necessary. So we want a code of conduct that's specific, that can bereferred to and used in a sense as the basis of charges and therefore can also betested in an appeals forum so that anybody who charged with a breach of the codehas some comeback. "

(b) While the PSMC argued that sufficient detail was necessary, theQueensland State Service Union (S9) indicated that a specific codewas not desirable:

"It is not possible to construct a rigid framework around judgements of what isethically correct. `Rules of thumb' are not appropriate nor capable of applicationin this regard.

Public servants must evaluate every circumstance which they confront upon itsrelative merits.

... specific rules may often be inadequate to deal with the vast range of realambiguities which can face practising managers."

(c) Professor Caiden has argued that there are so many ethical issuesand different professions in the public service that:

" ... a universal code tends to be `so general as to be useless or so specific as to beunworkable '. Codes set out the highest values - what ought to be, not what is.,,(1981, p.148).

(d) The Joint Submission (S15) held that a balance between reasonablespecificity and unrealistic prescription can be achieved:

"Most Departments preferred a reasonably specific code of conduct when asked ifthey wanted to reassure the public that appropriate standards of official conducthave been established, that there are accepted principles guiding the exercise ofdiscretionary power by officials and that the conduct of officials is regulatedeffectively.

However, it should be noted that it is not possible to produce a code which is sospecific that it will act as a guide as to how a public servant will act, and in allother cases the majority of Departments were opposed to the introduction of aspecific code of conduct. They also felt public confidence could be boosted byexpressing the code of conduct in a public document (see 6.15).

One Department suggested that the code of conduct should simply complementexisting statutes and the regulations thereunder which govern the operations andperformance of the public service - there is no need to be specific or all embracing."

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(e) " ... a middle ground needs to be chosen between sets of rules that are inflexiblyapplied and, at the other end of the continuum, leaving it to the internalisedethical standards that public officials have acquired through education and other

processes ." (CJC (S29)).

(f) ICAC (S34) stated that the adopted language and style in a codeinfluences its effectiveness as a communication tool, plain Englishbeing the preferable approach:

"Those [organisations] which employ staff with diverse educational and culturalbackgrounds may need to consider simplified or summarised versions and, insome circumstances provide translations . Pronouns which target the audiencesuch as `IT 'we' or 'you' are likely to have a greater impact than use of the third

person . Prescriptive words, such as `must or `should, will make a positive

contribution to the code 's impact."

(g) "Unless there is a written `code of conduct' there will not be any common yardstickor basis for education, reference or measurement of public officials' conduct."(Livingstone Shire Council (S5)).

(h) Rockhampton City Council (S10) indicated support for a Code ofConduct for local government in Queensland which would be basedon "... the general principles outlined in the New South Wales code and manual. "

(i) The Joint Submission (S15) advised that the majority ofdepartments believed that public confidence would be promoted byexpressing the code of conduct in a public document.

(j) "In the course of my work in the Human Resource Branch, I have had cause toquestion a number of practices and found the explanations to be superficial, adhoc but convenient to those in power. To perform my work in accordance withregulatory requirements and in keeping with the principles of equity and merit, Ifound myself in disagreement with my managers. My own personal treatment wasunsatisfactory and I appeared to be growing less popular the more seriously I tookmy responsibilities. "

and

"The benefit of standards and written policies is that people know whatinformation and behaviour they are entitled to receive, and they can expectmanagement to take transgressions seriously. Frameworks are necessary andneed to be well considered. Total managerial discretion is not appropriate, sinceconsiderable creative justification can be employed when required." (G Gorrie

(S14)).

(k) Steinberg and Austern cautioned:

" ... Laws and rules that attempt to define integrity, judgement, and ethicalresponsibility must interact with official standards. If they do not, their statusmay define official morality but will be impractical and thus will not impact uponthe officials to whom they are directed. In addition, laws that attempt to defineconduct may produce official conduct that is rule-bound and unimaginative. Inshort, laws and rules that address the troublesome subject of integrity must beexpressed in simple language and should offer examples or case studies." (1990,

p.107).

(1) The Joint Submission (S15) stated that there was limited supportfor conventions to regulate official behaviour:

"Only one Department supported the use of convention instead of a formal code ofconduct.

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(M)

All other Departments agreed that the code of conduct should be formallyexpressed in a public document. It was felt this would boost public confidence andaid in accountability, and that conventions may lead to confusion as to what isgenerally agreed and observed.

However, it was noted that consequences of breaches are more appropriatelyaddressed in other existing public documents such as the Criminal Justice Act. "

"That codes of conduct for officials and the consequences of any breaches beformally expressed as a public document." (Queensland WatchdogCommittee (S19)).

(n) Livingstone Shire Council (S5) also preferred a formally expresseddocument rather than a set of conventions:

"`Conventions' are inappropriate as they are often more recognisable for thedepartures made from them than for their relevance in everyday matters. Thecode should be a formally expressed public document which establishes clearconcise objectives and standards, and indicates the consequences of any breach."

(o) Bundaberg City Council (Sll) submitted that it would be valuablefor the Code of Conduct to be a public document:

"The publication of the document would reassure the public of the high standardof conduct required of Public Officials as well as creating a climate of trustbetween all parties. "

(p) "This should be a formally expressed code with full public access and itsacceptance should [be] a prerequisite to any employment." (Cr H Schwabe(S18)).

(q) Bribie Island Chamber of Commerce Inc. (S28) submitted that Codesof Ethics should be made available to the public.

(r) The CJC (S29) agreed that the code should be a formally expressedpublic document. However, the CJC submitted that the formulationof a Code of Conduct and the prescribing of offences should not beseen as part of the same process because:

"It is accepted that a serious breach of the code may constitute a breach ofdiscipline, official misconduct or a criminal offence. If so, it would be treated assuch. However, apart from these matters, many code of conduct deficiencies willrequire only to be recognised as such and corrected by appropriate counselling ortraining. Direct linking of prescribed penalties with a code of conduct is bestavoided. This separation of codes of conduct and disciplinary codes isparticularly appropriate in the Queensland Public Sector where the latter havetraditionally been incorporated in legislative provisions."

ANALYSIS OF EVIDENCE AND ARGUMENTS

3.22 There is clear acceptance of the need for a Code of Conduct for officialswhich is a formally expressed uniform public document.

3.23 Strong support for a specifically-focussed code was expressed at the PublicSeminar by Dr G Davis of the PSMC, who argued for a detailed code thatcould be used for reference and as a basis for disciplinary action.Specification of forms of behaviour so unethical that they can be clearlyexpressed and judged illegal is best left to regulations or legislation. AsProfessor P Finn observed, the difficulty with such an approach in a code. isthat " ... we often don't have a very clear understanding of what we are punishing."(T54). This view was supported by the Joint Submission (S15).

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3.24 The Queensland State Service Union (S9) argued that specificity isimpractical, reiterating the notion expressed previously that complexityforces the exercise of discretion by officials. Like the Livingstone ShireCouncil (S5), the CJC (S29) sought the middle ground between rules and"... internalised ethical standards ... acquired through education and other processes."

3.25 Public access to a code was supported by the Queensland WatchdogCommittee (S19), the Livingstone Shire Council (S5), the Bundaberg CityCouncil (S11), Cr H Schwabe (S18), the Bribie Island Chamber ofCommerce Inc. (S28) and the CJC (S29).

3.26 Most of the contributors to the Public Seminar observed that thedevelopment of consistent conventions of ethical conduct should occur overtime with the continued promulgation of general principles of ethicalstandards through a Code of Conduct and a mutually reinforcing programof training/education.

3.27 The view taken by the Commission is that Codes of Conduct, properlystructured, supported and implemented, have the potential to serve anumber of useful purposes, and that governments and administrationshave an obligation to develop, promulgate and live by such codes.

3.28 Far from "optional extras " to good public administration, Codes of Conductare essential for two main reasons:

(a) given increasing cultural pluralism and the pace of change in oursociety, if managements do not publish Codes of Conduct to guideand inform staff as to standards of acceptable conduct in theirorganisations, it is the management which will be held accountablewhen things go wrong; and

(b) while government has no business regulating an individual'smorality, Codes of Conduct for public officials have a valuable role toplay in restoring and maintaining community confidence in publicmanagement or, more pragmatically, if an organisation wishes to beseen as responsive to the community it serves, and to that endexpects the conduct of its officers to reflect community standards, itis necessary for the organisation to spell out what those standardsare.

3.29 In addition, the Commission considers that formal codes may be ofconsiderable value to new recruits to public sector employment, and tomanagers, counsellors, trainers, and supervisors, and indeed all officialsfaced from time to time with a problem involving a measure of ethicaldifficulty.

RECOMMENDATION

3.30 The Commission recommends that formal Codes of Conduct developedfor all. categories of public officials in Queensland .

3.31 In Chapters Four, Five and Six of this Report the Commission reviews theprovisions of the Queensland Code and makes recommendations for newprovisions to be included in a new Code of Conduct for appointed publicofficials. Chapter Seven deals with the special circumstances which a plyto elected representatives; the Commission makes recommendations aboutthe content of a Code of Conduct which it believes should apply to thatcategory of officials.

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Basic Principles

Issue 4.43 Are general statements of ethical principles, for example the Charterproposed by Bailey, useful? If so, should such a statement be supported andexplained by some specific additional code(s) of conduct, or aninstruction /training/interpretation handbook, or other explanatory material?

Issue 4.44 Would a separate statement of particular ethical principles for s wificial ?categories of officials be preferable to a single general statement for o

If so, which categories should be singled out and why?

3.32 The Issues Paper noted that neither specific rules nor generalisedprinciples are capable of providing categorical answers on how to decidebetween competing values.

3.33 The difficulty with specific rules is that circumstances are rarelyreplicated. Since real-life dilemmas rarely, if ever, fit rules or precedentsexactly, the problem of balancing competing values becomes paramount.

3.34 Where Codes of Conduct attempt to reduce to written form the varioustraditions and expectations of a public service culture, they oftenencounter major difficulties. On the other hand, the application ofunwritten conventions and precedents may prove even more difficult forinexperienced staff and for supervisors seeking to take effectivemanagement or disciplinary action in response to an apparent breach ofstandards.

3.35 The Issues Paper noted that Bailey's proposed Oath of Office is essentiallya basic statement of generalised ethical principles which sets boundariesaround acceptable conduct for all public officials other than electedrepresentatives and statutory office-holders:

"I will play my full part in the management of the administrative activities of thegovernment and the staff of its agencies without fear or favour to those with poweror influence. I will uphold the rule of law. I will serve the Minister, regardless ofwho holds that office, to the best of my ability and loyally, within the law. I willensure that those members of the public affected by my administration are servedaccording to their entitlement, without unlawful discrimination or any profit oradvantage to myself. Nor will I assist any to obtain unfair advantage from oraccess to the Government and its services and facilities.

I will endeavour, by study, example and discussion, to uphold the traditions of thePublic Service, to treat my colleagues in the public service fairly and honestly, todeserve their trust, and to ensure that younger members of and new entrants to theprofession are assisted in their development and promoted according to theirmerit." (Bailey 1989, p.230).

EVIDENCE AND ARGUMENTS

3.36 (a) "A single general statement for all Officials would be preferred to individualstatements for specific categories of officials. It is important that codes of conductare uniform and readily identifiable with Officials." (Bundaberg City Council(S11)).

(b) "Almost all Departments found the general principles proposed by Bailey usefuland there was significant support for a training or interpretation handbook tosupplement the code of ethics.

One Department thought the general statements of ethical principles would beacceptable as the introduction or preamble to a Code, but only a specific codecould be effectively enforced. The Code must be sufficiently detailed as to be abenchmark to which public officers can refer without having to make furtherenquiries or seek additional opinion. " (Joint Submission (S15)).

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(c) E Moore of ICAC (T91) advised that the Code of Conduct whichapplies to all public sector employees in New South Wales hadrecently been revised , and explained:

"This general code stresses the unique responsibilities of public sector employees toboth the public of New South Wales and the government. It has been issued as aframework from which each department or authority is required to develop anorganisation-specific code."

(d) ICAC (S13) stated : " ... a code of conduct should be specific to the agencyconcerned."

and

there may well be variation between organisations carrying out differentfunctions, both in the areas identified as requiring ethical guidance, and in theamount of detail required."

(e) "Separate statements for specific categories in clear relation to the level ofresponsibility ... " ( Cr H Schwabe (S18)).

(f) codes of conduct or the wider considerations of ethical behaviour and actionsby staff in the public sector should make allowances for differences betweenmanagerial generalists and technical specialists ." (Professor Selby-Smith(T64)).

(g) The CJC (S29) stated that the general code should establish broadunderpinning principles, values and definitions for such concepts ashonesty, accountability and integrity. The CJC submitted that thegeneral code :

should be positioned as a source document that establishes ground rules.Individual agencies would need to devise internal codes by either detailing orextending the broad principles or including addendums to cover special functionsand requirements. Such ability to extend (but not detract from) a general codegives those agencies that choose such a course a degree of ownership' of the code."

(h) F Haly (T76-7) referred the Commission to a paper titled "CorporatePractices and Conduct" produced by the Business Council ofAustralia which:

"... attempts to encourage public companies to develop, publish and enforce codesof ethics which relate to their own specific company. The paper details that thefollowing elements be used as a guide to companies developing their own codes:-

(i) accounting practice, conflicts of interests;

(ii) marketing issues, pricing practices, descriptions of goods and services;

(iii) employment practices, equality of employment opportunity, occupationalhealth and safety; and

(iv) support for community activities, attention to neighbourhood impacts.

It is obvious that regulations enforced can facilitate an improvement in thestandard of Australia's corporate behaviour, however ultimately it is everyindividual involved who can improve Australia's reputation with regard to ethicalbehaviour by observing both the spirit and the letter of the law. " (T77).

(i) Professor Finn (T45) argued that separate provisions for particularpublic officials are necessary because all officials do not perform thesame type of tasks and consequently are often faced with verydifferent sets of circumstances:

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in setting standards of conduct beyond the criminal law it's important torecognise that separate provision will almost of necessity have to be made fordiffering circumstances in which particular officials find themselves. The secrecyobligation we would wish to impose on a doctor in a government hospital shoulddiffer markedly from that of a line official in a Ministerial department. Theconflict of interests regulation imposed on an officer of a state tourist bureaushould, equally, differ from that of an employee in a state owned commercialenterprise.

There may be virtue in a service-wide code of conduct but I would agree with theapproach taken in New South Wales and favoured by the ICAC in that state, thatif codes are to have a positive guiding role for officials in individual agencies theneach agency should be obliged to propound a code of conduct suited to thecircumstances in which officers in that agency find themselves."

(j) Dr G Row (T136), President-elect of the Queensland AMA, stated:

" ... I'd argue that a code of conduct for public sector officials that includesmedical practitioners must acknowledge that the professionals who are publicsector officials have an undoubted direct ethical responsibility to their electorate.A medical practitioner in the public sector may thus be obliged to make publiccomment. This may be on behalf of the employer or as a representative of theprofessional association or other properly constituted body, or as an individualmaking informed and responsible comment on issues such as public informationon health matters, patient care, public safety, provision of services, or theimplementation of policy where it affects these areas."

(k) A Forward, Director of the (Commonwealth) Merit Protection andReview Agency (T143) believed that:

" ... there should be a service-wide code of conduct, subject to frequent review,which identifies a wide range of unacceptable behaviours and provides guidanceto public servants, and which also provides a basis on which tribunals andsimilar bodies can determine breaches and impose sanctions. There should alsobe more specific codes developed by and for particular agencies to reflect the needsof their particular areas of activity."

ANALYSIS OF EVIDENCE AND ARGUMENTS

3.37 Public officials hold a wide variety of positions, perform a wide variety offunctions and come into office by a variety of means. Consequently, asmany submissions have pointed out, there is a need for general Codes ofConduct and agency-specific rules, which can deal with the particularcircumstances encountered by various categories of official. On the otherhand there are fundamental principles which apply to all officials, and anumber of submissions acknowledged the universal applicability of suchprinciples.

3.38 ICAC (S13) and Cr H Schwabe (S18) supported the idea of agency orofficial category specific codes of conduct. ICAC (S13) further pointed outthat important distinctions may exist between agencies' functions.

3.39 The Bundaberg City Council (S11) and the CJC (S29) both supported theconcept of a general code for public officials, as did A Forward (T143). TheCJC and Ms Forward both advocated a middle path where the generalcodes could be supplemented with specific rules of particular agencies.This proposal satisfies the concern expressed by Professor Finn at thePublic Seminar that "... the conflict of interest regulation imposed on an officer of astate tourist bureau should ... differ from that of an employee in a state owned commercialenterprise." (T45).

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3.40 The Commission has come to the conclusion that Codes of Conduct forpublic officials serve an essential purpose in establishing standards ofethical behaviour for officials. The Commission believes that such codesshould be established for all categories of officials, appointed and electedalike.

3.41 The Commission further believes that there are strong arguments for thedevelopment of a statement of fundamental ethical principles (a level 1"code" - see Table 2.1). This statement should apply across all categories ofpublic officials, appointed and elected.

3.42 Below the level 1 statement of universal principles the Commissionconsiders there should be a number of level 2 codes which are applicable tovarious categories of appointed and elected officials respectively.Furthermore, the Commission acknowledges the need for agency-specificadjuncts (level 3 codes) to the general level 2 codes. These adjuncts aremost appropriately developed by agencies themselves.

3.43 Thus in respect of appointed officials the Commission is of the view thatthere should be developed:

(a) general Codes of Conduct (level 2 codes) which sets out in somedetail the proper application of the fundamental ethical values andprinciples relevant to public office in Queensland; and

(b) agency-specific rules, where necessary or appropriate, which set outthe particular requirements of individual organisations for thepurpose of ensuring that official conduct matters are recognised anddealt with in ways which reflect each organisation's circumstances.

3.44 Such an approach satisifies a major prerequisite of an effective Code ofConduct: "ownership" by those to whom the code applies. Where agenciesdevelop, by an appropriately consultative process, their own specific rulesgiving effect to the general principles established by a general code, theCommission believes that the agencies and staff involved will developvaluable insights into their ethics requirements and priorities.

3.45 The Commission considers that the circumstances of elected officials aresufficiently different to warrant a separate general level 2 Code ofConduct. This matter is dealt with in Chapter Seven of this Report.

3.46 The Commission has also considered whether it should attempt togenerate Codes of Conduct for the Queensland judiciary and statutoryoffice-holders. While the Commission believes that the proposedfundamental principles are appropriate to these officials, it does not intendto develop level 2 codes for the judiciary or statutory office-holders in thisReport. This task could appropriately be carried out by the relevant bodiesin consultation with the administrative structure proposed in ChapterEight.

RECOMMENDATION

3.47 The Commission recommends that:

(a) General Codes of Conduct should be developed for appointed andelected officials.

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W A general statement of fundamental ethical° principles should applyto all categories of public officials, and support more detailed ethicalstandards in general Codes of Conduct.

(c) Such codes should supported to the extent necessary by thepromulgation of agency-specific rules consistent with and expandingon the fundamental principles and general Codes of Conduct. Suchrules should be issued by Chief Executives after they have beendeveloped using appropriate processes of consultation involvingaffected staff and the relevant union(s). They should take the formof formal adjuncts to the relevant general code and have the force ofthat code.

(d) General Codes of Conduct should be developed for the Queenslandjudiciary and statutory office-holders.

3.48 In this Report the Commission has prepared draft level 2 codes forappointed and elected officials. The Draft Code of Conduct for AppointedPublic Officials forms Appendix F; the Draft Code of Conduct for ElectedRepresentatives forms Appendix G. The same statement of thefundamental principles can be found in each draft code. The Commissionhas provided authority for the preparation of the adjuncts in the draft Bill(Appendix E) in the Part 4, Division 2.

Oath of Office

Issue 4.45 Should such a statement [of ge principles] take the form ofan "Oath of Office", to be sworn by officials on first tak ing up a relevant position?

3.49 Historically new public officials have been required to swear an Oath ofOffice upon or shortly after appointment. The purpose of the ceremony hasgenerally been twofold:

(a) it has served to acquaint recruits with the basic responsibilities oftheir new positions; and

(b) it has provided a ceremonial occasion which underlines thesignificance of an appointment to the public sector.

3.50 At present MLAs are required to swear an Oath (s.4 of the Constitution Act1867-1988) or make an Affirmation (s.5) on taking their seat in theLegislative Assembly. Aldermen and Councillors have a similar duty andin addition must "make and subscribe" an oath of allegiance anddeclaration of office (s.7(2A), LG Act).

EVIDENCE AND ARGUMENTS

3.51 (a) The Joint Submission (S15) did not endorse an Oath of Office: "Therewas very little support for an `Oath of Office'."

(b} Similarly the PSMC (S24) did not support the introduction of anOath of Office:

"The introduction of an oath of office to be sworn by newly appointed officials doesnot serve any useful purpose. Swearing oaths and issuing certificates just becomesa substitute for managers' on-going educative role."

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(c) 'A more effective approach would be to ensure that officials taking up duties in anagency or department are required to spend at least half a day workshopping thecode of conduct of the department with specific issues and decisions beingrole-played as part of the learning process. These training sessions could betailored to reflect the functions and accountability of the various levels ofresponsibility." (CJC (S29)).

(d) On the other hand, A Sandell (S6) stated: "To have all Officials take thisoath would strengthen the observance of the proposed Code." Mr Sandell (S6)agreed that new employees should take the oath on appointment.He submitted: "Existing officers would be asked to take the oath voluntarily.No action of any kind would be taken against an Officer who does not take theoath."

(e) Submissions from local government supported the swearing of anOath of Office. The LGAQ (S16) submitted:

(f)

" ... a `Code of Ethics' is of value in setting out the principles required of those whoserve the public. An `Oath of Office' sworn by all elected representatives andofficers is also of value in reinforcing the significance of their position and thestandards required."

"Council supports the need for Codes of Conduct and an Oath of Office for allLocal Government Public Officials provided the codes are not used to preclude anysection of the Community participating in Local Government." (WoongarraShire Council (S27)).

(g) At the Public Seminar A Sandell (T25) asked Dr Davis to explainwhy the PSMC had determined not to support the swearing of anOath of Office and pointed out that:

our Governor-General, state governors, cabinet ministers, members of thedefence forces and many other people have to swear either an oath of office or anoath of allegiance, or perhaps a combination of both, and as far as I'm aware theybecome conscious of the responsibilities conferred on them by that oath."

Dr G Davis (T25) responded that the PSMC considered that a Codeof Conduct was more important than an Oath of Office and in anyevent, an Oath of Office would achieve little:

" ... because public servants at the moment do not take an oath of office, and tosuggest that the status quo should prevail does not seem to me necessarily anattack on oath of office held in other levels of government. The fundamental pointis that we saw it as serving no particular purpose. As an addition to currentprocedures it added little and it certainly could not take the place of a code ofconduct. I guess what we were saying was that we saw it as far morefundamental getting this code up than introducing things like oaths of offices as asubstitute. "

(h) Dr J Uhr (T26) stated:

"... people are all too aware that the one of the consequences of oaths in Americanjurisdictions has been to reinforce a kind of unpredictable but maybe publicinterested professionalism on the part of public officials who will be able to holdback from immediate or full compliance with executive government or, indeed,parliamentary pressure as well because of this pledge to uphold something biggerthan the government of the day, the constitution - it simply provides for a lot offairly meaty and gritty interpretation by public officials as to what theconstitution really means to them. That may be altogether a good thing but it'ssomewhat un-Australian. "

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Commissioner Hughes (T26) commented at the Public Seminar:

' ... to the extent that we're looking at what various people in Canberra, from SirGerard Brennan on down, have been talking about, the new constitutional regimethat may be emerging in Australia, are we perhaps moving back in an 18th or17th century direction, and therefore an American direction, and that perhaps theoath may have more mileage in it than one might think if one looked purely atwhere we're at at the moment."

Dr Uhr (T26) agreed with Commissioner Hughes and stated:

(j)

"One of the advantages I see in taking people like [Woodrow] Wilson seriously ... isthat they're more conscious than we are of that lineage that you're talking aboutand can relate oaths to constitutional principles relating to checks and balances.Our muteness has got us by pretty well for so long, but perhaps it's time westopped being mute, as Glyn [Davis] suggests. "

Dr Davis (T27) cited a problem presented by the South AustralianSalisbury case:

" ... where a Commissioner of Police who had taken an oath then justified hisrefusal to provide information to the Premier of the day on the rounds that hisoath and allegiance was to the Crown. So presumably if the Queen wanted toknow, he'd tell her, but if the Premier asked, bad luck."

ANALYSIS OF EVIDENCE AND ARGUMENTS

3.52 Submissions and comment at the Public Seminar indicate that opinion isdivided on the desirability of an Oath of Office for appointed and electedofficials. The Joint Submission (S15) and the PSMC (S24) were not infavour of one. The Joint Submission (S15) claimed that Oaths of Officehave never featured in Australian public services (although theCommission understands that they have, in fact, previously been relativelywidespread). The PSMC (S24) argued that an oath would not serve anyuseful purpose.

3.53 However A Sandell (S6), the LGAQ (S16) and Woongarra Shire Council(S27) supported the swearing of an Oath of Office.

3.54 A central concern is the object of the oath to which allegiance is beingsworn. Jurisdictions differ on this matter. For example, an official takingthe US Oath swears to uphold the nation's Constitution which containsspecific provisions separating the three arms of government andestablishes checks and balances of power between them. The USConstitution draws its power from the people to create the nation and itssystem of the federal government, and lies beyond the control of theinstitutions of government that it creates.

3.55 Australia is in a very different position. Legally our political institutionsderive from the Crown in Parliament, and for the most part our workingsystems of government are not defined within any document, including theConstitution. Dr Uhr (T26) stated at the Public Seminar that our

" ... traditional reliance ... has been some sort of pledge to the Crown, and theCrown ... is remarkably elastic ... [which] makes it a little difficult for people ... toknow exactly what it's going to mean on the ground."

3.56 This uncertainty might prevent meaning being given to any Oath thatcould be based on Queensland's Constitution Act 1867-1988.

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3.57 Moreover, it is noteworthy that according to the Joint Submission (S15) noAustralian public service has ever promulgated such an Oath. As Dr Uhrobserved, such an oath " ... may be altogether a good thing but it's somewhatun-Australian." (T26).

3.58 Notwithstanding these arguments, the Commission is aware of otherarguments supporting introduction of a formal Oath of Office for publicofficials. For example, the ceremonial aspects of swearing an Oath areuseful in underlining the "rite of passage" for younger recruits; the Oathprovides an opportunity for acquainting a new officer with their role andresponsibilities as a public official. The Oath ceremony might be anappropriate time to give new officers copies of the Code of Conduct which isrelevant to their position and discussing its significance at that time.

3.59 On balance it is the Commission's view that, although an Oath of Officemay have benefits in compelling attention to public sector ethics, suchfunctions can be performed by the general (level 2) code proposedpreviously. The level 2 code based on the statement of fundamentalprinciples proposed by the Commission will set out the same ethicalobligations which usually characterise formal Oaths.

3.60 The Commission is also not certain of the appropriateness of an inductionceremony based on an Oath for the majority of public officials, particularlythe more junior staff.

3.61 However, the Commission believes that it is still important for symbolicand educative reasons that elected representatives should continue toswear an Oath of Office or make an Affirmation on taking up their duties.The significance of their functions and responsibilities is such that a publicdeclaration of their intention to act in accordance with the ethicalobligations which attach to elected office is very appropriate.

3.62 The Commission also notes that under the Parliamentary CommissionerAct 1974-1991, the Queensland Ombudsman is required to take an Oath tofaithfully and impartially perform the duties of office. Given thesensitivity and importance of the issues with which the ParliamentaryCommissioner deals, the Commission believes it is appropriate that thisrequirement should continue. It may be that there are other statutoryoffice-holders for whom an Oath of Office would be appropriate, and thePremier's Department might usefully review this question.

3.63 In the Parliamentary Commissioner's Second Report (1975-76) theQueensland Ombudsman stated:

'As provided in the Parliamentary Commissioner Act, at the date of myappointment I undertook an oath to faithfully and impartially perform the dutiesof office, and that I would not, except in accordance with the Act, divulge anyinformation received in the course of investigations made by me. The importanceof this oath is such that I would not have accepted the appointment had I notbelieved that I could be completely impartial in the discharge of duties of theoffice." (1976, p.2).

RECOMMENDATION

3.64 The Commission recommends that:

(a) appointed public officials should not be required to swear an Oath ofOffice or make an Affirmation on taking up their duties; and

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(b) an Oath of Office or Affirmation should continue to be regarded asimportant for elected representatives and statutory office-holders asa formal demonstration of their commitment to the ethicalresponsibilities of their office.

Personal , Professional and Organisational Ethical Standards

Issue 4.46 How should individuals seek to resolve fundamental disputes involvingtheir personal ethical standards and those of their organisation?

3.65 Every individual operates with a personal set of values even though thesemay not always be well developed or articulated. Those who work fororganisations sometimes discover that their personal or professionalvalues are not wholly consistent with those of their employer. Thisdifficulty may be particularly acute for public sector employees whose dutyit is to follow the directives of the elected government and implement awide range of government policies (including some relating to theiremployment), some of which may conflict with their own ethicalstandards. Most public sector Codes of Conduct fail to address adequatelythe question of how an employed public official should seek to resolve suchconflicts.

EVIDENCE AND ARGUMENTS

3.66 (a) The Joint Submission (S15) stated:

"The most commonly preferred solution was to take up the matter with one'smanager . If no solution is reached, the officer could take it further up the line tothe Chief Executive or seek advice from the PSMC. If no satisfaction is obtained,then the matter could be taken to the officer's union.

Some saw a solution in shifting the responsibility for the decision away from theofficer who has a conflict.

There was minority support for the idea that an officer should always decide infavour of the agency. The basis of this is that if an officer was made aware of thestandard before commencing employment, that officer is effectively personallycommitted to that standard by accepting employment. Obviously, should the codetake precedence it would be appropriate to require an Oath of Office, a conceptwhich has already been disposed of (see 6.18)."

(b) Dr G Row (T135-6) indicated that not only can there be fundamentalconflicts between personal and organisational standards but alsoconflicts between the law and professional ethics:

"Changes in the law occur very slowly and the law is simply too inflexible to offerany significant guidance to practitioners ... In the Criminal Code [Queensland]doctors, in compliance with their ethics and the humanitarian care of patients,may withhold treatment or issue `Not For Resuscitation ' orders. Now, this is anethical imperative but a breach of the letter of the law.

... those who nominally make the laws - those who must enforce them, and we whomust abide by the laws , need to subscribe to at least some common system ofethics. "

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ANALYSIS OF EVIDENCE AND ARGUMENTS

3.67 Officers who find themselves in situations where their personal valuesconflict with behaviour required of them by their positions may have anumber of strategies available for dealing with the problem. They can actin accordance with their personal principles, or they can act as required bythe organisation (eg. in legislation, administrative rules or a directive froma more senior officer). In serious cases of conflict which cannot be resolvedin discussion with senior officers there may be other avenues available,such as transfers or, ultimately, principled resignation.

3.68 The argument advanced by the Joint Submission (S15), namely thatofficers informed of agency standards prior to their joining that agencyeffectively commit themselves to those standards upon joining, is valid, butmay go too far in that in many situations the application of thesestandards may be unclear. An officer always has the option to resign,accommodate to the agency's position or to seek further explanation.Discussion and negotiation are usually possible. However, theCommission has noted that it is far from clear that public sector employeesare given adequate information on the required standards of ethicalbehaviour for them to be able to effectively deal with conflicts.

3.69 It is likely that most people will accommodate themselves to the position ofthe agency. The difficulty with the proposition of principled resignation isthe personal, financial and career repercussions for the official. Where itis not practical for an official to resign, they may have to accommodate theorganisation's position; their performance may suffer as a consequence ofan unresolved dilemma.

3.70 Typically, Codes of Conduct for public officials fail to provide a rationalewhereby, in a particular case, competing or conflicting values may beresolved in a structured way which reflects the relative importance of thevalues involved. Frequently, Codes of Conduct for public officials will seekto dissolve this difficulty by excluding, say, the individual's personalmorality or professional ethics from consideration.

3.71 Alternatively, a code may seek to take a "situation ethics" approach:leaving it up to the individual judgement of the official "in the light of theparticular circumstances at the time".

3.72 In the Commission's view it is important to recognise that an official'spersonal ethical standards may be relevant to public administration, andthat officials should be encouraged to apply their personal ethics standardsin appropriate circumstances.

3.73 Similarly, the Commission recognises that an individual official'sprofessional ethics standards, to the extent that they are broadlyconsistent with the values of the community, can provide a valid basis forthe critical evaluation, on behalf of that community, of the formal legaland ethical aspects of official conduct standards, and an official's personalethical standards.

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3.74 Officials are expected to act lawfully in implementing an electedgovernment's policies and programs to serve the public interest, and not toact in ways which might undermine public confidence in the government orthe administration. These expectations are characteristic features of therole of the public official in our society, and arise as structuralconsequences of the way this society's system of government operates.Codes of Conduct for public officials usually deal with such obligations insome detail, as they are central to an understanding of the role of thepublic official.

3.75 In addition, the law in relation to the duty of service owed by an employeeto an employer (eg. the responsibility to respect the employer's legitimateinterests, the requirement to obey lawful directions, and the expectationthat employees will give "a full day's work for a full day's pay") lives riseto specific legal obligations. Codes of Conduct usually set own theemployer's expectations of appropriate standards of conduct relevant to thefunctions performed by employees.

3.76 In summary, the functional obligations of officials reflect their capacity asemployees and are predominantly structural and legal rather than ethicalin character. Where a dispute arises about the relative priority to be givento professional or personal ethical standards and the employmentobligations of an official, the functional and employment obligations of apublic official should normally take priority.

3.77 In those cases in which this approach would result in substantial violationof professional or personal ethics standards, a compromise solution willusually be appropriate.

3.78 Codes of Professional Ethics promulgated by the established professionsmay give rise to conflict with perceived legal duties of members of thoseprofessions employed in the public sector. Such conflicts are usually basedon differing perceptions between the organisation and the profession as towhat is in the public interest in a particular case.

3.79 Such conflicts may be open to resolution by reference to two generalprinciples which are embodied in the structure of our system ofgovernment:

(a) the ultimate right to determine what is in the public interest,insofar as the public sector is concerned, belongs to the responsibleelected representative, ie. the Minister; and

(b) the employed professional's principal obligation is to the employer.

3.80 It is important to recognise that, strictly speaking, the employedprofessional provides professional services or skills to clients of theemployer, on terms which the employer may determine. Where a disputearises between an employed professional's official duty and relevantprofessional ethics standards, a compromise will often need to be soughtwhich recognises the Minister's ultimate right to determine what is to bedone.

3.81 In practice, confusion and disputes may arise where employing agencies,for various reasons, leave much- to the professional discretion of theindividual professional, or adopt the Professional Ethics code of theprofessional body concerned, either positively or by default.

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3.82 Where a significant dispute arises between an employed professional andthe employing organisation on a professional ethics matter, it isappropriate that the professional body become involved as early aspossible, to ensure that the justification of the profession's ethicsstandards do not become the task of the individual professional.

3.83 Officials are not bound to follow official instructions which are clearlyunlawful or immoral. An official has an obligation to test what appears tobe an unlawful official instruction against the higher moral orreligious/ethical/human rights standards adopted by the community.

3.84 This principle may be difficult to put into practice in particular situations.However, in order to avoid undue disruption in the workplace, anappropriate process for dealing with disputed instructions needs to bedeveloped by agencies in their level 3 codes and understood by staff at alllevels.

RECOMMENDATION

3.85 The Commission recommends that any Codes of Conduct specify thatpersonal and professional ethical standards may properly be taken intoaccount by officials in resolving ethical dilemmas.

3.86 The Commission's draft Code of Conduct for Appointed Public Officials(Appendix F) contains provisions in Part 5 which implement thisrecommendation.

Ethical Judgement and Decision-Making

Issue 4.25 Is it preferable that public officials, at various levels of responsibility,have the necessary skills and the authority to analyse and make autonomousjudgements about ethics issues, rather than being required to apply detailed rulesand regulations?

Issue 4.26 Should public officials be more aware of the ethical bases of decisionsthey make, or advice they provide, in performing their duties?

3.87 These issues in the Issues Paper were expected to indicate what form ofCode would be preferred. A Code of Conduct devoted to general principleswill clearly require a quite different approach from a Code which sets downexhaustive rules for all possible contingencies, or attempts to do so.

EVIDENCE AND ARGUMENTS

3.88 (a) According to the Bundaberg City Council (Sll) it is preferable thatall public officials have the skills and authority to analyse and judgeethics issues rather than applying detailed rules and regulations:

"The applying of detailed rules and regulations may create circumstances inwhich decision making is inflexible resulting in determinations that are harshand lack balance."

(b) "The majority of the Departments agreed that it is better to rely on the skills of theofficers rather than detailed rules and regulations, though many thought atraining process should be undertaken to ensure these skills exist.

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It was also noted that assuming officers at lower levels would be subject to rulesand regulations, there will be some difficulty in deciding on a suitable cut-offpoint above which officers are unfettered by the rules.

Only one respondent thought that public officials at all levels would havesufficient ethical skills to remove the need for rules and regulations." (JointSubmission (S15)).

(c) Cr H Schwabe (S18) responded:

"This seems desirable but I do not believe that it is practical on all levels at thispoint in time. A long term educational process will have to precede this in orderto overcome the underlying inadequacies. "

(d) "In an ideal society public officials should possess the intellectual and moralauthority to make autonomous judgements about ethical issues based on the`highest good' and tempered with mercy and compassion.

In reality the EARC Survey 1991 indicates that 73% of public servants indicatedthat they saw the need to seek guidance from a code of conduct.

This need would presumably lessen after a period of education in ethicalprinciples and where there was continuing positive reinforcement of ethicalbehaviour. However, while there would be a lesser reliance on a written code, itwould retain some value as a means of maintaining consistency and as aneducative device.

A reasonably specific, publicly available code of conduct would greatly assistofficers to formulate their ethical standards, and the public to be aware of theongoing process. A single general code seems appropriate. " (CJC (S29)).

(e) The Joint Submission (S15) reported that:

"All Departments agreed that it is essential that, for officers to perform theirduties ethically, the basis for their decisions should be underpinned by certainprinciples of which they are made aware."

(f) The CJC (S29) submitted:

"72% of respondents to the 1991 EARC Survey agreed that ethical issues oftenarise as a significant consideration in their jobs. This would indicate a need forpublic officials to be made aware of an ethical framework within which decisionsare formulated. "

(g) E Moore of the ICAC (T91) observed that the approach adopted inNew South Wales is almost the reverse of that being discussed inQueensland:

"Our approach of starting from the bottom up has started from the assumptionthat those people who do the job are in the best position to know what ethicalconflicts are going to arise. Our job is to assist them to identify issues and developresponses. In contrast, discussions here appear to be focussed on devising ageneral code that can be imposed from the top. It will be important to see if sucha code reaches individual public servants delivering services. "

ANALYSIS OF EVIDENCE AND ARGUMENTS

3.89 This issue raised the question whether a code should take the form of alimited number of principles or be more prescriptive in nature. Theconsensus in the submissions was that it is not possible or desirable toprescribe rules for every possible circumstance which may present itself topublic officials. More general principles were preferred.

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3.90 The Commission has already acknowledged the arguments put forward inthese submissions when it concluded that a three level structure of codes,from general to specific, was required. No further recommendation isrequired on this matter.

Reasons for Decisions

Issue 4.27 Should public officials be required to justify decisions they make oradvice they provide involving competing or conflicting values , as a matter ofroutine? Why? If so, to whom? Why?

EVIDENCE AND ARGUMENTS

3.91 (a) Victims of Corruption (S7) strongly responded "yes" in directresponse to this question and instanced the refusal by theQueensland Corrective Services Commission to grant remission toits President, Dan Fritz. In addition, Victims of Corruption referredto p.91 of the Fitzgerald Report:

" ... there were a number of occasions when persons and organizations who wereinvolved in transactions with the Government were also involved in personaldealings with one of its members, who nonetheless participated in and sometimesdominated the official decision-making process... "

(b) G Gorrie (S14) stated that various grievances which he had with hisDepartment had not been dealt with satisfactorily internally or bythe external investigator:

"Official decisions should be supported by reasons rather than invoked byauthority alone. This is vital for grievance appeals. Authoritarian managementis perfect for corrupt conduct because it discourages scrutiny and magnifies power.

(c)

For the merit principle to work, the results should be obvious. Secrecy destroysfaith and fine sounding ideals can be invoked to serve cronyism.

Any applicant for a job should ideally be able to know why they were not chosen."

"Nearly all Departments confused this with Freedom of Information (whichprovides documents) and Judicial Review (which provides reasons for decisions).Neither of these will supply an ethical justification for a decision. In any case, thevast majority were in favour of such a system, but qualified their support byconsideration of expenses of time and money in providing such a service." (JointSubmission (S15)).

(d) "It is always necessary to justify any decision which has competing or conflictingvalues. Firstly to make sure that all angles have been adequately canvassed bythe person making the decision, secondly for future reference in order to develop amodel decision and future advice is consistent or the reason for change can betraced." (Cr H Schwabe (S18)).

(e) "Public officials will be required to provide reasons for decisions under proposedadministrative judicial review legislation. The requirement for officials todocument their reasons for decisions should be prescribed through administrativelaw rather than a code of conduct." (PSMC (S24)).

(f) "It is obviously preferable that public officials implement established policydecisions on the basis of ethical judgement rather than application of detailedrules, and be able to justify their decisions in the same way to those affected bythem.

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Decision justification is the basis for the introduction at Commonwealth level ofthe Administrative Decisions Judicial Review Act and the proposed QueenslandJudicial Review Act. The Commonwealth legislation has proved to be valuable forthose seeking the reasons and logical processes that form a basis for decisionsmade by Commonwealth public officials. Undoubtedly the proposed Queenslandlegislation will have a similar effect." (CJC (S29)).

(g) Professor Sampford (T122) advocated during the Public Seminar amodel of "critical morality" in which ethical behaviour:

involves discussing problems, coming to your own conclusions , publiclystating them, publicly defending them, and publicly living by them and if you'vegot to state them in advance , of course, this provides some kind of limitation onthe manipulations that you can do."

(h) Professor Clark (T87) argued at the Seminar that:

" ... rule based ethical norms may be insufficient as guides for appropriatebehaviour when legitimate moral claims collide ... If the modern bureaucracy hasresponsibility to make hard decisions between competing and legitimate moralinterests, how are such decisions to be made? And how are such decisions to bejustified?

One immediate response that might satisfy both questions would be to invokebureaucrats' professional expertise - that is, by virtue of their professional trainingand experience they are especially qualified to make such judgements. It could beargued that bureaucrats' professional expertise provides an independent referencepoint for expertly judging the relative virtue of competing claims and it's thatexpertise which legitimizes their decisions."

He (T88) concluded that, in the regulation of official behaviour, thetest is whether the official's conduct has contravened accepted roles:

"The problem of making hard decisions requires a more complicated structure.Here, I think public officials actions must be open to both ethical scrutiny andintellectual scrutiny. That is, their actions must be open to evaluation in relationto the interests served by their decisions and their actions must be justified in thepublic domain with respect to how they advance and why they advance thecollective good. "

ANALYSIS OF EVIDENCE AND ARGUMENTS

3.92 In general, as noted above submissions and evidence argued against areliance on detailed rules and regulations, pointing out that such areliance may lead to harsh, inflexible decisions. The proper exercise ofjudgement is unequivocally seen as more likely to lead to better decisionsthan the rigid application of rules and regulations.

3.93 Professor Clark (T87) argued that " ... bureaucrats' professional expertise [could]provide an independent reference point ... " for assessing the claims of competingvalues. There was general recognition that professional expertise isgrounded in a given society's value-system, and develops from education,training and a critical approach to experience.

3.94 Many submissions explicitly favoured education and/or training to helpprovide officials with the skills required to exercise considered judgementin questions of ethics by analysing the ethical bases to decisions.

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3.95 Ultimately, if public officials are to exercise judgement, and be trained todo so, it would be consistent to expect that they be required to justify onethical grounds the choices they make between competing values. In theopinion of the Commission, the requirement that officials be accountablefor their exercise of "professional judgement", renders legitimate thediscretionary role of officials in public administration.

3.96 By contrast any approach to administrative ethics based, not on theaccountable exercise of discretion but on the simple observance of rulesand precedents, will fail to develop much-needed skills and judgementamong officials and, indeed, will prevent officials from becoming personallyinvolved in administration ethics matters at all.

3.97 The Commission makes no specific recommendations on the issues ofethical judgement and decision-making and reasons for decisions. TheCommission believes that its general proposals in relation to the Code ofConduct in this Report, and its recommendations in respect to JudicialReview of Administrative Decisions and Actions and Freedom ofInformation (once implemented), deal with the issues adequately.

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CHAPTER FOUR

REVIEW OF THE EXISTING CODE: OVERVIEW ANDGUIDING PRINCIPLES; PERFORMANCE OF DUTIES

Introduction

4.1 Chapter Three of this Report came to the conclusion that general Codes ofConduct for public officials, elected and appointed, are both necessary anduseful.

4.2 This Chapter and the succeeding two chapters examine the provisions ofthe Code of Conduct for Officers of the Queensland Public Service (1988)("the Queensland Code") with a view to making recommendations for theprovisions of a new general Code of Conduct for appointed officials. A Codeof Conduct for elected representatives is dealt with in Chapter Seven ofthis Report.

4.3 This chapter focuses on the general guiding principles in the QueenslandCode (ie. s.1) and the provisions relating to the performance of duties (ie.ss.2.1-2.6). The relevant sections of the Queensland Code are reproducedin the text to aid the discussion.

4.4 The Queensland Code was issued by the Queensland Government in 1988and was modelled on the Commonwealth Guidelines on Official Conduct ofCommonwealth Public Servants (1987). However, it omits severalsignificant issues covered by the Commonwealth Guidelines and virtuallyall of those Guidelines' explanatory material.

4.5 The Issues Paper identified a number of additional matters not dealt withby the Queensland Code. For example, the Queensland Code does notspecifically address matters such as: employment on retirement orresignation; `outside' employment; industrial/union participation;responsibilities to Ministers; merit-based advancement; and relationshipswith representatives of the media. These matters are dealt with inChapter Six of this Report.

4.6 The discussion in Chapters Four, Five and Six of this Report refersexclusively to appointed officials unless otherwise indicated.

The Queensland Code of Conduct, 1988

4.7 The Queensland Code applies to all public officials employed under thePSME Act. The Queensland Code may also have been adopted, either inwhole or in part, by other Queensland government agencies andauthorities. It does not apply to elected representatives in either theLegislative Assembly or at local government level, nor does it apply toofficials employed by Local Authorities.

4.8 In reviewing each provision of the Queensland Code the Issues Paperobserved that it may not be widely used in Queensland's publicadministration . The Ethics Survey found:

(a) that 40% of respondents were unaware of the Queensland Code;

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(b) 73% believed that their colleagues "rarely or never" used theQueensland Code; and

(c) 85% indicated that they would be guided more by their ownjudgement than by a written code of conduct.

4.9 The Survey found that most respondents would rather trust theirjudgement in the final analysis. While they were prepared to read a code,they considered they "know what's right".

4.10 It was recognised in Chapter One of this Report that discussion of theprovisions of any Code of Conduct for public officials cannot proceedusefully in a vacuum. In the Queensland context the content of the codewill need to reflect provisions in the Criminal Code and the PSME Act, forexample, to provide a sound basis for disciplinary action.

4.11 The management philosophy of public sector organisations and theirpractices and values, and any particular features of an agency's functionswhich are seen as justifying specific obligations as to conduct by theagency's staff, will also need to be accommodated or supported. It is inthis context that the Commission proposed the development ofagency-specific adjuncts to the code (level 3 codes, see Table 2.1). Publicsector unions and staff will, quite properly, seek clear statements of whatconduct is acceptable, and what constitutes a disciplinary offence.

4.12 Accordingly, the following discussion of the specific elements of theQueensland Code for public officials (excluding elected officials, whoseneed for a specific Code is considered in Chapter Seven) assumes that anyreplacement Code will need to be seen by practising managers, staff andthe community at large as providing a simply stated, relevant frameworkof general principles and helpful advice on the particular problems theyactually face from day to day. The Code needs to be, and must be seen tobe, a useful source of practical advice and relevant requirements.

4.13 For a Code of Conduct to be more than just a set of official rules, themanagement literature suggests that a number of conditions arenecessary. For example, the code must be, and be seen to be, "lived" by theorganisation at all levels. In other words, it must be seen to be relevant toand adhered to by CEOs as well as the most junior staff in theorganisation.

4.14 In general, as noted earlier, the literature also suggests that Codes ofConduct will be more likely to succeed in meeting their objectives if theyare in large measure developed by agency staff themselves to meet thespecific workplace or organisational needs of their individual agencies.This approach has been endorsed by ICAC in advocating the developmentof multiple Codes of Conduct for NSW public sector agencies.

Awareness of Codes Within Organisations

Issue 5.11 To what extent should officers be responsible for ensuring that they areaware of any formal code of conduct?

Issue 5.12 To what extent should Chief Executives be responsible for ensuringthat officers are aware of their responsibilities in relation to standards of properconduct?

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4.15 The Issues Paper noted that the Queensland Code was introduced with noaccompanying formal program of staff training or familiarisation, and thatsome CEOs may not be complying with their responsibilities under thisRegulation. So far as the Commission is aware Public Sector Unions werenot consulted during its development.

4.16 It was also observed that the results of the Ethics Survey indicate that theQueensland Code is not widely consulted by public officials. This isdespite Regulation 6(2) of the Public Sector Management and EmploymentRegulations 1988 which requires CEOs to draw the attention of newofficers to the Queensland Code and ensure that every officer has access toa copy of it. Furthermore officers are required by the Queensland Code to"... familiarise themselves ... " with its contents and "Failure to comply with theprovisions of this Code are grounds for disciplinary action under section 29 of the Act."(s.1).

EVIDENCE AND ARGUMENTS

4.17 The Commission received the following comments in connection with thismatter:

(a) "Individual officers must be responsible for maintaining awareness of the code."

and

"The majority [of departments] thought that the Chief Executive should beresponsible only for supplying the codes, initial training and possibly on-goingtraining, e.g. for officers entering positions of greater decision makingresponsibility. In large regionalised departments the Chief Executive should beable to delegate these responsibilities... " (Joint Submission (S15)).

(b) "Education about the Code of Conduct should be the responsibility of individualChief Executives. However, to encourage awareness of the code, the trainingrequirement should be incorporated into some existing mechanism. ThePerformance Planning and Review process established by a Public SectorManagement Standard is one appropriate mechanism." (PSMC (S24)).

(c) "Officials should be placed under a general obligation to be aware of existingcodes, just as much as they are under general obligations to be aware of othermatters concerning work practices and routines.

This said, however, does not remove the obligations of management with regard tocode development and promulgation. If officers of a department or agency are notaware of the relevant codes it should be seen as a management weakness in theparticular organisation." (CJC (S29)).

(d) Several speakers at the Public Seminar stressed the positiveresponsibilities of CEOs and organisational structures and practicesto propound, promote and model the values and behaviours endorsedby their Codes of Conduct, as the only effective way of encouragingdesired behaviours and attitudes in their staff. According to DrDalglish (T161-2), P Forster (T156), Professor Callan (T165-6) and JWalker (T127-8) among others, for a Code of Conduct to be effective,it needs to be put into practice at the highest levels in anorganisation.

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(e) In this connection the Commission received a submission allegingfailure to abide by the requirements of the Interim Guidelines forExecutive Selection Process (PSMC, September 1990) whenapplicants for a number of senior positions in one department werebeing considered. The Commission investigated the allegations and,after perusing the relevant documents, found no evidence ofdeficiency in the existing systems, principles or practices applicable.

ANALYSIS OF EVIDENCE AND ARGUMENTS

Chief Executives

4.18 As noted above a requirement of the Public Sector Management andEmployment Regulations 1988 is that CEOs draw new officers' attention tothe Queensland Code. The Commission is of the view that this is still animportant role for CEOs.

4.19 In some submissions, CEOs were seen as having a role restricted to merelyensuring that a copy of the code was available to staff, and that staff had abasic understanding of its requirements. The Commission considers thisto be an inadequate recognition of the obligations of that role.

4.20 It must be recognised by management at the highest levels that a Code ofConduct can no longer be regarded as an "optional extra" to goodmanagement. The organisational, cultural and professional valuesespoused by a code, or implicit in its provisions, will need to be the sameas, or consistent with, the values actually practised by an organisation ifthe code, and the organisation, are to have credibility among its staff andits clients. "Practice what you preach" and "do as you would be done by"apply to organisational behaviour just as much as to personal behaviour.

4.21 The Commission considers it essential for CEOs and all seniormanagement to abide by the rules and conduct themselves accordingly ifthey are to expect more junior officers to abide by the same rules. Undersuch an approach to the implementation of a Code of Conduct, CEOs havea responsibility which extends beyond that of merely ensuring that newstarters are given a copy of the organisation's code and asked to read it,and that the library keeps the usual six copies. They themselves mustespouse and promote the principles contained in the code, and ensure thattheir staff and organisations do likewise.

4.22 An active responsibility for training and development of all staff inunderstanding the code's implications, monitoring organisational andindividual practices (eg. grievance-handling, recruitment, reward andadvancement, and disciplinary action) is necessary. Also necessary is thedevelopment of linkages between the principles espoused by the code and,for example, corporate planning, annual reporting, public informationactivity, performance planning and assessment, staff selection, anddisciplinary and appeals processes.

4.23 For these things to happen, a CEO needs to be regarded as formally, if notpersonally, responsible for the effective implementation of the code in theorganisation. However, in large or diverse departments and authorities, aCEO might find it necessary to delegate significant responsibilities to adesignated senior officer as recommended by the Joint Submission (S15).

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4.24 The Commission has concluded that to date the Queensland Code has notbeen effectively brought to the attention of all public officials who arerequired to abide by its provisions. The evidence suggests that not allCEOs have promoted or applied the Queensland Code to the required orappropriate extent.

Individual Officers

4.25 Codes of Conduct in the public sector are typically directed at individualofficials - usually in the form of a set of prohibitions, warnings or wisecounsel. Formal disciplinary action or other disincentives are usuallyprovided for breaches of the codes' provisions, even if they are not ofteninvoked. The Queensland Code is typical in this respect.

4.26 The justification for this approach, at minimum, is that individual officialsneed to be made aware of what they are expected not to do, and why. Inthis regard they might reasonably be expected to consult the code, perhapsrelatively frequently, for information and guidance, rather than relyingsolely on their own or their colleagues' perceptions of what is required.

4.27 There is a commonsense requirement that codes, and the case law whichdevelops around them, need to be the subject of training and advice to staffon a regular basis as part of normal staff-development activities. It isunrealistic to expect individuals to develop expertise in the interpretationof code provisions for themselves, even if they are in a position to do so. Itnecessarily remains a task for management.

4.28 As noted above, the results of the Ethics Survey suggest that theQueensland Code has not been actively promoted. Its existence was notwidely known, and those respondents who were aware of it reported littleuse. Anecdotal evidence suggests that the picture is little different inother States. There is, no doubt, a mixture of reasons for this state ofaffairs but one of the significant criticisms of most Codes of Conduct isthat their advice is often not found to be helpful.

4.29 A number of speakers at the Public Seminar (eg. F Haly (T76), B Nutter(T175), Professor Sampford (T121-2), and Commissioner J Kelly (T100))recognised that a good code will be harnessed for the purposes of theorganisation in areas other than ethical conduct. Corporate planning,client-service goals, public information policy, human resourcemanagement practices, industrial relations policy and recruitment shouldnot only be consistent with a code and its expressed values but shouldinteract with those values in the overall interests of managementimprovement. Management (and staff and unions as well) can and shouldseek to develop such cross-linkages, to put flesh on the bones of a generalcode and make it central to understanding what the organisation's"culture" requires.

4.30 To the extent that any written Code of Conduct is thought to bemeaningful, accessible and relevant, individuals will not have to beencouraged to use it. To the extent that an organisation's code is thesubject of effective training and development activity, and its principlesare actually practised by the organisation at all levels, individual officialswill not need to refer to the formal code for guidance.

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4.31 Because no code and no training programs can expect to deal exhaustivelywith every possible ethical dilemma, a positive duty needs to be placed onstaff to seek advice from senior officers on problems within theorganisation whenever the code's provisions are found to be inadequate.

RECOMMENDATION

4.32 The Commission recommends that :

(a) Chief Executives should be responsible for the effectivepromulgation of the code and its principles within theirorganisations;

(b) this responsibility should include ensuring that the code isreasonably available to all staff;

(c) it should be a requirement of all public officials that they be familiarwith the provisions of the relevant Code of Conduct; and

(d) it should be a requirement of staff to seek the advice of managementon the application of the code.

4.33 This recommendation is implemented by section 2.2 (Purposes) in theCommission's draft Code of Conduct for Appointed Public Officials(Appendix F). Part 5 of the draft Bill (Appendix E) also defines certainresponsibilities of Chief Executives in respect of distributing copies of therelevant code.

Guiding Principles

Issue 5.18 Are the Code's "Guiding Principles " adequate and appropriate? Wouldother principles be more appropriate? If so, what are they?

Issue 5.19 How for should a Code of Conduct (as opposed to a "Code of Ethics") berestricted to general principles of proper conduct for public sector employment?

Issue 5.20 Should a Code of Conduct be intended principally to assist managersand staff to identify prohibited actions or behaviours, or, alternatively, to assist inencouraging staffat all levels to achieve appropriate standards of conduct?

4.34 The "Overview and Guiding Principles" of the Queensland Code are:

"This Code of Conduct outlines general standards of work performance andethical conduct expected of all officers based on the following guiding principles -

Officers should perform their duties with professionalism and integrity, andeffectively and efficiently serve the Government and the public;

Fairness and equity should be observed by officers in all official dealings,including dealings with the public and other departmental employees; and

Real or apparent conflicts of interest should be avoided. However, officersshould not be subject to unnecessary restrictions on their private activitiespurely as a result of their employment with the Crown, where such activitiesdo not involve a conflict of interest or adversely affect their workperformance.

This Code of Conduct does not replace any other code of conduct lawfullyapproved for application to individual classes of officer within the Service andshould be read in conjunction with any such code.

Officers should -

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familiarise themselves with this Code; and

ensure that its provisions are observed.

Failure to comply with the provisions of this Code may be grounds for disciplinaryaction under Section 29 of the Act." (Queensland Code, p.1).

4.35 No explanation is given to connect the "Guiding Principles" with the moredetailed requirements in the Queensland Code itself. Specialised andcomplex terms such as "conflict of interests", "fairness and equity" and"efficiency" are not defined.

4.36 In addition the Queensland Code contains no guidance for staff on how toobtain further information on the proper application of its principles in theworkplace, nor does it refer to the procedures to be followed by supervisorsif they are to translate the code's principles into effective disciplinaryaction in specific cases. There is no explanation of how the code relates toor interacts with any other professional ethics, personal ethics, oradministrative orders or legislation.

4.37 The Queensland Code provides no guidance on the extent to which CEOsare permitted or encouraged to develop additional rules or determinationsin relation to their staff, or how such additional requirements are to berelated to the Queensland Code itself and relevant legislation.

4.38 The Issues Paper (para.5.15) drew attention to the potential for ambiguityabout what constitutes a disciplinary offence under the Queensland Code,and the definition of "official misconduct" in the Criminal Justice Act1989-1991 (CJ Act).

EVIDENCE AND ARGUMENTS

4.39 (a) Bundaberg City Council (S11) thought that the code's "GuidingPrinciples" were adequate and appropriate. Further, the Councilstated:

"Chief Executives and Officers should be made aware of the codes `GuidingPrinciples ' at their initial induction into the public service and again examinedfrom time to time and particularly commencing any new position. "

(b) The Joint Submission (S15) argued:

"There was significant agreement that the existing guiding principles areadequate, though some expressions are banal to the point of being meaningless.

Those that disagreed saw the principles as inadequate because there is no cleardefinition of specialised and complex terms. They saw a need for furtherelaboration. The general principles could be expanded by adopting parts of codesfrom other jurisdictions.

One Department expressed the view that if the ethical principles were set outproperly then there would be no need for guiding principles. "

and

"Responses ... varied but there was no preferred option. The suggestions werealong the following lines:

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the Code of Conduct should extend to the use of data and informationacquired while a public servant; accountability for decisions and actionstaken as a public servant; and propriety of conduct during the discharge ofduties as a public servant;

the Code of Ethics should act as the introduction to the Code of Conduct,which would contain prescribed standards and values in a detailed andspecific form;

the Code of Conduct should be replaced with a Code of Ethics;

the work performance issues covered by a Code of Conduct should beseparated from, but linked to, ethical conduct."

and also

"Nearly all agreed that there should be a positive approach through education;that [a Code] should encourage rather than prohibit."

(c) P Roberts' paper on fraud control given at the Public Seminarunderlined the need to determine the principal intention of a Code ofConduct:

" ... the most effective way of controlling fraud is to create an environment ofvoluntary compliance whereby administrative and financial procedures are suchthat persons both inside and outside the public sector are aware - are continuallyreminded that there is a vigilant control of resources. Taking this approach, thepunitive elements which are very, very necessary in the law enforcement approachbecome a fail-safe mechanism, which is essential but not dominant." (T50).

(d) Also speaking at the Seminar, J Walker (T127) stated:

(e)

' ... codes of conduct as they relate to public sector workers will always work bestin a positive environment, not only where the letter of the code provides a usefulguide to appropriate standards of behaviour, but where the spirit of the codediscernibly informs the decisions and conduct of both employer and employee, andpermeates the corporate culture.

It is both hypocritical and fanciful for an employer - any employer - to vigorouslyrely on a code of conduct, on a document which seeks to codify the requiredattitudes of behaviours of its employees, while it conducts itself in ways whichdemonstrate that it does not consider itself required to adhere to similarstandards ... "

"It [a code] should principally assist in encouraging staff at all levels to achieveappropriate standards of conduct." (Cr H Schwabe (S18)).

(f) A Forward (T143) noted at the Public Seminar:

(g)

"If a form of conduct or behaviour is not explicitly prohibited, then it is difficult topersuade an independent appeal body or other tribunal to impose sanctions forwhat most people would see as a breach of ethics."

'A Code of Conduct should be intended to delineate appropriate standards ofconduct. Prohibited conduct is and should remain covered under criminal andofficial misconduct provisions while disciplinary provisions effectively setminimum standards of conduct. These distinctions should remain." (CJC(S29)).

(h) A Sandell (S6) commented that if the seven scenarios cited in IssuesPaper No. 15 "... are to be covered by a Code of Conduct then the Code wouldbecome of impossible length and comprehension." If the code was to belengthy then it "... would ensure it would be largely ignored."

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ANALYSIS OF EVIDENCE AND ARGUMENTS

4.40 "Guiding Principles" for Codes of Conduct in the public sector arefrequently sources of confusion, either through being too generalised toprovide a meaningful guide to action (for example, referral to undefined"professional standards"), or through attempting to treat essentiallyunrelated duties under a single ethical principle (eg. the duty to advancethe public interest, and the duty of confidentiality owed to one's employer).

4.41 Most submissions which dealt with these issues recognised these problemsin Queensland, and most recent commentators and authors in themanagement literature (eg. Kernaghan and Langford, 1990) demonstratethe same problem in other jurisdictions.

4.42 As discussed previously, the "Guiding Principles" of a code must reflect itsintended usage. A code stated in terms of a meaningful set of guidingethical principles can be developed to support a "positive" code.

4.43 The CJC accepted, and supported as valuable, the distinction between(acceptable) official conduct, prohibited conduct, criminal conduct andofficial misconduct.

4.44 As a matter of principle, the reasons why particular acts or conduct are sounacceptable as to warrant formal prohibition or legal sanctions should beexplained by the code, and such prohibitions should be justified in terms ofthose principles.

4.45 However, the generalized "Guiding Principles" typically stated in a code ofprofessional ethics are unlikely to be sufficient alone. They need to beexplicated in examples of concrete conduct to enable officials to makejudgements about competing values in real-life situations, and to enableothers to evaluate such judgements.

4.46 On balance, the Commission believes that the most acceptable approachfor a modern Code of Conduct is to state positive, normative GuidingPrinciples and the rationale for their application as the highest standardof conduct to which officials should aspire.

RECOMMENDATION

4.47 The Commission recommends that the Code of Conduct should providegeneralized normative principles and guidance as to reasons for requiredconduct in a range of circumstances.

Performance of Duties

Issue 5.29 Should the Queensland Code state the duties of officials in specificterms rather than general principles?

Issue 5.30 Should such duties be prescribed in legislation, or stated in less formalways, for example in "duty statements" developed by individual agencies, by somecombination of these approaches, or by some other approach?

Issue 5.31 Are the specific duties set out in Regulation 8A of the CommonwealthPublic Service Regulations appropriate as a basis for a statement of duties forQueensland public officials? If not, what other specific duties should be preferred?

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4.48 Section 2.1 of the Queensland Code deals with Service to the Governmentand the Public. The Code requires that:

"Officers should -

devote themselves to the efficient and effective achievement of theGovernment's declared objectives;

adhere to the highest standards of professional competence, integrity andhonesty;

provide conscientious service to the elected Government irrespective of thepolitical allegiance of the officer;

provide conscientious, effective, efficient and courteous service to all thosewith whom they have official dealings; and

be guided by principles of fairness and equity especially in circumstanceswhere officers exercise a particular responsibility for the care or supervisionof clients and other persons." (Queensland Code, s.2.1).

4.49 Particular problems arise when officers are required to apply undefinedterms such as "efficient" and "effective" to their daily work. Phrases suchas "the highest standards of professional competence" and "the principlesof fairness and equity" are similarly problematical.

4.50 The Issues Paper compared these statements with those of greaterprecision from Regulation 8A of the Public Service Regulations of theCommonwealth Public Service (see below in para.4.54). TheCommonwealth Regulations state similar principles as duties. Section 7 ofthe Government Management and Employment Act 1985 of SouthAustralia also provides a positive statement of duties (see below inpara.4.55).

EVIDENCE AND ARGUMENTS

4.51 (a) "The present Code of Conduct is recognisable to a significant extent as a series ofinterpolations from the Act and Regulations of 1922.

It appears now that we are confronted with the prospect of some embellishmentsbeing added to the Code of Conduct which will serve no purpose other than tocomplicate the processes of public administration ... which is well and trulyregulated by virtue of a variety of statutes and subordinate legislation which arenominated hereunder:-

Public Service Management and Employment Act and Regulations;

Code of Conduct approved by the Governor in Council pursuant to that statuteand subordinate legislation;

Public Sector Management Commission Act;

Financial Administration and Audit Act and Treasurer's Instructions;

The Criminal Code;

The Criminal Justice Act. " (Queensland State Service Union (S9)).

(b) "The majority of Departments considered that the Queensland Code should statethe duties of officials in general principles rather than in specific terms." (JointSubmission (S15)).

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"... the Queensland Code state the duties of officials in general principles." (AMA(S26)).

(d) Speaking at the Public Seminar , A Forward (T146) warned:

"We must ensure that a code of conduct is drafted with some awareness of how itmight be used by those who are seeking loopholes in such document. A code ofconduct should be able to be applied equitably and unambiguously. Otherwise itbecomes another weapon in the hand of the `frivolous and vexatious' complainant. "

(e) 'Although some Departments preferred that the duties of officials be prescribed inlegislation , presumably as general principles only, most believed that it is moreappropriate to set such duties out in duty statements developed by individualagencies ." (Joint Submission (S 15)).

(f} The ICAC (S13) argued more generally that codes must beorganisation-specific so as to be relevant to public officials.

(g) "Duty statements seem to be the more practical and realistic answer." (Cr HSchwabe (S18)).

(h) "The doctor is ... guided by a Code of Ethics in all matters of performance ofclinical duties. The duty statement should be specific in defining responsibilitiesof an administrative nature but should not be restrictive at a personal level."(AMA (S26)).

(i) D Jordan (Si), citing a personal experience, considered that hisformer tenants had not conducted themselves in a manner worthy ofpublic service employment. This indicated to him that a minimumstandard of conduct, to the effect that a public servant ought not actin a manner which would damage the reputation of the publicservice, should at least be clearly stated (eg. Australian PublicService reg. 8A(i)) and stated in a positive form (eg. s.7(c)-(d)Government Management and Employment Act 1985 (SA)) in orderthat such a standard could be enforced.

(J) The Joint Submission (S15) stated that the specific duties set out inRegulation 8A of the Commonwealth Public Service Regulations (seebelow) would be a useful basis for a Queensland equivalent:

"However, if a statement of specific duties for Queensland public officials were tobe developed, it was considered that Regulation 8A of the Commonwealth PublicService Regulations would provide a useful basis for that statement... "

(k) The PSMC (S24) also considered that Regulation 8A would providean appropriate model:

"The Code of Conduct should refer to specific duties similar to those set out inRegulation 8A of the Commonwealth Public Service Regulations. Obviouslythough, caution is required to prevent any conflict with civil liberties or equityprinciples. Typically these become issues when referring to standards of dress orspecific conduct of employees which may have an impact upon cultural practices. "

4.52 No suggestions as to additional preferable specific duties were made inresponse to Issue 5.31.

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ANALYSIS OF EVIDENCE AND ARGUMENTS

4.53 The Issues Paper observed that what this section of the code appears torequire of public sector employees is diligent, non-partisan, competent, fairand equitable service to clients and the government.

4.54 Whether such performance can be ensured in practice by such a statementof principles alone is questionable. By contrast, and as noted above, theAustralian Public Service, under Regulation 8A of the Public ServiceRegulations, requires its employees to provide comparable levels of service,diligence, etc., but states an officer's duties concretely rather than asprinciples:

"Duties of officers

8A. An officer shall:

(a) perform with skill, care, diligence and impartiality the duties of hisor her office, or any other office whose duties he or she is directed toperform, to the best of his or her ability;

(b) comply with any enactments, regulations, determinations, awards ordepartmental instructions applicable to the performance of his or herduties;

(c) comply with any lawful and reasonable direction given by a personhaving authority to give the direction;

(d) have regard to any official guidelines or recommendations applicableto the performance of his or her duties;

(e) in the course of his or her duties treat members of the public andother officers with courtesy and sensitivity to their rights , duties andaspirations;

(f) provide reasonable assistance to members of the public in theirdealings with the Service and help them understand theirentitlements and any requirements with which they are obliged tocomply;

(g) avoid waste, or extravagance in the use, of public resources;

(h) not take, or seek to take, improper advantage, in the interests,pecuniary or otherwise, of the officer, any other person or any group,of any official information acquired, or any document to which he orshe has access, as a consequence of his or her employment; and

(i) at all times behave in a manner that maintains or enhances thereputation of the Service."

4.55 Section 7 of the Government Management and Employment Act 1985 ofSouth Australia provides a similarly positive statement of the duties ofofficers, but restricts the duties to generalized form:

"7. The following principles of conduct shall be observed by all employees:

(a) employees shall comply with the provisions of this and any other Actgoverning their conduct;

(b) employees shall be conscientious in the performance of official dutiesand scrupulous in the use of official information, equipment andfacilities;

(c) employees shall, in their dealings with members of the public orfellow employees, exercise proper courtesy, consideration andsensitivity;

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(d) employees shall not conduct themselves in their private capacities ina manner that would reflect seriously and adversely on theiremployers or fellow employees. "

4.56 The PSME Act currently requires an individual "duty statement" forspecific positions to be developed. There is no inconsistency between thisand a Code of Conduct.

4.57 An individual official's "duties" may be prescribed at several levels: thegeneral duties of an employee owed to an employer, the characteristicethical duty of a public official, and the specific duties of the functionperformed, or the position occupied, by a specific individual.

4.58 Depending on the context, all three uses may be appropriate. For a Codeof Conduct, it is the statement of the ethical duty of a public official that isprimarily of concern. At this level the Commission prefers the use of theterm "obligations" to avoid confusion with more generally task-orientedduties.

4.59 The Commission is of the view that, consistent with the argumentsadvanced in relation to the earlier issues in this section, it is appropriateto declare the ethical obligations of all officials in positive and normativeterms rather than in negative and proscriptive terms, along the generallines of the Commonwealth and South Australian models.

4.60 The Commission has already recommended at para.3.47 that general"ethical obligations of public sector officials" should be prescribed formally.

Conduct Towards Other Employees

Issue 5.36 To what extent is it acceptable for the employer to attempt to regulatethe behaviour or relationships of of jCcers outside the workplace in this way?

Issue 5.37 Where, for example, after-hours harassment of an officer by another isa factor in that officer's work performance, is the Code's approach likely to beeffective in controlling such unacceptable behaviour ? Is any other approach to beprefe' rred, and if so, what and why?

4.61 Section 2.2 of the Queensland Code provides:

"Officers should -

treat other departmental employees with respect and dignity;

not mistreat other employees, or distract them from carrying out theirduties. Examples of unacceptable conduct are -

inducements to infringe this Code; andall forms of intimidation and harassment, including sexual andracial harassment;

ensure the confidentiality of matters of a personal nature relating todepartmental employees; and

not allow personal relationships, both inside and outside the workenvironment, to adversely affect their work performance or that of otherdepartmental employees. "

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4.62 The major issue here concerns the employer's power and also their right toregulate officers' relationships or behaviour toward one another outside ofthe workplace and working hours. The employer's interest in such conductarises from its effects upon officers' performance of their official duties.The Issues Paper noted (para.5.34) that officers have a responsibility toensure that their behaviour does not adversely affect the workperformance of others.

4.63 The Queensland Code may currently be used as the basis for disciplinaryaction against an officer whose conduct towards another officer outsideworking hours has "adverse effects" on the other officer's performance.

EVIDENCE AND ARGUMENTS

4.64 (a) D Jordan (Sl) indicated that personal behaviour of officials outsidework should be regulated where that behaviour involved conductagainst prevailing community standards and reflects poorly on thepublic service.

(b) The Joint Submission (S15) observed:

"Many Departments considered it unacceptable for the employer to endeavour toregulate behaviour or relationships outside the workplace, except where workperformance is impaired as a consequence of outside activities.

One Department suggested that the relevant part of Section 2.2 of the QueenslandCode should be replaced by a provision that officers should attempt to maximisethe separation between their private and work lives and not let their private livesimpinge upon their work conduct.

Only one Department argued that the extent of an employer's rights in regard toan employee's activities is better explained in the New Zealand Public ServiceCode of Conduct with respect to `the private activities of an employee' as stated inparagraph 5.49 of the E.A.R. C. Issues Paper No. 15.

It was also noted that the common law contract of employment between anemployer and an employee would not enable an employer to regulate thebehavioural relationships of his or her employees outside the workplace. Theemployer could not take any action to the prejudice of the employee on the basis ofconduct outside the workplace unless that behaviour touches the course of duties ofthe employee or the discharge of those duties (e.g. a conviction for drunken drivingout of the hours of employment may be relevant to the employment of a chauffeurbut not necessarily to the employment of a clerk).

Departments were generally of the opinion that unacceptable behaviour afterhours, such as harassment of an officer by another, is unlikely to be effectivelycontrolled through the Code. It was suggested that a Code of Conduct should notendeavour to provide for these circumstances, as the victim of harassment hascivil or criminal remedies in such a situation. Such behaviour might also beaddressed by professional counselling."

(c) The CJC (S29) believed that the extent to which s.2.2 of theQueensland Code currently regulates non-work behaviour isacceptable:

"Section 2.2 of the Queensland Code would seem to be an appropriate way toenunciate the principles that should regulate relationships of officers."

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ANALYSIS OF EVIDENCE AND ARGUMENTS

4.65 The present s.2.2 underlines the responsibility of staff to ensure that theirpersonal behaviour, whether in the workplace or elsewhere, does notadversely affect the work performance of others. This approach recognisestwo important factors:

(a) officers may be held responsible for the consequences of their actionsor behaviour on the work performance of others; and

(b) an officer's responsibility extends to their actions or behaviourwhich occur outside the workplace, and which arise fromrelationships within the workplace.

4.66 However, the regulation of the conduct of officials outside the workplace isa difficult and sensitive matter. There are arguments that such conduct isnot the concern of the public service as employer, and that any attempt bythe employer to control behaviour would involve an unacceptableimposition on the civil rights of the individual.

4.67 On the other hand, it can be argued that an employee's conduct may belegitimately regulated by the employer where the conduct hasconsequences in the workplace, either for the employee, other employees,or for the employer.

4.68 The Commission is aware that any attempts to extend the reach of a codeinto the private lives of officials requires very careful consideration, notonly in recognising the limitations on such guidance or prescription, butalso in recognising that, in certain circumstances, such a reach may bejustified (eg. where public trust is likely to be compromised).

4.69 While most submissions which dealt with this issue accepted thisargument, they also recognised the likelihood that, justified or not, mostattempts to control private action would be ineffective if relying solely on aCode of Conduct, and that, for example, victims of harassment potentiallyhad avenues for redress other than via the public service disciplinaryprocess (eg. private legal action).

RECOMMENDATION

4.70 The Commission recommends the adoption , as a specific provision in aCode of Conduct of a requirement of officials to ensure that their privateactivities avoid any conduct , action or form of harassment which distractsother officials from the performance of their proper functions or which islikely to bring the service or agency into disrepute or compromise publictrust in the integrity of government.

4.71 This recommendation is implemented in the Commission's draft Code ofConduct for Appointed Public Officials in sub-section 8.1.8. (PersonalConduct In and Outside the Workplace).

Standards of Dress

Issue 5.42 Is a code of conduct, and through it the discipline process, an effectiveand appropriate way of regulating the dress standards of officers?

Issue 5.43 What would be an appropriate process for determining what standardsof dress or personal presentation may be required in particular departments orlocations?

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Issue 5.44 How should dress and appearance issues relating to cultural diversitybe handled?

4.72 Section 2.3 of the Queensland Code deals with the question of dressstandards. The section provides that such standards are to be determinedby the CEO of an organisation. Officers are required to " ... conform to thestandards of dress determined by their Chief Executive". The section makes nomention of the appropriateness or otherwise of uniforms.

4.73 No guidance is given as to what considerations a CEO should (or shouldnot) take into account in determining such standards, or what is theposition if the CEO does not determine a standard. It is also not madeclear whether CEOs do in fact have power to make such a determinationbeyond what is implicitly required by occupational health and safetyconsiderations in particular workplace circumstances.

4.74 The Issues Paper (para.5.39) noted that the Queensland Code providesCEOs with no criteria on which to base their determination of dressstandards. Special problems may arise because of the multiculturalnature of the workforce and the changing nature of society's attitudes todress standards.

EVIDENCE AND ARGUMENTS

4.75 (a) The Joint Submission (S15) commented:

"Departments expressed diverse views regarding the appropriate way of regulatingdress standards of officers. Some Departments supported the inclusion in theCode of Conduct of general principles relating to dress standards, arguing that,given the diversity of requirements, standards of dress can only ever be referred toin very general terms. Detailed standards would then be determined by the ChiefExecutive, bearing in mind the nature of the work being performed, theoccupational environment, and the nature of the agency's clientele.

Other Departments considered the Code to be an inappropriate way of regulatingdress standards, insisting that only an organisation and its management caneffectively regulate in this area.

There was also some support for the existing provision (Section 2.3) of the Code.Only one Department indicated that the statement in the CommonwealthGuidelines 18.32 is appropriate.

With regard to the process for determining standards of dress required inparticular Departments or locations, many Departments considered that either theChief Executive or the section managers are best suited to carry out this task. Ithas also been suggested that advisory committees within agencies mightundertake this task. Another alternative is to establish dress standards through agroup assessment process and incorporate these into duty statements prior topositions being advertised.

A number of Departments which have commented upon dress standards inrelation to cultural diversity pointed out that in a multi-cultural society such asours the cultural diversity of staff must be respected and accepted whenstipulating dress requirements. The issue should be approached with diplomacy,and problems handled on a case-by-case basis."

(b) "Standards of dress should be established through a consensus at Agency level.This consensus should have regard to a guideline similar to that provided byguideline 18.32 of the Commonwealth Guidelines." (CJC (S29)).

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(c) The Water Resources Commission (S3) forwarded a copy of theirCode of Conduct to the Commission. On "Standards of Dress" theirCode states:

"Dress standards are to be determined on the basis of:

maintenance of the Commission's positive public imagemaintenance of excellent client relationsproprietysuitability." (p.12).

(d) " ... a recent incident where a public official was prevented from dressing inaccordance with his religious beliefs, in this case in accordance with his Muslimreligion. This is ridiculous in a country that boasts religious freedom andmulticulturalism." (Queensland Watchdog Committee (S19)).

ANALYSIS OF EVIDENCE AND ARGUMENTS

4.76 The frequency with which standards of dress or presentation become amatter of dispute between managers and staff suggests that someminimum standard might be usefully suggested by a code, partly to putthe matter in a proper perspective, partly to avoid requiring a largenumber of agencies which have no need of a specific dress standard todevelop one, and partly to prevent arbitrary and unreasonable treatmentof staff by managers who might otherwise misuse or misunderstand theextent of their powers in such matters.

4.77 The bulk of submissions recognise the difficulty, if not impossibility, ofprescribing dress standards beyond a minimal acceptable level. TheCommonwealth Guidelines' pragmatic approach - of prescribingappropriateness to the officer's work - was explicitly supported by somesubmissions. There was support from the Queensland WatchdogCommittee in respect of recognising multicultural and religious diversity.Most submissions were in favour for developing rational ways ofdeveloping dress standards.

4.78 There was no suggestion in the evidence before the Commission thatgeneral guidance on dress and personal presentation standards do notbelong in a Code of Conduct, and no suggestion that the disciplinaryprocess was inappropriate for enforcing such a standard. However, theCommission is aware of the factors which make it difficult to prescribeminimum dress standards which can apply to all work groups and theirworking conditions.

4.79 Consequently the Commission believes that such standards should be setby individual CEOs in accordance with health and safety conditionsattached to particular positions. At the same time it recognises theimportance of other factors such as cultural diversity, climate and theoverall dignity of the public service. An appropriately consultativeapproach, involving staff and relevant staff organisations, should beadopted in determining such standards, which should be formallyexpressed in an organisation's level 3 adjunct to the code.

4.80 The Commission makes no specific comments about uniforms. Itrecognises that there are circumstances in some agencies which justify theprescription that a uniform must be worn. The authority to prescribe thatuniforms should be worn should appropriately be left to CEOs and anagency's level 3 code or industrial awards.

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RECOMMENDATION

4.81 The Commission recommends that:

(a) the Code of Conduct prescribe a minimum standard of dress andpersonal presentation on the basis of appropriateness to theworkplace, having regard to occupational health and safety, culturaldiversity, local community standards, climate and the need toensure that the Service or an agency is not brought into disrepute;and

(b) Chief Executives should be required to develop , within thestandards set by the Code of Conduct , specific workplace-relatedstandards of dress and personal presentation where these arenecessary, provided that appropriate consultative processes areemployed in developing such standards , and any resulting standardis not arbitrary, unjustifiably discriminatory , or unfair in itsapplication to affected staff.

4.82 This recommendation is implemented in the Commission's draft Code ofConduct for Appointed Public Officials in Part 7 (Respect for Persons).

Use of Alcohol and Other Drugs

Issue 5.51 Should alcohol and other drug consumption be the subject of specificrequirements in a code of conduct?

Issue 5.52 Should consumption in the workplace be subject to special rules,particularly of alcohol and drugs in connection with ollicial duties?

4.83 At s.2.4 the Queensland Code provides:

"Officers should not -

at any time, allow the consumption of alcohol or restricted or dangerousdrugs to adversely affect their work performance or official conduct; or

consume alcohol while on duty except where related to the offi cer 's officialduties and subject to the ChiefExecutive 's approval and conditions. "

4.84 The Issues Paper (para.5.48) pointed out that alcohol and other drug usecan give rise to serious workplace and public trust issues which may spillover into the public conduct area (eg. personal abusiveness, sexual andother harassment, safety concerns and general disruption - all of which cancontribute to a decline in efficiency and productivity).

EVIDENCE AND ARGUMENTS

4.85 (a) The Water Resources Commission (S3) Code of Conduct contains apolicy on the use of alcohol and/or drugs:

"Commission personnel are encouraged not to consume alcohol or dangerous drugswhile on duty and will not be permitted to report for duty or continue to performtheir duties or to use Commission equipment when in a drug induced or alcoholrelated state of debility." (p.9).

(b) The Joint Submission (S15) stated:

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"The majority of Departments agreed that alcohol and other drug consumptionshould be the subject of specific requirements in the Code of Conduct. Apart fromthe intrinsic necessity to control the adverse effects of such consumption, it ensuresa consistent approach across agencies.

Some Departments suggested that some reference to appropriate counsellingservices for officers who develop alcohol and drug problems might be included inthe Code.

... one Department argued that this issue need not be dealt with in the Codebecause it is covered by Departmental policy and procedures developed in responseto obligations under the workplace Health and Safety Act 1989. It may also becovered in the Standard on Management of Diminished Work Performance to beissued by the Public Sector Management Commission in the near future. In asimilar vein another Department argued that such matters are more correctlydealt with by Chief Executives as either disciplinary matters or health matters,depending on the circumstances.

General support was given to the current provisions in the Queensland Code(Section 2.4). The current provisions imply concern that the workplace should notbe disrupted as a result of the negative effects of alcohol and drug use upon thework of officers. They also allow the Chief Executive some discretion to approvethe consumption of alcohol in special circumstances where factors such as socialvalues and hospitality must be taken into account.

Two Departments indicated that there would be no need to have a specific sectionrelated to alcohol and drug consumption in the Code if the section of the NewZealand code, `the private activities of any employee, was adopted in a revampedQueensland Code. This provides a flexible solution which would enable agenciesto control the use of alcohol and drugs where it would have an impact on the worksituation. "

(c) "Alcohol and drug consumption need not necessarily be the subject of specialrequirements in a Code of Conduct. This should be addressed by reference toacceptable work-related behaviour which not only covers alcohol and drug use butalso other factors that may impact on work behaviour." (PSMC (S24)).

(d) The CJC (S29) preferred the New Zealand Public Service Code ofConduct approach to "private activities" including drug and alcoholconsumption.

ANALYSIS OF EVIDENCE AND ARGUMENTS

4.86 Consumption of alcohol, in itself is not necessarily an official conductproblem. However, if an officer's work performance or safety, or theperformance or safety of others, is affected by alcohol or other drugs, amanagement problem is likely to ensue.

4.87 The New Zealand Public Service Code of Conduct does not refer to drug usespecifically, but deals with the private activities of any employee generally,and with the question of whether such activities have the potential to "bring(the) department into disrepute, or eopardise its relationship with Ministers, clients, orthe general public." (New Zealand State Services Commission 1990, p.25).

4.88 The New Zealand Code also makes the point that:

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"As a general principle, personal behaviour that does not interfere withperformance of official duties or reflect on the integrity or standin of thedepartment, is no concern of an employer." (New Zealand State ServicesCommission 1990, p.25).

4.89 However, there remains the possibility that drug consumption may lead toserious personal, interpersonal and organisational consequences in theworkplace. The evidence before the Commission recognised thislikelihood. There was general support for the pragmatic,performance-based approach to drug taking included in the currentQueensland Code.

4.90 There was no evidence suggesting changes either to the definition of"dangerous drug" adopted by the current Queensland Code, or to thecurrent approach whereby a CEO may specifically permit the consumptionof alcohol in identified work-related contexts.

4.91 However, on balance the Commission believes that the Queensland Codedoes not go far enough. It does not state that the use of alcohol and drugsmay, in certain circumstances, constitute grounds for disciplinary or otherpersonnel action, where the usage results in unsatisfactory workperformance, or decreased safety, or reflects adversely on the service, (eg.where an officer is seen to be affected by alcohol.

4.92 Further, the Commission believes that the potential consequences of drugand alcohol usage are sufficiently serious and prevalent to merit specialmention in the Code of Conduct. It does not agree with the approachadvocated by some that consumption of drugs and alcohol should not beidentified specifically but be subsumed under "personal behaviour" or"private activities". Other personal conduct which has the potential toaffect work performance should also be referred to in the code.

RECOMMENDATION

4.93 The Commission recommends that s.2.4 of the Queensland Code dealingwith the use of alcohol and other drugs should be strengthened by alsoreferring to an official's obligation to ensure that personal conduct does notbring the Service or an agency into disrepute, or result in unsatisfactorywork performance , or affect the performance or safety of others.

4.94 This recommendation is implemented in the Commission's draft Code ofConduct for Appointed Public Officials in Part 9 (Diligence).

Use of Official Resources

Issue 5.58 Is the use of official resources and facilities an appropriate subject fora code of conduct, or should such matters be treated as part of an of cer's generalduty to avoid waste and unnecessary expense?

Issue 5.59 Are there particular areas of concern in relation to use of officialresources and equipment which should be covered specifically by a code? If so,what are they, and what should the code require?

4.95 The Queensland Code provides:

"Departmental facilities and other physical resources should be used for theirproper purpose and provided with due care and maintenance." (s.2.5).

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4.96 This matter may be regarded as an ethical question involving public trust,or it may be seen as essentially a management problem, similar to thatrelating to the use of alcohol and drugs.

4.97 The Issues Paper (para.5.55) observed that grey areas exist in the use ofofficial resources within which it may be appropriate for the CEO toexercise discretion. For example, the use of departmental facilities by staffsocial clubs, the use of departmental libraries or computers by individualsand the use of buildings and facilities by community or church groups areexamples of use of official facilities which may be in the agency's broaderinterests, as well as in the interests of the broader community.

4.98 In recent times there has been considerable debate in Queensland overwhat constitutes proper use of official resources in the form of free orsubsidised travel for Members of the Legislative Assembly - the so-called"travel rorts" issue. While the current Queensland Code has nojurisdiction over elected representatives, it is arguable that the ethicalstandard espoused in the Queensland Code in respect of official resourcesshould have equal applicability to elected officials.

EVIDENCE AND ARGUMENTS

4.99 (a) "Departments generally supported the inclusion in the Code of a statementregarding the use of official resources. It is important to minimise waste ofpublicly funded resources.

One Department suggested that it is more appropriate to deal with this matterthrough legislation, specifically the Financial Administration and Audit Act1977. Another Department argued that strong internal controls monitored by aninternal audit function would be more effective in safeguarding official resourcesfrom abuse.

It was not considered relevant or appropriate to include provisions regarding thecommunity use of official buildings or facilities in a Code of Conduct for publicservice personnel." (Joint Submission (S 15)).

(b) "A general code of conduct should enunciate general principles that address therequirement to avoid waste and unnecessary expense in the use of official resourcesand facilities. A departmental code of conduct can contain specific provisions withrespect to such matters as the private use of official resources and facilities."(CJC (S29)).

(c) The Water Resources Commission's Code of Conduct (S3) currentlycontains provisions in relation to use of specific official resourcesand equipment. The use of Water Resources Commission equipmentand vehicles is dealt with under separate provisions in thatorganisation's code.

(d) Similarly the Code of Conduct of the Ipswich City Council (S8)provides guidelines for dealing with council property.

(e) "There was some support for the inclusion in the Code of advice on specific mattersin relation to the use of official resources. One Department argued that specificexamples of inappropriate use of official resources need to be stipulated. Anothersuggested that, as the use of official resources is becoming a more complex issue asmore work is undertaken at home, the Code should indicate that in certaincircumstances Chief Executives may approve the conditional use of officialresources such as computers by staff in their own time. " (Joint Submission(S15)).

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ANALYSIS OF EVIDENCE AND ARGUMENTS

4.100 There appears to be little need for additional general advice in a Code ofConduct warning against waste or the improper use of official resources.

4.101 As raised by the CJC and at least one department, given the range ofprovisions and procedures available to combat waste and improper use ofresources, the code may perhaps make a more useful contribution topromoting ethical conduct by providing examples of private or semi-officialuse of resources which are, in principle, acceptable. Examples include:

(a) use of an organisation's facilities by staff social clubs andindividuals;

(b) use of internal mail services, notice boards, etc., for advertisement ofprofessional or union activities;

(c) use of buildings and facilities, for example, by community or churchgroups, on a cost-recovery basis where appropriate;

(d) use by staff of departmental computers, or the use of libraryresources for private study purposes, particularly where a questionof additional costs arises from such use; and

(e) private use of motor vehicles (and other major equipment) entrustedto an officer in connection with official duties or as part of aremuneration package.

4.102 The Commission is aware that it is not practical in a general Code ofConduct to issue guidelines for specific instances of the use of officialresources.

4.103 The Commission believes that it is in such adjuncts to the general Code ofConduct that agencies should deal with the principles for the use of thepublic resources they hold in trust.

4.104 The Commission has already recommended elsewhere in this Report thedevelopment of agency-specific rules as a way of applying the requirementsof a general Code of Conduct to the specific circumstances of individualagencies.

RECOMMENDATION

4.105 The Commission recommends that Chief Executives and their equivalentsshould develop directions for their agencies to clarify acceptable andunacceptable uses of official resources . These specific directions should becompatible with the provisions of the general code.

4.106 This issue is generally addressed by Part 10 (Economy and Efficiency) ofthe Commission's draft Code of Conduct for Appointed Public Officials(Appendix F).

Lawful Directions

Issue 5.63 Are the Code's requirements, in relation to compliance with lawfuldirections, and objection to directions believed to be improper or illegal, adequatefor the range of situations which can arise in practice?

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4.107 The Queensland Code provides as follows:

"Officers should obey any lawful direction given -

by their supervisor; or

in the absence of their supervisor, any person having the authority to givethe direction.

Where on reasonable grounds an officer believes that a direction is improper orillegal, the officer -

should refer the grounds for objection to their supervisor or the personresponsible for the direction;

where instructed to proceed as originally directed and if the officercontinues to consider the direction improper or illegal, may refer theobjection to the Chief Executive and should confirm the objection in writingat the earliest opportunity. " (s.2.6).

4.108 The Queensland Code currently requires officials to obey directions unlessthey have reasonable grounds for believing those directions to be illegal.The current procedure states that an official should inform the personresponsible for the direction that it may be illegal. On failing to receive aproper response from the supervisor, an official should refer the matter tothe CEO. Alternatively the matter may, at the official's request, be dealtwith externally by PSMC grievance procedures.

4.109 The first of these procedures is suitable only for short term disputes andtakes little account of the possibility of high level misconduct. TheCommission's recent recommendations on Whistleblowing are relevant tothis matter.

EVIDENCE AND ARGUMENTS

4.110 (a) "A number of Departments considered the Code's requirements in relation tolawful directions adequate, especially when used in conjunction with the P.S.M.C.grievance procedures , whistle blowing mechanisms , and the Ombudsman 's role.However, several Departments were of the opinion that the Code needsclarification in this area ." (Joint Submission (S 15)).

(b) The Joint Submission (S15) also detailed a list of concerns:

that the code should provide that a public servant has the right to seekadvice in relation to the propriety or legality of a direction from his or herunion and/or professional association;

that the Code should state that officers who object to directions on the basisthat they are unlawful or improper may object to outside agencies inaddition to utilising internal mechanisms for objection;

that there is a need to ensure that natural justice applies both to the seniorofficer involved and to the junior officer who has received the direction;

that the Code is unclear as to whether the officer who challenged thedirection and referred it to the Chief Executive is required to proceed asdirected; and

that the Code is unclear regarding the situation where the disputeddirection required immediate action.

It is important that the procedure in the Code dealing with lawful directionsshould be sufficiently clear and detailed to cover all forms of disputes."

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(c) The CJC (S29) submitted that in addition to the present s.2.6 of theCode , there should also be: " ... a review or a grievance procedure andrecourse to an external agency in those circumstances where the grievance isdirected against a direction given by the Chief Executive. "

ANALYSIS OF EVIDENCE AND ARGUMENTS

4.111 Officials who wish to dispute a direction regarded as illegal or impropermay elect, depending on the circumstances, to have the matter resolvedexternally. Bodies to whom such matters can be referred include thePSMC, the CJC and the Ombudsman. Whistleblowing mechanisms will beavailable in the future if cases warrant such actions.

4.112 The Queensland Code does not indicate whether an officer who challengesa direction should continue to carry out the direction while the objection isbeing considered. It is possible that a final decision on such an objectionmay take a significant amount of time.

4.113 Officers may wish on occasion to challenge what are seen as unethical (asopposed to unlawful) practices, directions or decisions. As indicated by thesubmissions received, the code's provisions regarding compliance withpractices, directions and decisions which are subject to challenge "onreasonable grounds", are generally recognised as not adequate for therange of situations which may arise.

4.114 In most cases a dispute involving questions of personal or professionalethics or propriety can and should be able to be resolved within the agencyconcerned, by resorting to the Code of Conduct, relevant legislation,departmental directives or policy statements, or by a personal approach toa more senior officer for confirmation or clarification. Depending on theseriousness of the dispute and the issues at stake, however, this lastapproach often takes more persistence and courage than many officerswould care to risk.

4.115 In the rare cases where such issues require resolution at short notice,anecdotal evidence suggests that assistance is sought from - depending onthe issues - the relevant union, professional association, the PSMC, theAuditor-General, private legal advisers, or in some cases the Ombudsmanor the relevant regulatory agency. Success requires that one knows whomto ask, is in a position to do so and finds the right person available.

4.116 In Australia, the duty of an official to obey the orders of a superiorunquestioningly is not absolute. The Issues Paper discussed the relevanceof the defence of superior orders (the "Nuremburg defence") to theobligations of a public official. It is relevant to note that the High Court ofAustralia has reaffirmed the duty of an official to disobey unlawful ordersas recently as 1985, in its decision in relation to the 1983 "incident" at theSheraton Hotel in Melbourne, involving operatives of the AustralianSecurity Intelligence Service. (A v Hayden (No 2), (1985) 59 ALJR pp.6-36).

4.117 In particular, the Court held:

"These five cases illustrate the abiding wisdom of the biblical injunction againstputting one's `trust in men in power': Psalms 146:3; Jerusalem Bible, p.927. Theplaintiffs have been described without dissent as `upright, decent men servingtheir country'. The two rocks upon which they are however propositions of lawwhich are not to be moved to meet the exigencies of hard cases. Shortly andrelevantly stated, those propositions are: (i) that neither the Crown nor theExecutive has any common law right or power to dispense with the observance ofthe law or to authorise illegality... " (Deane J.), and

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"In Australia it is no defence to the commission of a criminal act or omission thatit was done in obedience to the orders of a superior or the government. Militaryand civilians have a duty to obey lawful orders, and a duty to disobey unlawfulorders. " (Murphy J.).

4.118 The Queensland Code does not recognise or address the evident need tominimise or prevent intimidation or victimization of officials who, onreasonable grounds, question or object to a supervisor's direction. Nor doesthe code refer to the opposite need to ensure urgent compliance withdirections (eg. in emergent cases of, say, hazards to health and safety).This matter is dealt with in the draft code for appointed public officialsattached to the Report (Appendix F).

4.119 As discussed elsewhere in this Report, the integrity of government andpublic administration would be enhanced if public officials were to berequired to recognise that they have a legal and moral duty to questioninstructions, practices or policy which appear, on reasonable grounds, to becontrary to the law, civil and human rights standards or the establishedethical principles or standards of the community. The public interest isnot usually well served by public officials whose only concern is their ownwell-being. On the other hand, a public official should not have to sacrificetheir career in order to challenge a dubious direction, or to get an ethicsissue discussed.

4.120 For these reasons the Commission takes the view that what is required isan independent and authoritative source of expertise, probably bestexternal to the agency concerned, from which an official may obtain adviceon the ethics or propriety of a particular practice, direction or decision.This information may be sought by an official either after failing to havethe matter resolved to their satisfaction internally, or where the matter issuch, or the officials involved are so senior, that it would not be reasonableto expect the officer to pursue the matter within the agency.

4.121 In Chapter Eight, paras. 8.60 - 8.69, the Commission proposes theestablishment of an Office of Public Sector Ethics (OPSE). TheCommission believes that the proposed body would not only be theappropriate source of such advice, but its existence would be evidence thatresponsible questioning of the propriety of official decisions, practices andactions was recognised by government as likely to encourage a moreresponsive and responsible public sector.

RECOMMENDATION

4.122 The Commission recommends the adoption and extension of the approachof the current code to provide for bona fide disputes to be raised with anappropriate external body, including the Office of Public Sector Ethics,where appropriate:

(a) where internal resolution has been attempted unsuccessfully;

(b) it is unreasonable to expect the matter to be raised internally; or

(c) where the matter is urgent and significant public interest issues areat stake.

4.123 A recommendation for the establishment of the Office of Public SectorEthics is made later in this Report in Chapter Eight.

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CHAPTER FIVE

REVIEW OF THE EXISTING CODE: CONFLICTS OF INTERESTS

Introduction

5.1 This chapter reviews the concept of "conflicts of interests" as it applies topublic officials. It draws upon relevant conceptual frameworks and appliesthese to an analysis of the provisions of the Queensland Code. It alsodraws on a range of research and other evidence available to theCommission in analysing the scope and usefulness of the present code.Where issues are discussed which are of relevance to elected officials, thiswill be noted in the text.

5.2 The chapter makes general recommendations on provisions to be includedin a new code or codes. Specific recommendations in relation to electedofficials are discussed in this chapter and in Chapter Seven.

5.3 The Queensland Code deals in a limited way with the question of howappointed officials should deal with conflicts between their official dutiesand their personal interests. The relevant parts of the Queensland Codeare reproduced in this chapter in the course of the discussion.

Conflicts of Interests

5.4 The potential for a conflict of interests arises because public officials arerequired to exercise discretionary powers, or because their employmentplaces them in situations in which they are able to obtain improperly, forthemselves or for others, a benefit or advantage additional to theremuneration due to them under the terms of their employment.

5.5 Conflicts between the public duties and the private interests and activitiesof officials gave rise to the Fitzgerald Inquiry and its Report whichidentified a number of instances where high-level conflicts of interestsarose and were not avoided, either because of the absence of any formalcode of conduct, or because of failure to be sufficiently scrupulous inidentifying a conflict when it arose.

5.6 Fitzgerald observed:

"Impartial objective decision-making is the hallmark of rational government. In ademocracy, it is also imperative that decision-making be seen to be impartial andobjective. " (Fitzgerald Report 1989, p.137).

5.7 The Ethics Survey found that 90% of respondents believed that 'publicservants should avoid real and apparent conflicts of interests". It seemsclear, however, that existing provisions for minimising or avoiding suchconflicts are not effective. It may be the case that there is a genuine lackof understanding of such conflicts and the reasons why they should beavoided. Alternatively, officials may experience a genuine difficulty inrecognising when their private interests are in conflict with their publicduties.

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5.8 It is important to note that conflicts of interests can cover the fullspectrum of interests - they are not restricted to pecuniary ( ie. financial)interests . Typically public sector Codes of Conduct direct attention toconflict of pecuniary interests but largely ignore other areas of potentialconflict . In contrast with the United States and Canada, Australia hasgenerally placed less emphasis on conflicts of interests in its codes.

5.9 The term "conflict of interests " has been defined in many ways. For thepurposes of this Report a suitable definition is provided by Kernaghan:

" ... `conflict of interest' may be defined as `a situation in which a public employeehas a private or personal interest sufficient to influence or appear to influence theobjective exercise of his official duties."' (Kernaghan 1975 , p.13).

5.10 A threshold problem is getting officials to recognise that a situation has apotential for a conflict to arise because of the person 's status as a publicofficial . This difficulty emphasises the importance of raising officials'awareness of conflicts of interests through training.

5.11 Following on Kernaghan's definition, Cooper identified and named anumber of forms of conflict of interests:

(a) bribery - illegal acceptance of money by an official for special favours;

(b) influence peddling - attempts by an official to influence decisions infavour of a third party;

(c) information peddling - provision of inside information for personaladvantage by an official;

(d) financial transactions - officials may stand to gain personally if theymake certain decisions;

(e) gifts and entertainment - seeking or accepting gifts may influencean official's impartiality;

(f) outside employment - part-time employment or consulting outside ofofficial duties may have deleterious effects on performance of officialduties;

(g) future employment - officials may be tempted to give favouredtreatment to private organisations which may be future sources ofemployment for the official; and

(h) dealings with relatives - a public official may be in a position to dofavours for relatives (Cooper 1990, pp.114-8).

5.12 Such a list illustrates the range of situations in which conflicts of interestsmay arise for the public official. It underscores the importance ofstandards and guidelines to assist officers to recognise and deal withpotential conflicts in an appropriate manner.

5.13 Notwithstanding Cooper's useful list, "interests" are often difficult todefine unambiguously. They are usually understood as including material,financial and other economic interests (whether in the form of potentialpecuniary gain or avoidance of loss), employment and career interests,political and religious interests, professional, trade union and ideologicalinterests.

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5.14 In addition , the interest at issue must be sufficiently significant to giverise to a reasonable public perception that an official has a private orpersonal interest sufficient to influence , or be likely to influence, theproper exercise of their responsibilities.

5.15 In the real world, conflicts of interests are unavoidable . The importantissue is not so much the existence of a conflict , but how to resolve ormanage it appropriately . Once the significance of a particular conflict hasbeen assessed , the management or resolution of actual or perceivedconflicts of interests becomes crucial because public confidence in theimpartiality and probity of public servants and elected officials , and thesystemic integrity of public institutions should be protected.

5.16 In a paper for the Ethics Seminar , Commissioner J Kelly of the CJC (T96)stated:

"Officials must contend with real, potential and apparent conflicts of interest, sothat they not only comply with their responsibilities, but are also seen to comply.Public confidence in official decision making is essential, and achievement andmaintenance of that confidence is no simple matter."

5.17 Commissioner Kelly also noted the inherent difficulty of ascertaining whenan interest becomes significant:

"No man or woman is an island. Each individual is the centre of a network,which may include pecuniary and occupational interests, family and friends,community and ethnic groups, sporting clubs, voluntary organisations, religiousgroups, service clubs, political parties, trade unions, producer and industryassociations, and so on." (T96).

5.18 He considered that the relevant officer was, however, generally the onlyperson in a position to assess the significance of a particular personalinterest at the appropriate time:

" ... the significance of any one of these interests in any situation arising in thecourse of an officer's duties can be determined in a timely fashion only by theofficer concerned.

The significance of particular matters will vary between individuals,organisations , and at different levels in the same organisation ." (T96).

General Procedures

Issue 5.96 What mechanisms for dealing with potential or actual conflicts ofinterest of elected and appointed officials and office holders are appropriate forQueensland?

5.19 In s.3.1, "General Procedures", the Queensland Code provides proceduralguidance on how conflicts of interests should be handled:

"In the course of their duties, officers should not give preference to any person,organisation or interest (whether pecuniary, commercial, political, religious, orother) as a result of any private association with that person, organisation orinterest.

Immediately on becoming aware that a conflict between private interests andofficial duty, whether real of apparent, has arisen or is likely to arise (includingany conflict of interest involving remuneration or employment external to thePublic Service), officers should disclose such details in writing to their ChiefExecutive.

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Such disclosure should automatically be made by officers engaged in regulatory,inspectorial, personnel selection or other discretionary functions when dealingwith relatives, close friends or business acquaintances.

On receipt of a disclosure from an officer, the Chief Executive will determine theextent of any conflict of interest and direct the action required to resolve theconflict. Failure to comply with such direction may make the officer liable todisciplinary action under the Act.

At any time, an officer who is unsure whether a conflict of interest exists withofficial duties should consult any relevant departmental guidelines or, whereappropriate, seek a direction from the Chief Executive. " (p.4).

5.20 The Queensland Code requires ad hoc disclosure (declaration) by officialswho believe that they are in a position where a conflict of interests mayaffect the performance of their duties. But the code provides littleprocedural guidance to CEOs as to how such declarations should behandled. There is no suggestion of registration of such interests, or ofother action such as divestment, prohibition or transfer of the officerconcerned.

EVIDENCE AND ARGUMENTS

5.21 The evidence before the Commission argued for a variety of proceduralsolutions for dealing with conflicts of interests. These range from minimalnon-regulatory approaches to detailed schemes defining all steps in theprocess.

5.22 (a) The 1979 Report of the Committee of Inquiry concerning Public Dutyand Private Interest (the "Bowen Committee") identified sixprincipal options to avoid or resolve conflicts of interests:prohibition, declaration, registration, authorisation, divestment, anddisqualification. The Committee also believed that the options arenot mutually exclusive and may be applied in combination. TheCommittee found:

"Indeed reliance on a single option by itself can give rise to a piecemeal approachthat fails to resolve or avoid conflicts adequately. For example, it may not alwaysbe enough to disclose an interest and the conflict it creates - authorisation ordisqualification may also be necessary." (1979, p.37).

... it is clear that conflicts of interest are inevitable and their control is part of(b) "the general management task. There is no one solution. It appears to requireintegrated application of the available management tools." (Commissioner

Kelly (T99)).

(c) The Queensland State Service Union (S9) argued for minimumregulation:

"Conflicts of interest will be self-evident to any officer of experience who is likely toencounter such circumstances. Exampling of what might constitute a conflict ofinterest ... will merely promote a `regulation oriented' culture which will tend tosubjugate the exercising of common sense."

(d) Irrespective of the level of the official's experience, however,Commissioner Kelly of the CJC (T100) commented:

"However well-versed they may be in ethical principles, staff cannot operateeffectively and impartially unless they have well-designed and comprehensiveadministrative procedures in place which allow them to do so."

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(e) "Generally Departments held the view that conflict of interest matters should beregulated by the Code of Conduct. However, Departments were divided regardingthe most appropriate mechanism for dealing with potential or actual conflicts ofinterest of public servants." (Joint Submission (S 15)).

ANALYSIS OF EVIDENCE AND ARGUMENTS

5.23 The consensus among the submissions and in the academic andprofessional literature available to the Commission is that it isappropriate for conflicts of interests affecting public officials to beregulated by a Code of Conduct.

5.24 The Commission agrees with this view. The Commission also believes thatit is necessary to provide general directions and examples of inappropriatebehaviour in a Code of Conduct to assist public officials in determining theappropriate course of action where the mechanisms provided interact oroverlap.

RECOMMENDATION

5.25 The Commission recommends that conflicts of interests involving publicofficials should continue to be regulated by a Code of Conduct.

5.26 Provisions concerning management of conflicts of interests have beenincluded in the draft Code of Conduct for Appointed Public Officials(Appendix F) in sections 8.2 (Conflicts of Interests) and 8.3 (Requirementsfor Declaration on Registration of a Conflict of Interest) and the draft Codeof Conduct for Elected Representatives (Appendix G) in sections 6.3 and6.4 (Appendix G).

Mechanisms for Dealing with Conflicts of Interests

Issue 5.98 Should all public officials , whether elected or appointed and includingemployees or Members of local government, be required by a code of conduct toidentify, at their discretion, any actual or potential significant conflict betweentheir private interests and public duty:

(a) as it arises (ie. in the course of a particular meeting of the Council, in thecase of local government, or in the course of events, for other officials) bydeclaration;

(b) in advance (including prior to contesting a relevant election, or prior toseeking a relevant position as an official) by registration.

5.27 The submissions to the Commission's review dealt mainly with twoprincipal mechanisms for dealing with potential or actual conflicts ofinterests: declaration and registration.

5.28 The Bowen Committee identified the essential distinction betweendeclaration and registration: declaration means ad hoc disclosure ofrelevant interests at the relevant time whereas registration requires " ...disclosure of specified interests at regular intervals, without regard to the immediatecircumstances ... " (1979, pp.38-9). This distinction has been applied in thefollowing sections.

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DECLARATION

Nature of Declaration

5.29 Declaration can be a written or oral statement (perhaps to a single personsuch as a CEO) identifying an interest which has the potential to influenceor may be seen as influencing any decision or action of a public official inperforming official duties.

5.30 An advantage of the declaration option is that the relevant information ismade available at the appropriate time. The need for others to constantlyconsult a register of disclosure of interests is avoided.

5.31 The Queensland Code and that of the Queensland Electricity Commissionrequire only ad hoc declaration to the CEO of any perceived conflictbetween private interests and official duty. The Queensland Code provides:

"Immediately on becoming aware that a conflict between private interests andofficial duty, whether real or apparent, has arisen or is likely to arise (includingany conflict of interest involving remuneration or employment external to thePublic Service), officers should disclose such details in writing to their ChiefExecutive.

Such disclosure should automatically be made by officers engaged in regulatory,inspectorial, personnel selection or other discretionary functions when dealingwith relatives, close friends or business acquaintances.

On receipt of a disclosure from an officer, the Chief Executive will determine theextent of any conflict of interest and direct the action required to resolve theconflict. Failure to comply with such direction may make the officer liable todisciplinary action under the Act.

At any time, an officer who is unsure whether a conflict of interest exists withofficial duties should consult any relevant departmental guidelines or, whereappropriate, seek a direction from the Chief Executive. " (s.3.1).

Local Government

5.32 It is often argued that Members of local government councils should besubject to a requirement of utmost good faith, due to the fiduciaryrelationship which exists between elected Members of such councils andthe public. To that extent then, Members are required to:

(a) use their official powers for proper purposes;

(b) avoid situations where personal interests conflict with individualresponsibility and duty to the Council each serves (see Thorne 1990,p.232).

5.33 Issues Paper No. 15 (para.5.84) noted that the procedure in localgovernment for recording ad hoc declarations of interests may not beeffective because:

(a) Members may not be sufficiently scrupulous in identifying conflictswhich are subject to the declaration requirement;

(b) the register of declaration book is not open to inspection by thepublic, it is only open to inspection by Members;

(c) there appear to be inadequate procedures to ensure compliance withs. 14 of the LG Act which requires declaration of pecuniary interests.

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5.34 Although limited to pecuniary interests, s.14(4) of the LG Act purports toregulate all forms of conflict of interests by providing, essentially, thatMembers are to disclose any conflict of interest, and are disabled fromdiscussion of or voting on matters in which they have a conflict ofinterests. The Minister may remove any disability imposed by theprovision if the number of Members disabled would impede the transactionof business.

5.35 The LG Act (s.14(4)(viii)) provides a discretionary power to Councils topass a resolution to exclude a Member who has a pecuniary interest fromthe meeting which considers a relevant matter.

5.36 M Reynolds (T109), who served as Mayor of Townsville from 1980 to 1989,advised that s.14(4) was not always followed:

"... elected members over many years at many councils didn't leave the room. Infact, there was the practice in local government, in many councils, not to leave theroom but just to push [the] chair back about six inches. "

5.37 Members cannot be disqualified for breach as the penalty imposed bylegislation is by way of a fine. Therefore, as no sentence is imposed therecan be no disqualification under s.7(2)(iv) of the LG Act. Also, there is nostatutory provision whereby an individual can initiate a legal action onaccount of breach of the declaration provisions as an individual does nothave the requisite legal standing. An individual would require the fiat(approval) of the Attorney-General to proceed on account of any suchbreach.

5.38 Officers in local government are also required to declare their pecuniaryinterests under sub -section 17(5) of the LG Act.

5.39 Commissioner Kelly of the CJC, (T97) stated in the Public Seminar:

"Local Authorities provide the second largest source of allegations entering thecomplaints system, [of the CJC], but they comprise only 463, or 7.4% of the total.... Local Authority complaints tend to be more complex, and to contain a greaterproportion of allegations of corruption and favouritism. These comprise 56% of thetotal, as against 4% from the police service."

5.40 Yet , to the knowledge of the LGAQ , there have been no prosecutions forbreaches of the LG Act pecuniary interest provisions. Given the abovestatistics cited by the CJC, the LGAQ (T105) described the presentprovisions of the LG Act as totally inadequate.

5.41 The Commission agrees with this assessment.

REGISTRATION

5.42 EARC reported on the registration of interests of elected representatives ofthe Parliament of Queensland in August 1990 (Report 90/Rl). Theregistration of interests as recommended by the Commission (with anumber of modifications recommended by the Parliamentary Committee)is now in place. The Commission has considered whether a separateregister of Ministers' Interests should be established. The Commissionhas concluded that the provisions of the Register of Member's Interests aresufficiently extensive to identify any potential conflicts of interests whichmay arise for Ministers as a result of their executive duties. A separateregister for Ministers is unnecessary.

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5.43 The Commission is of the view that registration of interests is now anissue only in relation to:

(a) senior officials and officials in "sensitive" positions in governmentdepartments and statutory authorities;

(b) elected Members of local government councils; and

(c) senior local government officials.

5.44 A registration regime assumes that those subject to it have privateinterests of a sufficiently significant value to be likely to give rise to aperception that they could conflict with an official's proper performance ofofficial responsibilities. Therefore registration is usually only consideredfor senior officials, or for others in sensitive positions such as contracting,investment, or commercial regulation activities.

5.45 Registrations of interests, such as those made by officers of theCommonwealth Senior Executive Service (SES) and other seniorCommonwealth officials, are usually regarded as confidential, and are heldby the relevant CEO. The purpose of such registration is primarily toassist a CEO to assign (or re-assign) senior staff to responsibilities whichavoid potential or actual conflicts of interest.

5.46 The process of regular registration may also cause an official to considerafresh the possibility of conflict, especially where both assets and dutieschange over a relatively short time. Registration is usually automaticallyreviewed on a six monthly or annual basis, at the discretion of the CEO.

EVIDENCE AND ARGUMENTS

5.47 Submissions received by the Commission generally addressed the twomain issues : registration of interests and access to the registeredinformation.

(a) The Bundaberg City Council (Sll) submitted that all elected andappointed officials should identify any conflicts of interests inadvance by registration.

(b) Cr H Schwabe (S18) submitted that interests should be identified inadvance : "... (publicly, prior to contesting a relevant election , and to the relevantsuperior when seeking a relevant position as an officer)."

(c} This raises the proposition that the public is entitled to be informedin advance of an election of any real or potential influences affectingcandidates which may lead to a conflict of interest if a candidate issuccessful. An analogous argument was submitted by the BribieIsland Chamber of Commerce Inc. (S28), that "relevant pre-electioninformation" should be disclosed to the public. For example:

"... Council Chairman, Cr. A. is married to Cr. B. but Cr. A. electioneered underCr. A., not Cr. B. which was her married name. When voting for a shirechairman few were aware of the quiet marriage a few months prior to theelection. The two most powerful positions in the Council are now Cr. A. asChairman of the Shire Council and Cr. B. who was appointed Chairman of theFinance Committee immediately after the election. `Three votes out of the one bed'as the saying goes. "

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(d) 'A number of Departments advocated a system of mandatory registration ofinterests. They stressed that registration requirements should apply only to seniorofficials, since the i mpact of the decision-making process at that level is mostsignificant." (Joint Submission (S15)).

(e) B Marney (S25) suggested that the public act as a watchdog inrespect of the registration of pecuniary interests and that otherofficials be legally obliged to report inadequate registration ornon-registration of interests:

"It might be possible to provide for a stricter policing of this issue by makingregisters of pecuniary interest readily available for public scrutiny at all times sothat the public is enabled to play a much more effective `watchdog' role than ispresently the case. As well, some legal responsibility should be placed on theshoulders of all elected representatives and officials so that any knowing, orsuspecting, one of their number of breaching the pecuniary interest requirements,yet failing to draw this to the attention of the appropriate authority, should be asliable under the law as the person committing the breach.

In terms of the mechanics of Local Authority decisions which could involve suchconflict of interest, I believe it is imperative that the names of all council members(and the way they vote) should be officially recorded in all votes, other thanroutine votes such as, for example, the adoption of committee reports when theseare not the subject of dissent. "

(f) Commissioner Kelly of the CJC (T99) commented to the PublicSeminar:

"Registration of interests is a useful procedure which is becoming more widelyaccepted, and is mainly effective in engendering public confidence in theimpartiality of representatives and senior officials. There is an increasing publicexpectation that elected representatives at all levels will be required to list theirimmediate pecuniary interests in a public register. Senior officials, theirimmediate families, and the immediate families of elected representatives are alsobeing required to list their interests for confidential registration. Diffusion ofinterests and the right to personal privacy effectively limit this process. At most,it can extend as far as immediate families of representatives and officials. It will,therefore, not anticipate all potential areas of conflicting pecuniary interest, whichwill need to be dealt with by other means, usually declaration."

(g) The LGAQ ( S16) argued in favour of mandatory registration:

"The Association believes that a pecuniary interest register should be establishedThe register used for State Parliamentarians is regarded as acceptable as it isabout the nature of interest and assets as opposed to requiring specificinformation on values. The pecuniary interest register should also contain detailsof closely related persons, both in business and privately.

The pecuniary interest register should be held by the Council Clerk and should beavailable to the public on request to the Clerk with the exception of the sectioncontaining the interests of closely related persons.

Possible misuse of information within the register is of concern to the Associationalthough there appears to be limited practical or reasonable means of controllingpublic access to those with a legitimate reason for requesting access to theregister. Consequently, the register would be a public document although theClerk should be empowered to keep a record of those seeking access to the registerand their reasons for requiring access. In addition, members should, perhaps,have access to the record of inquiries upon application to the Clerk.

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It would also seem appropriate to examine whether it is feasible to place somerestriction on media publication of details within the register. The potential existsfor damage to be done to personal or commercial interests through such publicity."

(h) " ... it is arguable that such registers should not be open for public inspection.One difficulty with maintaining a register for senior officers is determining whenan officer should be categorised as a senior officer. ... It would be possible ... todefine the requirement for senior officers to disclose their interests in terms ofwhether or not the particular officer holds accreditation pursuant to section 17(2)of the Local Government Act 1936. Consideration could perhaps be given tolinking the disclosure requirements for elected members and officers to mirror theprovisions applicable to State Departments and Public Servants. " (Ipswich CityCouncil (S8)).

(i)

(j)

"There was no consensus among the Departments favouring registration on thequestion of access to the proposed register. Some advocated restricted access,while others supported a register open to public examination. Of course privacyconsiderations are very important here. It may be a gross invasion of privacy toallow the public to examine any register of the pecuniary interests of publicservants." (Joint Submission (S15)).

On the other hand the Queensland Watchdog Committee (S19)believed that:

" ... in the case of elected representatives, the register should be public, and forofficials, available to the appropriate investigative bodies (eg CJC or Office ofGovernment Ethics). "

(k) The Joint Submission (S15) advised that some departments believedthat declaration of interests to the CEO is sufficient:

"A number of Departments regarded declaration of interests to the Chief Executiveby officers at all levels to be an adequate mechanism to guard against conflict ofinterest situations. Consideration should be given, however, to just howappropriate it may be to require junior staff to declare their interests. In somecases subsequent registration of those interests might be required, depending uponthe circumstances. When and if a conflict situation arises, this may also require anadvice to the Chief Executive. It should be noted that a register of the interests ofChief Executives is currently held by the Cabinet Secretariat."

(1) In relation to disclosure of interest, the Ipswich City Council Code ofConduct (S8) requires Members and appropriate staff to disclose:

" ... in a written return or at the relevant meeting, the interests which might be inconflict with their public or professional duties as specified in the LocalGovernment Act). "

and

"[disclosure] should be made promptly, fully and in writing, or in cases of urgencymade orally and reduced to writing. "

(m) The LGAQ (T105) raised the argument that registration of interestswould discourage nominations for local government elections becauseexisting Members have stated that they are not prepared to suffermedia comment on their assets and business affairs . The Associationstressed that given the closeness of local government to communities,media access and publication of local government registration detailswould expose Members to media scrutiny "... which would far exceed thelikely outcomes of allowing the matter to be published in any event."

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In addition to elected Members , the LGAQ (T105) believed that " ...senior officers with delegated power or statutory responsibilities ... " should alsobe required to register " ... assets and interests ." However, theAssociation argued that access to registered details of senior officials'interests should be limited to the CEO and be open to the Councilonly and not available to the public.

(n) M Reynolds (T112) did not agree with the LGAQ that media accessshould be restricted:

" .. if we're really going to be talking about an open and participatory system ofgovernment at a local government level, I think that's one of the things that just hasto go along with the system that we're proposing. "

(o) In its written submission the LGAQ ( S16) noted that:

" ... potential exists for damage to be done to personal or commercial intereststhrough such publicity. "

(p) Woongarra Shire Council (S27) argued:

"Actual and potential pecuniary interests should be identified and ... [registered]

upon accepting an office or position."

The Council also indicated support for wider public access todeclarations provided that applications to view them are not frivolous:

"Pecuniary Interest Declarations should be public documents available forinspection by application to the Full Council however penalties should exist forfrivolous applications to view same. "

ANALYSIS OF EVIDENCE AND ARGUMENTS

5.48 The Bowen Committee cited the contemporary arguments in favour ofcompulsory registration of interests:

(a) registration would enable the public to attach proper weight to thedecisions and conduct of officials;

(b) registration would deter misconduct by potentially dishonest officials;

(c) registration would relieve officials' anxieties by publication of assetsand liabilities;

(d) the public has the right to know influences operating on members;and

(e) registration would protect officials from the common law principleinvalidating actions taken in conflict situations (Bowen CommitteeReport 1979, pp.44-9).

5.49 The usual arguments against compulsory registration include:

(a) registration is an unwarranted invasion of privacy;

(b) registration deters suitable persons who might otherwise haveentered public life;

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(c) registration is ineffective, given the ease with which official's affairscan be re-arranged to avoid the requirements of disclosure;

(d) registration impugns the integrity of those required to register; and

(e) registration makes public personal information which might be usedto the disadvantage of those required to register.

5.50 There are weaknesses in both sets of arguments. But public and politicalperceptions of the need to provide workable protection against abuse ofoffice have led to regimes for the mandatory registration of the significantpecuniary and related interests of federal Ministers and seniorCommonwealth officials since 1985 in Australia.

5.51 The federal governments of the United States and Canada and most Stateand provincial governments and municipal administrations in thosecountries have for many years sought to manage conflicts of (especiallypecuniary) interests by means of specific legislation requiring declarationand/or registration of interests.

5.52 In the United States at least, this approach has given rise to an elaborateregulatory structure supported by formal rulings on specific cases by theOffice of Government Ethics. Prosecutions are not unknown, but there is ageneral perception (inherently difficult to prove given the nature of theproblem) that the legislation is largely ineffective in preventing officialcorruption, and is expensive to administer.

5.53 It appears that the Government of Canada is taking a more pragmaticapproach (see Langford 1990, (Part 6)), concentrating on managing theresolution of conflicts in the public interest, and recognising that while thepublic service is not a closed order, its Members will inevitably haveconflicts between their private interests and official duty. The realproblem is not prevention, but resolution. Professor Langford's preferredsolution is education of officials and managers, to sensitize them to theissues in order to minimise the occurrence of real conflict situations.

5.54 The Queensland Criminal Code (s.89 and s.90) already prohibits publicservants from taking a beneficial interest in a contract or business dealingof the department which employs them. Interests of a prohibited kindnevertheless continue to arise, perhaps through ignorance.

5.55 However, a number of submissions, comments at the Public Seminar andanecdotal evidence indicate that instances of unresolved conflicts arecommon, indeed perhaps the norm, especially in local government, whereofficials knowingly fail or refuse to observe the relevant statutoryprovision, or the appropriate Code of Conduct (M Reynolds (T110)).

5.56 The Commission has noted recent developments in the university sectorwhereby academic and other members of staff are included in significantfinancial dealings directly with the private sector. The Commissionconsiders it to be appropriate that Vice Chancellors be responsible forensuring that adequate procedures for dealing with significant conflicts ofinterests are in place in their institutions.

5.57 The submissions demonstrate in principle general support for requiringsignificant material interests of senior officials to be registered. There issome variation in the preferred approach to the problem:

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(a) Mandatory Registration:

(i) generally supported for senior public officials (Joint Submission(S15));

(ii) supported for senior officials and their immediate familyconnections (Commissioner Kelly (T99));

(iii) reservations about public access (Joint Submission (S15));

(iv) supported for elected representatives of Local Authorities(Queensland Watchdog Committee (S19)); supported withqualifications as to keeping records of registration for access,especially by media interests (LGAQ (S16);

(v) common registration supported for Local Authority Membersand officials reflecting respectively the State Parliamentary andpublic service requirements (Ipswich City Council (S8));

(b) Mandatory Declaration:

(i) several submissions identified existing difficulties withdeclaration, or implied that existing provisions either do notwork or are not seen to be policed adequately (eg. M Reynolds(T110); Commissioner J Kelly (T97); LGAQ (T105));

(ii) there was some support for dealing with conflicts by declarationalone (Joint Submission (S15)).

(c) Authorisation and Prohibition:

(i) neither option was addressed by submissions or comment at theSeminar;

(ii) prohibition is already available under the Queensland Code inthat, once a conflict is recognised, a CEO may direct whatevercourse of action is necessary to resolve the conflict (QueenslandCode s.3.1).

5.58 The question remains of course whether registration, by itself, is likely tobe effective. Rational conflict of interests principles, at the very least,require not only regular registration but the public disclosure of conflict asand when it arises.

5.59 Registration and declaration are not mutually exclusive options. TheBowen Committee recommended that registration of interests besupplemented by ad hoc declarations of interest by reason of the latter'simmediacy and relevance (Bowen Committee Report 1979, p.39).

5.60 This Commission's Report (90/Rl) on its Review of Guidelines for theDeclaration of Registrable Interests of Elected Representatives of theParliament of Queensland (August 1990) recommended a scheme ofmandatory declaration of MLAs' interests and of the interests of theirspouses of which an MLA was aware, to be effected within 30 days afterthe commencement of each session of Parliament. The Reportrecommended that such a register be a public document, and that failureto provide such information should to regarded as contempt of theLegislative Assembly. The recommended Register was established in late1990 as the "Register of Member's Interest"; a "Register of RelatedPerson's Interests" has also been established.

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5.61 In its Report EARC stated:

"Public access to the Register is a crucial requirement if the objectives of such amechanism are not to be frustrated. The public declaration of interests providessome basis upon which the integrity of Members may be judged. " (EARC 1990b,

p.42).

5.62 The Commission then recommended, in the context of State Parliament,that:

... the Register of Members' Interests shall be available for unrestricted inspectionby any person under conditions as to place and time of inspection to be laid downby the Legislative Assembly from time to time. " (EARL 1990b, p.43).

5.63 It is the Commission's view that no persuasive reason has been advancedas to why the significant interests of Members of Local Authorities shouldnot be required to be registered in the same manner and to the sameextent, as the interests of MLAs.

5.64 The evidence and submissions suggest that the existing provisionscovering the ad hoc declaration of emergent conflicts of interests byofficials, including Local Authority officials, are unacceptable, and shouldbe supplemented by regular mandatory registration on a confidential basisto an appropriate senior official or responsible Minister as follows:

Registration by: Registration with:

Senior Executive Service ) Chief Executive Town or Shireand equivalents in senior ) Clerk/Vice Chancellor/ormanagement, senior ) equivalent as appropriateprofessionals including senior )university administrative staff )

Designated senior staff ) Chief Executive/Town or Shireresponsible for contracting, ) Clerk/or equivalent aslicensing or inspectorial ) appropriatefunctions )

Chief Executives/Town or ShireClerks agency heads/statutoryoffice-holders/heads ofacademic institutions

Chair, PSMC/Mayor or Chairman) responsible Minister/ or Chair of) Council as appropriate

5.65 It is apparent that registration on a regular basis, together with ad hocdeclaration when a specific form of conflict arises or is recognised as likelyto arise, is probably the most effective and generally acceptable approach.There is no apparent reason why Queensland experience in this areashould be any different from that of those Australian administrations, andother Commonwealth and US administrations, which have adopted suchregimes over the past two decades.

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RECOMMENDATION

5.66 The Commission recommends that provision be made for other Registers ofInterests, modelled on the Register of Member's Interests , which require:

(a) mandatory ad hoc declaration to an appropriate authority ofsignificant pecuniary and other material interests of Members ofLocal Authorities and certain appointed officials and their immediatefamily members where the interests have the potential to give rise toreal or apparent conflict with public duty;

(b) mandatory public registration of the significant pecuniary and othermaterial interests of Members of Local Authorities on an annualbasis; and

(c) mandatory confidential registration of the significant pecuniary andother material interests of certain appointed officials on an annualbasis, through an administrative process appropriate to the officerinvolved according to the following arrangements:

Registration by: Registration with:

Senior Executive Serviceand equivalents in seniormanagement, seniorprofessionals including senioruniversity administrative staff

Designated senior staffresponsible for contracting,licensing or inspectorialfunctions

Chief Executive Town or ShireClerk/Vice Chancellor/orequivalent as appropriate

Chief Executive/Town or ShireClerklor equivalent asappropriate

Chief Executives/Town or ShireClerks agency heads/statutoryoffice-holders/heads ofacademic institutions

) Chair, PSMC/Mayor or Chairman) responsible Minister/ or Chair) of Council as appropriate

What Interests Should Be Declared and/or Registered?

Issue 5.99 Should officials be required to declare:

(a) only significant conflicts involving private pecuniary interests; or

(b) conflict of interests of any kind, including those arising from the interests offamily members or relations?

Issue 5.100 Should officials be required to register:

(a) only significant conflicts involving private pecuniary interests; or

(b) conflict of interests of any kind, including those arising from the interests offamily members or relations?

5.67 Having determined that certain categories of public official in addition toMLAs should be required to observe declaration and registration regimes,the question remains as to the particular kinds of interest which should bedeclared.

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EVIDENCE AND ARGUMENTS

5.68 (a) The LGAQ (T104) reiterated its view that pecuniary interest must beclearly defined because:

"It is an area of concern under the current law, and there are many situationswhere local government decision-making could be disrupted if the definition istaken well beyond the area. of monetary gain or loss. For example, in smallercommunities it is not uncommon for local government officials to be members oflocal clubs and organisations . The council is often called upon to make decisionsabout matters affecting those bodies, and in these situations the behaviour shouldbe simply in accordance with a basic code of ethics and a requirement to act in thepublic interest.

Similarly, there are many voluntary positions and interests undertaken by localgovernment officials, and these should be outside the definition of a pecuniaryinterest. Such interest could be said to be held by a significant portion of anycommunity and should be exempted from specific legislative provision. In manyrespects, these interests could be identified as political interests in the broadestsense of the word, and everything elected representatives do has this interest as abackground. It's hard to exclude it from their considerations. "

(b) The Livingstone Shire Council (S5) stated that all public officials atthe senior management level and above should register significantactual or potential conflicts: "A system of registration should require allpublic officials at the senior management level and above to identify significantpersonal interests which may create actual or potential significant conflict betweentheir private interests and public duty."

"The interests of family members a4d relations should be included as they are alsoa significant interest of the public official."

However the Council provided cautionary advice: "Any system whichrequires declaration of every potential conflict of interests is doomed to failure. "

(c) Bundaberg City Council (S11) supported a strict approach:

"... all Public Officials whether elected or appointed should be required to declarein advance by registration conflict of interests of any kind, including those arisingfrom the interests of immediate family members."

(d) 'As it is difficult to define what a significant and what a not so significant conflictis it seems desirable to declare all." (Cr H Schwabe (S18)).

(e) In relation to s.14(4) of the LG Act which deals with pecuniaryinterests, Ipswich City Council (S8) stated:

"While the general thrust of this provision is sound, there are some constantpractical problems which face Local Authorities. For example, many localauthority aldermen are members of sporting clubs, RSL clubs or other similarbodies, whether incorporated or not ... membership of such clubs should always notpreclude a Council member from dealing with a particular issue relating to thatclub ... However, in those cases where there may be some potential for a minorpecuniary interest to arise, then the member should not be precluded from voting onthe matter where he or she is simply a member of the club."

(f) As to the extent of non-pecuniary interests which should be declared,Aramac Shire Council (S4) stated:

"There should be a minimum disclosure for all officials and elected and appointedstaff eg

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1. Property interests within the local authority area.2. Membership of any political party.3. Membership of any professional body.

In addition the onus should be on the official to declare any other matter he/shethinks may create a conflict of interests."

(g) ICAC argued that local government councillors should not beinhibited by trivial matters in the performance of their official duties(Local Government: Conflicts of Interest 1991, p.31). In respect ofpersonal interest ICAC suggested that a wide view must be taken:

"There are the outright, clear pecuniary or financial interests resulting from owningproperty, holding shares or positions in organisations ... it is not necessary thatcouncillors or staff members hold these interests - they can be held by familymembers, other relatives or friends. The risk comes in the potential for conflict inthe conscious or unconscious recognition of the influence." (ICAC 1991a, p.30).

(h) The Joint Submission (S15) argued:

"Those Departments favouring declarations tended to agree that conflicts of interestof any kind, including those arising from the interests of family members orrelations , should form part of the declaration.

With regard to what exactly should be registered, Departments agreed that conflictsof interest of any kind, including those arising from the interests of family membersor relations, should be included. If only `significant' conflicts are required to beregistered there might be some dispute as to what is considered to be a `significant'conflict. Also, it may be difficult for an officer to determine whether a conflict is`significant'. "

(i) The Bowen Committee considered that it was easier to be exact withrespect to pecuniary interests than non -pecuniary interests. TheCommittee analysed pecuniary interests in terms of assets andliabilities, outside income, gifts, hospitality and sponsored travel(Bowen Committee Report 1979, p.11).

In respect of domestic assets the Committee indicated that it is onlythe significant conflicts of interests which ought to be disclosed:

(l)

"Most systems for the regulation of conflict of interest exclude domestic assets,either because they are unlikely to engender conflicts of interest or becauseregulation of them would be particularly intrusive of privacy . Only in exceptionalcircumstances do they create significant conflicts of interest." (p.11).

The Committee accordingly recommended the exclusion of domesticassets from requirements of disclosure, provided there is no conflict.The Committee also recommended that liabilities be treated in thesame way as assets (p.12).

The CJC (S29) submission on this issue echoed the BowenCommittee's concern for privacy, where the Committee stated thatdespite its recommendation to include family interests inregistration , efforts should be made to limit privacy intrusions. TheCJC suggested:

"Registration of interests may in the case of elected representatives extend toimmediate family members but the right to privacy strictly limits this process.Interests of family members where required should be kept in a confidential registernot available for public perusal. "

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(k) The Commission has noted the recommendation of the CJC in itsReport on a Public Inquiry into Payments made by Land Developers toAldermen and Candidates for Election to the Council of the City ofGold Coast (1991). At p.130 the CJC recommended:

"The Local Government Act and Regulations as they currently stand, do notadequately address the plethora of potential conflict of interest situations whichmay arise regarding the administration of local government in this State. It isrecommended that the Minister for Housing and Local Government conduct areview of the present legislation and direct amendments to be drafted wherenecessary to ensure it is clearly and unequivocally expressed that the pecuniaryinterests of Local Authority members and employees cannot be allowed to conflictwith their duties. Time limits for prosecution action and penalty options shouldalso be reviewed."

(1) Thorne held that registration should include details of:

(i) real property, including the nature of the interest andinformation on all trusts, partnerships and private companies;

(ii) sources of income;

(iii) interest and positions in corporations, statutory authorities etc;

(iv) positions in trade unions, professional or business associations;

(v) loan indebtedness; and

(vi) discretionary disclosures (Thorne 1990, p.238).

ANALYSIS OF EVIDENCE AND ARGUMENTS

5.69 The Commission considers that the right to privacy of officials and theirfamilies in relation to their personal interest, pecuniary and otherwise,must be balanced against the legitimate public interest in seeing that thepersonal interests of officials do not influence the performance of theirofficial duties.

5.70 The principal issues relate to:

(a) the difficulty of defining what is a significant interest;

(b) the extent to which the interests of family members may be regardedas constituting a source of conflict for an official; and

(c) the relevance of non-pecuniary interests.

5.71 In summary, submissions made the following main points:

(a) local government has a particular difficulty with defining relevantnon-pecuniary interests, given the close connections which usuallyexist between Councillors and business activity or interests of manykinds, as well as community and volunteer activity;

(b) It is relatively easy to identify serious conflicts of interests, butextremely difficult to decide where an interest stops beingsignificant. A strict approach through formal definition, rather thanleaving the judgement to the discretion of the involved individual isrequired; and

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(c) Practical common sense is required at the lower margin: any systemwhich tries to achieve watertight control of every possible conflict willinevitably fail.

5.72 The Commission is aware of the current review of the LG Act. It believesthat the review should include those provisions concerned with themanagement of Members' conflicts of interests. Because of this theCommission has not provided a draft Bill to give effect to itsrecommendation that a register based on the MLAs' Register of Members'Interests be established for local government councillors. These provisionsshould be drafted during the review of the relevant sections of the LG Act.

5.73 However, in the event that the LG Act review does not address thismatter, or does not result in the establishment of the register within 12months of the acceptance by the Parliament of this Report'srecommendation, separate provisions establishing the register should thenbe inserted into the LG Act to replace s.14.

5.74 In respect of appointed public officials the Commission has incorporatedprovisions for declaration and registration of conflicts of interests into itsDraft Code of Conduct for Appointed Public Officials (see Appendix F,paras. 8.2 (Conflict of Interest) and 8.3 (Requirements for Declaration onRegistration of a Conflict of Interest).

RECOMMENDATIONS

5.75 The Commission recommends that the classes of interest previouslyrecommended in its Review of the Guidelines for , the Declaration ofRegistrable Interests of Elected Representatives of the Parliament ofQueensland (August 1990 ; 90/Rl) and implemented in the Register ofMember's Interests should be required to be registered by Members ofLocal Authorities and affected appointed public officials . The classes ofsuch registerable interests are:

(i) shareholdings in public and private companies (includingholding companies) indicating the name of the company orcompanies . Where interests are held in a private holdingcompany its investment portfolio, all subsidiary companies andany subsidiary of those companies should be disclosed;

(ii) family and business trusts and nominee companies -

(A) in which a beneficial interest is held, indicating the nameof the trust , the nature of its operation and beneficialinterest, and

(B) in which the official or the official's spouse or dependantare the trustees , indicating the name of the trust, thenature of its operation and the beneficiary of the trust;

interests in real estate, including the nature of the interest andin relation to the real estate , its approximate size, location(suburb or area only) and the purpose for which it is used;

(iv) positions in companies, both public and private and whether thedirectorship is remunerated or not , indicating the name of thecompany and its activities;

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(v) partnerships, indicating the nature of the interests, and theactivities of the partnership;

(vi) liabilities (excluding short-term credit arrangements) indicatingthe nature of the liability and the name of the creditorsconcerned;

(vii) the nature of any bonds, debentures and like investments, thecumulative value of which exceeds $5,000;

(viii) saving or investment accounts, indicating their nature and thename of the bank or other institutions concerned;

the nature of any other assets (including collections, butexcluding household and personal effects) each valued at over$5,000;

(x) the nature of any other substantial sources of income, includingsuch benefits received by a company or trust in which theofficial has an interest as well as by the official personally; and

any other interests where a conflict of interests with anappointed official's public duties could foreseeably arise or beseen to arise.

5.76 The Commission recommends that:

(a) The Local Government Act 1936-1991 should be amended to providefor a public Register of Members' Interests to be established by eachLocal Authority in Queensland with identical requirements to theRegister operating for Members of the Legislative Assembly.

(b) The Shire or Town Clerk should be the Registrar of the relevantRegister of Member's Interests.

(c) Clerks and other senior officials who are responsible to the authorityshould be required to declare their interest confidentially to theCouncil.

(d) Breaches of the provisions of the amended Local Government Act1936-1991 should be dealt with in the first instance by the Ministerfor Local Government.

(e) Members should be required to declare pecuniary interests in anymatter under consideration by the Local Authority. Members shouldbe required to leave the meeting before there is any discussion of amatter in which they have a pecuniary or other personal interest.

Controls and Sanctions

Issue 5.97 Should conflict of interest matters be regulated by a code of conduct, orby the formal discipline approach which governs other forms of official misconduct,or by specific statutory provision?

Issue 5.101 What penalties should apply to a failure to declare a significant conflictof interest in relevant circumstances.

Issue 5.102 What penalties should apply to a failure to register a significantconflict of interest in relevant circumstances?

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5.77 The Issues Paper sought to identify community views on the preferredmeasures for managing sanctions in conflict of interests matters (eg. by aCode of Conduct, or by the formal relevant disciplinary provisions whichgovern other forms of official misconduct, or by specific statutory provision)and what level of penalty should apply to failure to register or declare arelevant interest.

EVIDENCE AND ARGUMENTS

5.78 (a ) " ... all matters governing the conduct of public officials within the LocalGovernment Sector should be set down within the Local Government Act. " (LGAQ

(S16)).

At the Ethics Seminar the Association (T106) argued that byintroducing conflict of interests provisions in the LG Act : " ... thenecessary guarantee of local government decision -making in an honest, accountablemanner and in the public interest [can be] provided to the community. "

(b) "... conflict of interest matters should be regulated by a specific statutory provision,which is clear and unambiguous, and not open to individual interpretation." (CrH Schwabe (S18)).

(c) Aramac Shire Council (S4) supported the formal disciplinaryapproach, together with uniform standards dealing with conflict ofinterests across local government:

W.S.W. Local Government has embraced a code of conduct for staff and members.However, the code is a voluntary arrangement, subject to interpretations of the user.Council favours a formal discipline approach. It is necessary that a commoncriteria in dealing with conflict of interest be standardised right across LocalGovernment . Professional staff move from local authority to local authority andshould be able to expect the same continuity of standard to the conduct of public

officials across Queensland."

(d) "With regard to the actual content of the [Queensland] Code on this matter, oneDepartment suggested that the Code needs to provide more assistance to officers sothat they are able to determine when a conflict of interest has arisen." (JointSubmission (S15)).

On the matter of penalties the Joint Submission (S15) commented: "Arange of penalties for failure to declare should be available, including reprimandand dismissal. "

"There could be a range of penalties for failure to register a significant conflict ofinterest. The Chief Executive might decide on the suitable penalty, depending uponthe nature of the conflict not registered. One Department suggested that for aSenior Executive, this would constitute a breach of contract, and should lead todismissal. Another suggested a public announcement on the matter could be made. "

(e) "Failure to declare a significant conflict of interest in relevant circumstances shouldresult in the same disciplinary action as for any other part of the code. This wouldleave discretion with managers at appropriate levels to take disciplinary action andimpose suitable penalties." (PSMC (S24)).

(f) The LGAQ (S16) provided more detail in connection with penalties:

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"Penalties for offences would be of a substantial monetary level as well as includingdisqualification from elected office or local government employment for anappropriate period of possibly five (5) to seven (7) years.

The Criminal Justice Commission Act makes the Council Clerk responsible forreporting any perceived acts of official misconduct which would include failure ofelected members and relevant officers to declare pecuniary interests."

(g) The ICAC found the New South Wales system of dealing withbreaches of conflict of interests unsatisfactory as allegations ofbreaches were investigated by the Council in question and if theCouncil did decide to prosecute, prosecutions characteristically were... costly, difficult and prolonged." (ICAO 1991a, p.31).

It proposed three options for dealing with breaches of conflict ofinterests provisions:

(i) an independent unit which can receive and investigatecomplaints and refer matters on for action if necessary;

(ii) councils to investigate and refer to another body for action; and

(iii) local government ombudsman to investigate allegations andrefer to another body for action.

(h) The CJC (S29) strongly reiterated its position in relation to penaltiesthat: " ... penalties are a matter for the criminal law or disciplinary proceedingsand should not be set out in any code of conduct."

(i)

(j)

"Penalties could be determined by any Court of Competent Jurisdiction. Appealsagainst any Court decision would be held within the Judicial System."(Bundaberg City Council (Si?)).

In the event that sufficient declaration is not made, Aramac ShireCouncil (S4), in the local government context, submitted: "Any decisionsmade by a Council which subsequently is proven to have been effected should havethe resolution voided. "

On the subject of penalties for not registering a conflict of interests,the Council stated:

"In the case of elected representatives disqualification from office for the balance ofthe current term plus two full triennial terms of Council. Also, any party aggrievedby a decision of Council that was affected by a failure to declare a significantinterest should have a right of damages action against the individual Councillor(s)who failed to declare the interest.

In the case of professional staff the penalties should include cancellation ofmembership to any respective professional body for two years, termination ofemployment, suspension of holding any executive position in Local Government forthe balance of the current term plus two full triennial terms of Local Government.

Also, any party aggrieved by a decision of Council that was affected by a failure todeclare a significant interest should have a right of damages action against theindividual member of staff who failed to declare the interest."

(k) In most Canadian and United States federal administrations , conflictof interests matters are regulated by specific statutory provision.When introducing the Conflicts of Interest of Members of the Assemblyand the Executive Council Bill, the Attorney-General of Ontariostated:

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"The aim of the legislation on this subject is primarily to set standards by whichmembers can measure their conduct (and be measured) and from which they cangain assurance that compliance will protect their integrity. From this perspective,the intent of the law is facilitative; that is, to assist members in the performance oftheir duties and obligations." (Ontario Commission on Conflict of Interest1990, p.1).

ANALYSIS OF EVIDENCE AND ARGUMENTS

5.79 The question of sanctions for failure to declare or register a relevantinterest raises a number of difficulties, not all of which were addressed bysubmissions and evidence. These include the fact that the QueenslandCriminal Code already prohibits public officials from having a privateinterest in a contract involving their department, or having businessinterests which coincide with any judicial or administrative duties whichform part of their employment in the Service (s.89-90).

5.80 Most of the submissions which addressed the question of controls andsanctions saw little difficulty with punitive sanctions, even disqualificationfrom office for a period of years, particularly in the case of Local AuthorityMembers or professional staff who seriously abuse their positions.

5.81 There is an evident need to provide a graduated response for failure todeclare an interest when required. This is because not all breaches are ofthe same order of seriousness, as many arise from ignorance orinexperience.

5.82 The Commission notes that criminal or serious disciplinary sanctionsgenerally have been found to be counter-productive in a public servicesetting. This may result in managers and supervisors being unwilling toinvoke the sanction provided (see, for discussion of Canadian experience,Langford, 1990 Part I).

5.83 A distinction needs to be made between sensible management objectivesfor conflict of interests provisions (eg. to deal with a fortuitous situationwhich has arisen outside the official's control) and public interestobjectives (eg. to deal with a situation in which an official has knowinglyfailed to deal as required with a significant conflict).

5.84 In view of the wide range of situations and factors which might give rise tosanctions, it is likely to be seen as unwise, and would probably provelargely ineffective, if legislation or a Code of Conduct with the force oflegislation were to attempt to do more than set general requirements andprovide that failure to declare a significant conflict of interests in relevantcircumstances will constitute an actionable breach of ethics.

5.85 The present approach of sanctions is strongly supported by the CJC, andits extension and development was sought by the LGAQ. Together withthe existing disciplinary provisions which attach to breaches of theQueensland Code, this approach appears to be appropriate in principle, tohave the support of the major stakeholders, and to provide anappropriately graduated range of responses to breaches.

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5.86 Recognising the distinction between the requirements of the law and ofethics, this Report makes no recommendation for change to the CriminalCode in relation to serious breaches of trust. However, it raises thequestion of whether the scope of s.89 and s.90 might not usefully bebroadened to cover explicitly public officials who are not public servants.

5.87 Evidence before the Commission suggests that the provisions of the LG Actare rarely if ever used to prosecute those who fail to declare an interest asrequired. This may be a consequence, at least in part, of Town and ShireClerks (the officials in a position to bring breaches of the provisions tonotice) who are themselves directly employed by individual Councils, beingunderstandably reluctant to risk their careers or working relationshipswith other councillors. It would appear necessary that if this mechanismis to work, Clerks would need to be provided with protection under the Act,akin to the protection recommended for whistleblowers.

5.88 In view of the current review of the LG Act, and in the face of the evidencethat its provisions in relation to conflicts of interests are not used, it isappropriate that the effectiveness of the LG Act's provision dealing withserious offences in this area be reviewed.

5.89 At the minimum a Code of Conduct should provide advice to managers onhow to distinguish between major breaches which should lead to criminalprosecution and the less significant breaches for which disciplinary orother action is appropriate.

5.90 In relation to conflicts of interests, a Code of Conduct's most effective roleis to provide information, examples, and direction on how to avoid orresolve unacceptable conflicts between private interests and public duty.A code should include a set of criteria, drawn from contemporarycommunity values and expectations, which identify forms of unacceptableconflict.

5.91 A code may also provide for formal sanctions in the case of minor breacheslinked to the existing disciplinary provisions of the agency or organisation,thereby providing a graduated range of responses to breaches which arenot sufficiently serious to warrant action under the Criminal Code, the LGAct or the CJ Act.

5.92 The Commission is of the view that the current regime of sanctions forconflicts of interests attached to the Queensland Code, the Criminal Codeand the CJ Act are, by and large, adequate to address most problems. TheCommission is however, concerned about identification and managementof conflicts of interests by Members of Local Authorities.

RECOMMENDATION

5.93 The Commission recommends that failure by a public official to identify arelevant conflict of interests be subject to:

(a) Criminal Code provisions in relation to major breaches;

(b) provisions in a Code of Conduct which enables the use of existingdisciplinary procedures in relation to particular (minor) breaches; and

(c) the provisions of the Criminal Justice Act 1989-1991 in relation toserious official misconduct.

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5.94 This recommendation is implemented in the draft Code of Conduct forAppointed Public Officials (see Appendix F) in Part 11 (Breaches).

5.95 The Commission also recommends that the Local Government Act1936-1991 requiring declaration of conflicts of interests be reviewed forconsistency with the proposals of this Report and to provide Town andShire Clerks with effective protection.

5.96 The Commission also recommends that the Criminal Code provisions inrespect of conflicts of interests of public officials be reviewed and amendedso as to apply to all public sector officials.

Management of Conflicts of Interests

Issue 5. 106 Should conflict of interests on the part of public servants , officials andelected Local Authority Members and Local Authority employees be regulated by:

(a) prohibition of conflict of interests, requiring either divestment of the relevantinterest, re-assignment of the duties of the officer, or the resignation of theofficer from his or her official position; or

(b) a combination of the above approaches?

Issue 5.107 In relation specifically to private pecuniary interests, would it beacceptable to attempt to resolve a specific instance of a significant conflict ofinterest by assigning the pecuniary interest involved to the management of a trusteein a "blind trust" arrangement for the duration of the official's employment orappointment?

5.97 The Queensland Code provides little guidance as to the appropriate courseof action to be taken subsequent to disclosure of a conflict by an appointedpublic official. Section 3.1 leaves resolution of such conflicts very much upto the relevant CEO:

"On receipt of a disclosure from an officer, the Chief Executive will determine theextent of any conflict of interests and direct the action required to resolve theconflict. Failure to comply with such direction may make the officer liable todisciplinary action under the Act.

At any time, an officer who is unsure whether a conflict of interests exists withofficial duties should consult any relevant departmental guidelines or, whereappropriate, seek a direction from the Chief Executive. " (Queensland Code, p.4).

5.98 The Queensland Code does not provide for the usual methods of handlingconflicts of interests through declaration and registration, the twomechanisms addressed earlier in this Report, or by any other approach,such as prohibition, mandatory divestment, "blind trust" arrangements, orre-assignment of the official to non-conflicting duties.

EVIDENCE AND ARGUMENTS

5.99 (a) "... registration or declaration of interests are the most appropriate mechanisms forregulating conflicts of interests on the part of public servants."

and

"Some Departments expressed the view that reassignment of duties might serve as areasonable solution in some cases of conflict of interest." (Joint Submission(S15)).

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(b) The CJC ( S29) proposed:

"Declaration of potential conflict of interest is of itself not sufficient justification forautomatic divestment, re-assignment or resignation. The codified obligationsshould be those of declarations and recording of any potential conflict; it is thenappropriate for each case to be resolved according to particular circumstances."

"Caution should be exercised in the use of divestment or `blind trust' requirements,which may discourage those with independent attitudes, energy and initiative fromseeking public office."

(c) "Divestment ... may have a place in a limited number of situations. It is, however,a rather drastic procedure which may have as a principal effect the determent ofsuccessful and energetic individuals from seeking public office." (CommissionerKelly (T99)).

(d) The Bowen Committee believed that divestment was appropriate onlyfor certain types of interest:

"Where there is so close an association between the interests and the officeholder'sresponsibilities that the other options of disclosure and avoidance are notappropriate... " (1979, p.41).

(e) On the issue of whether a "blind trust" could be established toadminister pecuniary interests, the Joint Submission (S15) advisedthat most departments:

... do not believe that divestment of pecuniary interests and the use of blind trustsare viable alternatives to registration and declaration. Blind trusts are consideredto be artificial and unrealistic arrangements. The public perception would be thatthe interest of the trustee and the beneficiary could not be separated. It could not beproven that the trustee and the beneficiary did not discuss the trust investments."

(f) The Bowen Committee identified a compromise version of the blindtrust under which the trustee regularly renders accounts as to trustassets (Bowen Committee Report 1979, p.41). Such a mechanism isused in some other jurisdictions (eg. in the United States at thefederal level).

ANALYSIS OF EVIDENCE AND ARGUMENTS

5.100 Prohibition is, in practice, a declaration that specified officers or categoriesof officers are required to avoid holding certain identified interests orclasses of interest.

5.101 The Queensland Criminal Code carries in effect a prohibition againstofficers having a personal pecuniary interest in the business dealings oftheir departments.

5.102 The traditional means of managing conflicts of interests has been byrequiring divestment of the personal interest or reassignment of theofficial to other duties, once a conflict has come to notice.

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5.103 Divestment requires the disposal of the personal interest which constitutesa conflict of interests for the duration of the duties or assignmentinvolved. This may be difficult if not impossible to achieve withoutpecuniary loss to the individual, and may raise the question ofcompensation for any such loss. Where it is seen as unreasonable torequire the divestment of an already-held interest, re-assignment of dutiesis usually required to avoid the conflict.

5.104 The disqualification option avoids a conflict by transferring the officialfrom the office or from the duties which present the conflict. As noted bythe Bowen Committee, this option assumes that personnel areinterchangeable and an authority figure to manage the change exists(Bowen Committee Report 1979, p.41). In practice, there is littledifference between disqualification and the prohibitionlre-assignmentcourse of action.

5.105 It appears that officials are more familiar with, and more ready to accept,disqualification than divestment.

5.106 The Issues Paper (para.5.107) also asked whether it would be acceptable toattempt to resolve a specific instance of a significant conflict of interest byassigning the pecuniary interest involved to the management of a trusteein a "blind trust" arrangement for the duration of the official's employmentor appointment, or by "authorisation".

5.107 Under a "blind trust", the official is required to delegate theadministration of a conflicting pecuniary interest to a trustee who mustnot consult the official and who may deal with the interest and evendispose of it.

5.108 The blind trust mechanism is not normally acceptable for there is noeffective way to render the trust truly blind. Unless the assets could bediversified by the trustee, and this has a number of practical difficulties,the official would know that the trustee retained the original assets.

5.109 The major disadvantage of the blind trust to the owner of the asset is thatthe trustee may not have the same standard of commercial acumen as theowner, thereby exposing the official to potential loss. Accordingly, theBowen Committee did not believe that blind trusts were a: " ... satisfactoryalternative to complete divestment when sensitive assets are involved." (1979, p.41).

5.110 The authorisation option involves the formal disclosure of interests byeither registration or declaration, following which permission is granted bysuperiors or colleagues for the interest to be retained whilst the officialperforms the official duties in question. Under this arrangement theconflict is identified so that it may be managed appropriately.

RECOMMENDATIONS

5.111 The Commission recommends that:

(a) the Code of Conduct should empower management to take any actionnecessary to resolve an unacceptable conflict including re-assignmentof the official concerned to other duties at an equivalent level;

(b) the Code of Conduct should provide generally that a Chief Executivemay:

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(i) declare specified classes of interest which may not be held byspecified categories of official, or by occupants of particularpositions; or

(ii) require an official to dispose of an unacceptable interest.

5.112 This recommendation is implemented in the draft Code of Conduct forAppointed Public Officials (Appendix F) in sub-sections 8.3.1 (Declaration)and 8.3.2 (Registration).

Gifts and Other Forms of Benefit

Issue 5. 127 Are the provisions of the Queensland Code adequate for dealing withall situations involving the offer and acceptance of giftts and other forms of benefit?If so, how and to what extent? If not, should they be extended or reduced?

Issue 5. 128 What, if anything, should be done about the variations that potentiallyexist across departments and agencies in relation to acceptance of gifts /benefits?Should nothing be done, or could the matter be dealt with by the code in generalterms, as in the New Zealand Code?

Issue 5.134 Are the provisions of the Queensland Code relating to subsidised traveland hospitality [or acceptance] of benefit adequate?

Issue 5.135 What, if anything, should be done about the variations that potentiallyexist across departments and agencies in relation to acceptance of subsidised traveland hospitality?

5.113 Section 3.2 and 3.3 of the Queensland Code provide:

"3.2 Acceptance of Benefits

Officers should -

as a general principle, not solicit or receive any benefit (other than providedfor as part of their terms and conditions of employment) in respect of servicesperformed, whether during working hours or not, in connection with theirduties; and

avoid situations in which the acceptance of a benefit or potential benefitcould give even the appearance of a conflict of interest with their officialduties.

Where an officer's duties require the acceptance of a benefit, and the benefit isaccepted, the fact of its acceptance should be referred to the Chief Executive fordetermination as to whether the benefit should be returned, or accepted on apermanent basis. Where permanently accepted, the Chief Executive may specify theconditions for such acceptance.

The Chief Executive may authorise an officer to accept free travel or hospitalitywhere the Chief Executive is satisfied that -

acceptance does not constitute conflict of interest; and

where acceptance is necessary for the proper conduct of official duties.

Where acceptance of such travel or hospitality could, in the opinion of the ChiefExecutive, lead to real or apparent conflict of interest, the Chief Executive willdetermine the appropriate action to be taken.

Chief Executives may issue directions in relation to circumstances in which officersgenerally, or certain classes of officers, may accept specific benefits withoutreference to the Chief Executive and to impose conditions relating to their retentionand disposal. Where such directions are issued, the Chief Executive should besatisfied that no real or apparent conflict of interest is likely to arise in the absenceof specific reference.

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3.3 Reporting Offer of Benefits

3.3 An officer should immediately report to the Chief Executive any circumstanceswhere an offer of a benefit is made, regardless of whether it is accepted or not, if theofficer feels that such circumstances involve an attempt to induce favouredtreatment. "

5.114 The advice provided in these sections appears to be directed at threedifferent kinds of activity:

(a) the soliciting of additional rewards, of whatever kind, for theperformance (or non-performance) of services or functions which areproperly a part of an officer's official duties;

(b) the acceptance of gifts or other benefits in connection with theperformance of the duties of an officer's position; and

(c) dealing with the improper offer of a benefit to "induce favouredtreatment".

5.115 Gifts and benefits (for example free or subsidised travel, significanthospitality, accommodation or entertainment) may be accepted, inaccordance with the Code, if the CEO agrees and is satisfied that a conflictof interests would not arise.

5.116 CEOs are empowered by the Code to issue local policy and proceduraldirectives for acceptance and retention of gifts, and to delegate authorityfor such approval.

EVIDENCE AND ARGUMENTS

5.117 (a) "The current Code of Conduct is not adequate when addressing the issue of giftsand other benefits. This matter should be linked to the guiding principle inrelation to public confidence. In other words, it is unreasonable to expect all publicofficials to declare all gifts which are received in the course of their duty. I referparticularly to examples where it is the accepted culture to `shower' official guestswith small gifts." (PSMC (S24)).

(b) The subject of offer and/or receipt of benefits is dealt with in theWater Resources Commission Code forwarded by the Commissioner(S3):

'An officer who is offered or who receives a benefit as a consequence of or duringengagement in, official duties will disclose such offer or receipt to the Commissionerof Water Resources, who shall determine the appropriate course of action.

Benefit includes gift, gratuity, remuneration, allowance, fee, subsidy,consideration, free service, hospitality, free travel, and free

entertainment.

Minor benefits such as once off lunches , marketing type gifts eg.calendars , biros, desk packs etc ., and generally gifts with a value of nogreater than $10.00 are specifically excluded from this policy."

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(c) Public Finance Standard (PFS) 625 provides that a member, officer oremployee of a department or statutory body shall not solicit or acceptany benefit or gift of money from persons other than the official'semployer in connection with the official's function or duties. PFS625(4) provides that a member, officer or employee may accept abenefit, not being a benefit covered by subsection (3), in the course ofnormal entertainment and hospitality, and minor presentations of"no significance or lasting real value", and provides that in all othercases a "reportable gift" declaration shall be made.

PFS 625(4) defines reportable gifts as any gift of property, travel,entertainment, hospitality or any other benefit which is notconsistent with industry/country norms and includes in any casevaluable items of property whether of a personal nature or otherwise.

(d) In connection with subsidised travel and hospitality the JointSubmission (S15) stated:

"The provisions in the Queensland Code relating to subsidised travel andhospitality were also considered adequate by most Departments. One Departmentsuggested that Public Finance Standard 625 (4) should be incorporated into thecode so that no confusion can arise between it and the existing Code.

... because of the diversity of the functions of the public service and consequently awide variation in opportunity to receive minor or substantial gifts, it is not reallypossible to lay down rules which apply throughout the public service in relation tothe acceptance of gifts. It is best to preserve the right of the Chief Executive to usehis or, her discretion with regard to the ': acceptance of gifts by officers. Cases need tobe considered on their merits. Cultural questions may be relevant here too, as itmay be offensive to refuse a gift within certain cultures , and to do so may affectfuture relationships with another country. "

ANALYSIS OF EVIDENCE AND ARGUMENTS

5.118 There is no dispute that public officials ought not to solicit any benefitother than their salary and allowance entitlements for, or in connectionwith, the performance of their official duties.

5.119 Most public sector Codes of Conduct have provisions which deal withacceptance of gifts, in the form of valuable items, sponsored travel,hospitality, concessions or discounts for goods or services and non-bonafide loans. At issue is the integrity of the public service, and publicconfidence in the service which relies on its perceived integrity.

5.120 The submissions before the Commission generally appear to support theproposition that some benefits, (what some other jurisdictions call "normalcustomary hospitality"), might be acceptable, subject to any specificrequirements of a CEO which reflect the particular circumstances of adepartment.

5.121 On this point the Issues Paper (para.5.125) observed that the QueenslandCode requires different treatment for different forms of benefit, anddifferent circumstances. Chief Executives are able to issue additionalspecific local directions for staff of their departments (Queensland Codes.1, s.3.1 and s.3.2). Thus there may be considerable variation in practicesacross the administration, and resulting public uncertainty about what isan acceptable standard of conduct.

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5.122 As a consequence any approach adopted in a new Code of Conduct needs tobe sensitive to the varying approaches perceived as necessary by differentorganisations, and perhaps within the same organisation at differentlevels, while still setting a minimum standard which recognises that theCriminal Code prohibits secret commissions.

5.123 The Commission is of the view that acceptance by an official of gifts orbenefits should in general be prohibited, except where the relevant CEOhas given approval and direction as to the appropriate disposal of the giftor benefit. The Code of Conduct should provide appropriate reference tothe various relevant provisions of the Criminal Code, the CJ Act and thePFSs.

5.124 One example of a benefit which should be accepted only after a ruling bythe relevant CEO is hospitality in the form of airline upgrades. MostCEOs in most circumstances will conclude that an upgrade for a publicofficial is not an attempt to influence an official decision but is more likelythe result of an airline policy on seat allocation. If a CEO is concernedthat an official is working in an area where improper influence or theperception of influence may be an issue, instructions should be issued byCEOs to officials to decline such benefits.

RECOMMENDATION

5.125 The Commission recommends that the Code of Conduct should providethat:

(a) An official shall not solicit or accept for personal benefit, any form ofbenefit whatsoever (eg. gifts, loans, discounts , considerations , etc.) inconnection with the performance of official duties, except as may beprovided:

(i) as part of their determined entitlements in accordance withtheir terms and conditions of employment; or

(ii) by fellow employees on the official's resignation , retirement,transfer or similar occasions; or

(iii) as authorised by their Chief Executive.

(b) A Chief Executive may authorise an official or officials of an agencyto accept a gift or benefit in connection with the performance ofofficial duties, in an official capacity on behalf of the agency , providedthat the gift becomes the property of the agency to be retained ordisposed of in accordance with procedures authorised by the ChiefExecutive.

(c) Chief Executives may authorise an official of the agency to purchasethe item from the agency at the price determined by an independentprofessional valuation, the cost of which is to be met by the officialconcerned.

(d) Gifts or benefits of nominal value and expressions of normalcustomary hospitality may be dealt with as determined by a ChiefExecutive.

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(e) A Chief Executive may authorise an official to accept, on behalf of theagency, any benefit (for example , free or subsidised transportation;hospitality and accommodation, the use of equipment or resourcesincluding human resources , or any other gift, benefit or form ofassistance) provided that the Chief Executive is satisfied in eachinstance that:

(i) the benefit will not bring the agency's integrity into question;and

(ii) acceptance of the benefit is necessary, or alternatively is in theagency's interests and in the public interest.

5.126 This recommendation is implemented in the draft Code of Conduct forAppointed Public Officials (Appendix F) in sub-section 8.1.1 (Acceptance ofGifts or Benefits) and in the draft Code of Conduct for ElectedRepresentatives (Appendix G) in section 6.5 (Acceptance of Gifts orBenefits).

Use of Official Influence to Secure Advantage , Promotion or Transfer

Issue 5.143 Is the approach taken by the Queensland Code adequate in relation tothe use of (improper) official influence to secure advantage or benefit, in relation to:

(a) promotion, transfer, appointment, tenure or related personnel matters; or

(b) financial dealings between officials?

If not, what approach would be more appropriate or effective?

5.127 Section 3.4 of the Queensland Code provides:

"3.4 Influence to Secure Advantage

Officers should -

not seek the improper influence or interest of any person to obtain promotion,transfer or other advantage; and

manage their personal finances so as not to come under pecuniary obligationto their subordinates."

5.128 The Fitzgerald Report dealt with this issue directly:

"Cabinet Ministers should not be concerned with public service appointments,promotions, transfers and discipline, other than those of Chief Executives, to whichspecial considerations apply. A Minister's legitimate concern with personnel is tosee that honest and efficient policies and systems are designed and fairlyimplemented.

The more important the office, the more imperative that appointments be madewith scrupulous propriety. There will obviously be diversity and competing claimsamong those who are eligible for employment, but it would be wrong for those whoknow politicians and senior bureaucrats to be preferred, while a pool of talent isignored or disqualified for no good reason.

Inappropriate appointments, particularly to important positions, are verydisruptive of public administration, and increase the exposure of thedecision-making process to the risk of improper influences.

Detailed decisions on personnel should be left to suitable people to whom authorityhas been delegated, and that authority should be exercised impartially and openly."(Fitzgerald Report 1989, p.131).

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5.129 It has already been noted elsewhere in this Report that the PSMC hasissued a Public Sector Management Standard for Recruitment andSelection. As its first principle this Standard states: "Equity and merit are toform the basis of all phases of the recruitment and selection process." (1991, p.2).Nevertheless, since the Standard has been issued there has beencontinuing criticism that "cronyism" still flourishes in Queensland publicadministration. Public allegations of "cronyism" have been made recentlyby the Leader of the Opposition, and others.

5.130 The Issues Paper noted that Ministers should and need to have confidencein their CEOs and statutory heads. On the other hand, the extent towhich a Minister may legitimately be involved in appointments below headof agency level is another matter. The Commission has already noted thats.14 of the Constitution Act 1867-1988 requires that "senior" appointmentscan only be made with the authority of the Governor in Council. TheCommission has made known its view on this matter in its Report on theReview of the Elections Act 1983-1991 and Related Matters in respect of theappointment of polling officials.

5.131 As with appointments at head of agency level, all appointments should becarried out according to equity and merit, established by means of a bonafide process and considerations relevant to the positions at issue.

EVIDENCE AND ARGUMENTS

5.132 (a) "Some Departments considered the current provision in the Code in relation to theuse of improper official influence to secure advantage to be adequate to cover allappropriate situations. They pointed out that the Public Sector ManagementStandard for Recruitment and Selection offers support for the Code provisions.

Some Departments, however, suggested that the Code at Section 3.4 needschanging. One Department suggested that the first point in 3.4 should bebroadened to include 'appointment, tenure or related personnel matters, and thatthe second point should be about `financial dealings between officials'.

Another Department argued that the statement on pecuniary obligation (point twoin Section 3.4) is inconsequential and irrelevant and should be removed." (JointSubmission (S15)).

ANALYSIS OF EVIDENCE AND ARGUMENTS

5.133 The provisions in the Queensland Code in relation to improper use ofinfluence attracted little public comment. This may be because theexisting code is believed to provide sufficient guidance or because there isno real confidence that a code can deal with such problems as may arise.

5.134 To a great extent, the problem of improper influence is addressed by otherprovisions or structures, for example, receipt of gifts, merit-basedadvancement, lawful and unlawful instructions, and the appealsmechanism. A major aspect of this problem appears to be simply that ofignorance - over time customs have developed which some people, in theabsence of specific and available advice to the contrary, accept as normal(for general discussion of this aspect in the recent Queensland context, seeCoaldrake (1989) and Prasser and Wear (1990) in particular).

5.135 To the extent that a code addresses the issue explicitly, declares theprinciples on which public officials ought to operate, and re-establishes theground rules, it will have fulfilled its role. Achieving change in this areawill rely on education and the willingness of all officials to practise anddefend those principles.

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5.136 The Commission believes that the provisions of the Queensland Codedealing with the use of official influence should be extended to place theonus on officers making decisions to disregard attempts by other officials,appointed or elected, who seek improperly to influence their decisions.This requirement should be in addition to the more traditional embargo onofficers using influence for their private advantage.

5.137 Inclusion of this matter in a Code of Conduct is desirable also becausedisciplinary sanctions would be appropriate for significant breaches byappointed officials, given the seriousness of the issues involved.

5.138 Where an elected representative seeks to exercise improper influence inpublic service matters or outside their sphere of proper responsibility, thesituation should be dealt with by the relevant CEO or agency head, indiscussion with the Premier if necessary.

5.139 The Commission believes that the Queensland Code's advice in relation topersonal pecuniary obligation is no longer relevant to a Code of Conduct ofthe kind being recommended.

RECOMMENDATION

5.140 The Commission recommends that the Code of Conduct should con thefollowing provisions to replace the existmg° provisions dealing with the useof personal influence for private gain:

(a) A public official shall not use, nor seek to obtain, the improperinfluence of any person to obtain appointment, promotion,advancement, transfer or any other advantage , either personally oron behalf of another, or to affect the proper outcome of any procedureestablished under legislation for the management and administrationof a unit of the public sector;

(b) A public official responsible for the making of a decision underlegislation governing any aspect of the man ement oradministration of a unit of the public sector, or for a recommendationfor the purpose of making such a decision , shall not take account ofany attempt by any person whatsoever to influence the making ofthat decision unless the involvement of that person is required by oris consistent with the provisions of the relevant legislation.

5.141 This recommendation is implemented in the draft Code of Conduct forAppointed Public Officials (Appendix F) in sub-section 8.1.6 (Use ofPolitical and Other Influence to Secure Advantage) and in the draft Codeof Conduct for Elected Representatives (Appendix G) in section 6.1(Improper Use of Political and Other Influence.

Political Activity

Issue 5.154

(a) Should officials be required to resign or take leave from the service in whichthey are employed or appointed in order to contest an election forParliamentary office?

(b) Should reappointment of an unsuccessfid candidate be mandatory orconditional ? If conditional, what should be the conditions for reappointment?

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(c) Should ChiefExecutives be able to:

(i) transfer an officer (by consent or compulsorily) on grounds of"(inappropriate) political activity" to another position or agency?

(ii) should such a power be subject to appeal by the officer affected?

Issue 5. 155 Should any restrictions apply to activity in connection with:

(a) industrial unions;

(b) professional associations;

(c) sectional interest groups?

Issue 5.156 Are the provisions of the Queensland Code adequate in relation topolitical activity? If not, how can those provisions be improved?

5.142 At s.3.5 the Queensland Code provides:

"Officers have the same right as any other citizen to freedom of politicalassociation. However, any political activity by officers should clearly be conductedin a private capacity.

For officers engaged in political activity, such as holding office in a party ormembership of a party committee, care should be exercised that a conflict of interestdoes not arise with official duties. "

5.143 The expectation that the public sector and the officials appointed to it willbehave in a politically non-partisan way and be capable of diligent andloyal service to whatever government may be elected has traditionally beenregarded as one of the corner-stones of public service professionalism.

5.144 The Issues Paper (para.5.145) observed that concern about the ethicalstandards of public officials also extends to the potential that exists, in thevery nature of public employment, for them to be affected by party-politicalconsiderations in a variety of ways. Such conflicts of loyalties mightinvolve, for example, promoting the policies of a particular political partyor group, frustrating the policies of a government with which the officialdisagrees, or advancing the territorial interests of a department or a groupof officers in preference to the Government's objectives or the wider publicinterest.

5.145 The Commission has noted recent amendments to the LG Act (s.7(lA))which entitle an employee to up to two months leave of absence for thepurpose of contesting an election. During this leave of absence the localgovernment employee may exercise any accrued leave with salary or wages.

EVIDENCE AND ARGUMENTS

5.146 (a) The Joint Submission (S15) indicated that, overall, the Service wascontent with the existing provisions:

"Most Departments considered the provisions of the Queensland Code of Conduct inrelation to political activity to be adequate. The current provisions are acceptablebecause, by affirming the rights of public servants to political participation andalso stating that such political activity should be conducted in a private capacity,they afford protection of the rights of individuals as well as the agency. It is alsoappropriate that these provisions reflect the belief, widely-held in the community,that public servants should not appear to be politically partisan.

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The warning in the Code with regard to the potential for conflict of interest wasconsidered to be an important provision. One Department suggested that thisshould be expanded to include guidelines and/or formal processes for dealing withany emerging conflict.

One Department suggested that, since union membersh ip is a requirement of publicsector employment, it would be appropriate to make rerences to that requirementin the Code.

It is important that the Code does not apply undue restrictions to legitimatepolitical and union activity on the part of public servants."

On the matter of resignation or leave, the Joint Submission (S15)stated:

"There was general support for the proposal that public servants be required to takeleave from the service in order to contest an election for Parliamentary office. Thiswould have the effect of distancing the agency from the officer at a time when theofficer may engage in high-profile, very public political activity. It may also beeasier to avoid a conflict of interest if the officer is away from normal duties. Itshould be noted that Departments did not generally support the requirement thatofficers should resign from the service for the purpose of contesting election toParliament or a Council. "

In respect of CEOs transferring officers, the Joint Submission stated:

"Many Departments indicated support for the proposal that Chief Executivesshould be able to transfer officers on grounds of inappropriate political activity.`Inappropriate' political activity would of course require clear definition if such aprovision was to be included in the Code. Also, the rights of individual officers asprotected by law would need to be adequately safeguarded. Should such a power begranted to Chief Executives, it was considered vital that a suitable appealmechanism should be in place for use by the officer affected. There is a danger thatany compulsory transfer could be seen as having overtones of victimization."

(b) "To be entitled to take leave to contest an election with a resignation in case ofsuccess in such election seems to safeguard the democratic rights of the individualand the interest of the office. With this solution there would be no question as tothe mandatory reappointment.

The transfer for inappropriate political activity alone should not be permissible. If,however, relevant parts of these activities violate the code of conduct, not as apolitical activity, then such transfer could be justified. In any case there must be aright of appeal." (Cr H Schwabe (S18)).

(c) "It would be appropriate to grant leave to a person seeking election forparliamentary office. If unsuccessful they would return to their previous position.Re-appointment of persons who resign to seek election for parliamentary officeshould be in accordance with the usual selection methods." (PSMC (S24)).

(d) "The ability of Chief Executives to discipline an officer for political activity bytransfer, fine or dismissal, should be constrained with the right to appeal by theofficer affected, with a relevant body (trade union, association, etc) being arecognised participant in the appeal where requested by the officer." (AMA (S26)).

(e) On the matter of officials' union activities, the Joint Submission (S 15)stated:

"Departments did not on the whole support the inclusion in the Code of restrictionsin connection with the activity of officers in matters related to industrial unions,professional associations, or sectional interest groups.

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With regard to union activity, it is noted that where employees engaged under Stateawards (and this would include public servants) participate in union activity, theyare afforded statutory protection under the provisions of Section 13.107 of theIndustrial Relations Act 1990.

While Departments believed that as a principle there should be no restrictions onthese activities of public servants, some held the view that in the event that suchactivities interfere with the satisfactory performance of an officer's duties, somerestriction might need to apply. An officer seeking election to an official position ina union or association, for example, might be given the opportunity to take leave inorder to contest the election. In this case, the same conditions could apply as thoseset for officers seeking election to Parliament.

Where a conflict of interest arises, this might be declared as would a conflictinvolving pecuniary interests. If a professional association seeks financial or othersubstantive assistance from the officer's agency, for example, the officer shoulddeclare an interest and not be involved in processing the request."

ANALYSIS OF EVIDENCE AND ARGUMENTS

5.147 Party-political activity by public servants is a very complex and difficultmatter, raising issues of administrative ethics at many levels: publiccomment, politicisation, professionalism, access to and use of officialinformation, conflicts of interests, and basic issues of the properrelationship of officials to politics. Some difficult balancing of interests islikely to be needed in relation to such matters.

5.148 In Australia there is no tradition of prohibiting political activity byofficials (unlike Canada at least until recently and Britain in thenineteenth century). On the other hand there is real concern overpolitically partisan activity by officials in their official capacities.

5.149 Party-political activity by public servants and appointed officials,including seeking election to public office, is the subject of widely-varyingtreatment in Westminster-derived political systems. For example,Canada, at the federal level, prohibits many forms of public politicalactivity by officials (Kernaghan 1983b, p.2). Such activities are permittedin Britain and Australia, provided public conflict between the individual'sprivate political ideals and official responsibilities does not arise, andprovided too the politically non-partisan character of the service is notbrought into question.

5.150 This is also the approach taken by the Queensland Code (s.3.5), whichrequires any political activity to be "... clearly ... conducted in a private capacity".It is for this reason that officers are required to take leave or resign tocontest an election. In practice, of course, it would be virtually impossiblefor high-level and well-known officials to stand for elective office withoutcalling into public question their willingness and ability to serve whatevergovernment may be elected with the required degree of professionalobjectivity and independence.

5.151 Where the "private-capacity" political activities of officials give rise to suchdoubts, many systems provide, formally or otherwise, for an unsuccessfulcandidate to be transferred into non-sensitive areas of administration ontheir return to post-election public employment especially where agovernment constituted by a political party different from that of theofficial has been returned.

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5.152 In practice it may well be a difficult line to draw. The absence ofappropriate guidelines and/or formal processes for dealing with anemerging conflict (by, for example, transferring the officer to non-sensitiveduties) may expose an official involved in political activity and the CEO tocriticism on the grounds of bias or real or potential conflict of interests.

5.153 The Issues Paper (para.5.153) also noted that the Queensland Code doesnot deal with union, professional or sectional interest group activity. Thesame concerns as attached to political activity may be relevant to suchactivities.

5.154 The Commission recognises that a distinction needs to be made here. Inthe view of the Commission private political activity by officials which doesnot impinge upon their public duties is not a matter for regulation. It iswhen party political allegiance brings into question an official's objectivity,professionalism or integrity that action becomes necessary.

5.155 There is general support for an approach that seeks to distance the publicservice from partisan political activity by officials. Submissions generallysupported the notion that remedial action, whether through leave takingor transfer, ought to be available.

5.156 As present the Queensland Code does not make clear what actions areopen to CEOs where an official fails to ensure that a conflict of interestsdoes not arise, or that the political activity is conducted in a wholly privatecapacity. The Commission considers the code should remedy thisinadequacy.

5.157 There are two main options available to deal with the problem of campaigncandidature:

(a) mandatory leave without pay to conduct a campaign for elected office(campaign leave); and

(b) authority for the CEOs to re-assign an officer to other duties toresolve a conflict between an officer's political activity and officialduties.

5.158 The two options ought to be available to be applied selectively incombination. The status of the official within the organisation would be aconsideration.

5.159 There was no support for mandatory resignation. Indeed, one submissionnoted that mandatory resignation, followed by the right to automaticreappointment if unsuccessful, did little if anything to preserve thenon-partisan character of the service. Mandatory resignation coupled withdiscretionary reappointment is generally objected to as potentiallydiscriminatory and likely to dissuade officials from exercising their rightsas citizens to seek elected office. The Commission accepts this view.

5.160 The Commission has examined the provisions of s.7 of the LG Act whichrelate to this matter and believes they should apply to all appointed publicofficials, whether contesting federal, State or local government elections.It agrees that appointed public officials who nominate for election shouldbe required to take leave without pay for the period between theirnomination and such time as it is clear that they have been successful orunsuccessful. It also agrees that the official should be able to exercise anyaccrued right to leave of absence with salary or wages during the period.

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RECOMMENDATION

5.161 The Commission recommends that the Code of Conduct should providethat:

(a) officers seeking election shall be required to take leave without pay(campaign leave) from the time of nomination for election up to thedate of the election until such time as it is clear that they have beensuccessful or unsuccessful. Accrued leave entitlements should beavailable during this period as currently provided in the LocalGovernment Act 1936-1991, s.7(1 A).

(b) Chief Executives (or their equivalent) may reassign an official,subject to the agreement of the PSMC, to other duties at the samelevel and in the same location as far as possible, in order to eliminateconflict of interests arising from partisan political activity by theofficial.

5.162 This recommendation is implemented in the Commission's draft Code ofConduct for Appointed Public Officials (Appendix F) in sub-section 8.1.7(Party-political Activity and Trade Union Activity).

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CHAPTER SIX

REVIEW OF THE EXISTING CODE: PUBLIC COMMENT;OFFICIAL INFORMATION; MERIT; PROFESSIONAL

ETHICS; AND PRINCIPLES OF GOOD ADMINISTRATION

Introduction

6.1 The previous two chapters were concerned with those provisions of theQueensland Code dealing with its "guiding principles", performance ofduties and conflict of interests. This chapter is concerned with theremaining provisions of the present Code and with general principles ofgood public administration.

Public Comment

Issue 5.166 To what extent, and in what circumstances should "public comment"on Government policy or administration by an official be able to be regarded asacceptable?

6.2 The Queensland Code acknowledges that public officials have a limitedright to make public comments on political and social issues. However, asin most other jurisdictions this is not an unfettered right.

6.3 Section 4.3 of the Queensland Code refers to public comment by officials:

"As members of the community , officers have a right to make public comment andenter into public debate on political and social issues . However, there arecircumstances where public comment or debate by officers is not acceptable. Theseinclude circumstances where -

a public comment made in a private capacity gives rise to publicperception that it is in some way an official comment of the Government orthe department in which the officer is employed;

an officer is directly involved in advising on or directing theimplementation or administration of Government policy, and the publiccomment would compromise the officer's ability to do so;

a public comment amounts to criticism sufficiently strong or persistent togive rise to a perception that the officer is not prepared to implement oradminister the policies of the Government;

a public comment on departmental administration causes seriousdisruption in the work place; and

a public comment amounts to personal attack.

Where officers are in any doubt as to the propriety of a proposed public commentthey should consult their supervisor or Chief Executive, and should observe anydirections made by their Chief Executive governing public comment relating totheir individual departments. "

6.4 The Issues Paper (para.5.164) observed that:

"As with other conflict of loyalty problems, the circumstances will be crucial, forexample:

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(a) public comment of a negative or critical kind, directed at a Government'spolicies will probably be seen as political dissent. The less senior the officermaking the comment, the less seriously are the comments likely to beregarded, and vice versa. Public political dissent of this kind by a seniorofficial may be regarded as a seriously inappropriate activity for the officialif it brings into question the officer's ability and willingness to serve thegovernment of the day;

(b) public comment of a critical kind directed at an organisation'sadministration of a government's programs is likely to be regarded as someform of `whistleblowing; whether it was intended to be or not. Whether sucha form of public comment is seen as inappropriate will probably varyconsiderably with the circumstances of each case. However, `whistleblowing'differs significantly from ordinary political dissent discussed above in thatthe seriousness with which the matter is regarded will depend upon the factsat issue, rather than on the status of the official making the comment;

(c) by contrast, public comment of a positive kind by an official, in relation to agovernment's policies, would be likely to be seen either as inappropriate, orirrelevant, since the advocacy of policy is, according to most expectations, theproper concern of Ministers and governments rather than officials. Advocacyof such a kind if undertaken by an appointed official, at any level, butespecially at the senior management level, would also be likely to be regardedas evidence of 'politicisation'. The same doubts about the officer's ability andwillingness to serve any elected government would arise;

(d) only in the case of justified positive comment about the organisation'sadministration of a government's programs does there seem to be littledifficulty. Indeed, one of the consequences of the emphasis on `bottom-lineaccountability' now being expected of senior program-managers bygovernments, Parliamentary Estimates Committees, Public AccountsCommittees, responsible Ministers, and investigative journalists, appears tobe an increased preparedness by senior officials to defend their organisationsthemselves (rather than expect the responsible Minister to do it for them). "

EVIDENCE AND ARGUMENTS

6.5 (a) " ... public servants must be publicly able to criticise his or her employer ... " (VDavies (S2)).

(b) "The present Code is quite detailed on the matter of public comment, and almosthalf the Departments considered it to be adequate as a guide to officers.

One Department suggested that where officials are able to separate their PublicService responsibilities from their rights as private citizens, there should be norestriction on their offering public comment. However, where they cannotdemonstrate such a separation, they should conform to the provisions of Section 4.3in the Code.

Another Department argued that public comment should be allowed by officialsinvolved in Green Paper preparation. Green Papers can be recognition that there isa problem with an existing policy or legislation. By their nature, Green Papersrequire public discussion of the issue and comment by delegated officials on theircontent. Such comment, which may be critical of an existing situation, should beconstructively made to ensure continuance of the public interest, equity, andfairness. It need not pre-emptively indicate the outcomes of the final Green Paper.A similar situation exists for consultative and advisory bodies.

Some Departments, however, appear to favour some tightening of control overpublic comment. One Department suggested that officers should not be permittedto comment upon their own Department unless those comments are first vetted bythe Chief Executive. Another maintained that public comment should be confinedto the description of the activities for which the officer is responsible, or any mattersapproved by the Chief Executive." (Joint Submission (S15)).

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(c) "That public comment on government policy and administration be permitted bypublic officials." (Queensland Watchdog Committee (S19)).

(d) The AMA (S26) argued that where the public interest is at stakeissues of social justice and equity need to be able to be addressedwithout fear of recrimination in all public sector organisations. TheAMA proposed a set of guidelines for public sector healthprofessionals predicated on there being several distinct types ofpublic comment:

"(1) In the interests of the general public and community awareness.

(2) In the interests of the health professions.

(3) In the interests of public health, safety, and the welfare of patients andclients.

(4) As an essential part of providing authoritative information when necessaryfor the general public.

(5) As an executive officer of a properly constituted association whose charterembraces their obligation to inform the public and address professionalissues.

(6) On behalf of colleagues in matters of terms and conditions of employment.

(7) In the interests of rules and regulations being fairly and equally applied.

(8) In the interest of sound economic management of the public sector.

(9) In the interests of social justice."

ANALYSIS OF EVIDENCE AND ARGUMENTS

6.6 "Public comment" is an area of administrative ethics where theterminology, along with professional and public perceptions of the issues,have changed significantly in recent years. For example, "public comment"is beginning to be no longer seen as including "whistleblowing" activity,although the significant similarities between the two activities aregenerally recognised.

6.7 Much clearly depends on the form, content and context of a publiccomment. The Code, however, unlike the Commonwealth Guidelines onwhich it is based, contains no recognition of the value of expert and"Reasoned public discussion of the factual and technical background to policies andadministration ... " in leading to " ... better public understanding of the process andobjective of government." (Commonwealth Guidelines 6.2, p.14).

6.8 In general, critical comment on government or opposition policy or theadministration of programs by an official who is likely to be seen as havingparticular authority, needs to be distinguished from comment in anessentially private capacity by an individual who happens to be a publicofficial. Clear-cut distinctions will not always be possible, calling for asensitive balancing of the government's right to "administrative privacy"against the individual's right to participate in civic affairs.

6.9 Ultimately, the issue turns on the extent to which the individual's officialcapacity will be seen by the public as relevant to the comment. The moreclosely the comment relates to matters about which the official isconcerned or knowledgeable, or is responsible for, the more likely it is thatpublic criticism by an official will be seen as involving a breach of trust,and a conflict of loyalties.

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6.10 The Issues Paper (para.5.165) also observed that there has been anincreasing tendency for holders of statutory office to make publicstatements relevant to their functions which can be critical ofgovernment. Such statements may be a necessary part of their functionsand reflect their statutory independence. An example of this was therecent criticism of trade practices law by Professor Baxt, Chairman of theTrade Practices Commission, on the occasion of his departure from thatposition. It is not appropriate that narrow "public comment" rules shouldapply or be applied to such officials, part of whose legitimate functionsmay be to comment critically on the workings of administration, and whoare perceived to be independent of the Government.

6.11 Kernaghan has argued that the requirement that public servants shouldnot publicly express their personal views on government policies oradministration is an integral component of the traditional public servicemodel of anonymity, political neutrality and professional non-partisanship(1976, p.447). The need to preserve the confidence of the public and ofpolitical superiors in the impartiality of public servants is often given asthe main justification for the restrictions on public comment by officials,although critical public comment has long been recognised asinappropriate (rather than unethical) because it is at odds with the notionof Ministerial accountability and the duty of confidentiality owed to anemployer.

6.12 The Creighton Case in Queensland described in para.2.52 is a goodexample of this general phenomenon.

6.13 Kernaghan also argued that "public comment" is more complex than theusual rules indicate:

"This rule does not take adequate account of the extent to which public servants areunescapably involved in public comment in the regular performance of their duties.In speaking or writing for public consumption, public servants may serve suchpurposes as:

1/

2/

3/

4/

5/

providing information and analysis of a scientific or technical naturefor consideration primarily by their professional colleagues withinand outside government;

describing administrative processes and departmental organizationand procedures;

explaining the content, implications and administration of specificgovernment policies and programs;

discussing, within the framework of governmental or departmentalpolicy, the solution of problems through changes in existing programsor the development of new programs;

discussing issues on which governmental or departmental policy hasnot yet been determined;

61 explaining the nature of the political and policy process ingovernment;

7/ advocating reforms in the existing organization or procedures ofgovernment;

81 commenting in a constructively critical way on government policy oradministration;

9/ denouncing existing or potential government policies, programs andoperations; and

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10/ commenting in an overtly partisan way on public policy issues or ongovernment policy or administration." (1976, p.449).

6.14 It needs to be observed that a number of these examples (eg. 1, 2, 3, 4, and6) are no longer regarded as public comment. The role (a legitimate role, ifunclear as to its boundaries) of public officials in providing officialinformation to the public is often not distinguished in traditional views ofpublic comment. The Ethics Survey identified significant concerns on thepart of Queensland officials as to how far they could properly go in, forexample, briefing the media on departmental programs or the content ofGovernment policy. The Code of Conduct needs to address the risk ofapparent political partisanship in such activities.

6.15 Kernaghan stated that public servants have engaged in all these activitiesalthough few have ventured beyond the first four categories. As evidentfrom the list, the later categories approach the " ... questionable, risky orprohibited." (1976, p.449).

6.16 The Joint Submission (S15) illustrates aspects of the common uncertaintyin regard to the extent of permissible disclosure. The Ethics Surveydemonstrated that many officers, especially senior officers, are uncertainabout activities such as briefing the media on policy or program activities.

6.17 The submission by the AMA (S26) raises issues to do with professionalismand the public's need and right to know about health matters. Some of theissues raised are discussed in an earlier section of this Report which dealswith the special features of professional codes of conduct (in particularterms such as "obligation", "rights" and "public interest"), and their placein public sector employment.

6.18 It is the view of the Commission that the AMA's draft guidelines arebroadly consistent with the Commission's own approach to public commentand, to the extent that they go beyond general matters, appropriate to allpublic officials. To the extent that the draft guidelines deal with specificconcerns, they would be a suitable basis for amendment of the relevantprofessional Codes of Ethics.

6.19 The Commission is of the view that the Code of Conduct should clarify thesubject of "public comment" in order to resolve uncertainties which mightprevent public officials from legitimately providing the public withinformation on government policy and programs. The Queensland Code'scurrent approach in regarding adverse comment by officials asinappropriate if it is inconsistent with the official's role in relation to theresponsible Minister, should be retained.

RECOMMENDATION

6.20 The Commission recommends that the present Code 's approach to publiccomment by officials should be clarified. It should be extended to offerguidance as to the relevance of

(a) official capacity;

(b) duty of loyalty; and

(c) context.

6.21 The Code should also clarify the considerations relevant to the provision ofinformation to the public and media where required by official duty.

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6.22 This recommendation is implemented in the draft Code of Conduct forAppointed Public Officials (Appendix F) in sub-section 8.1.4 (PublicComment on Government Policy or Administration).

Use or Release of Official Information

Issue 5. 181 What principles should apply to the use of official information for thepersonal benefit ofan official?

Issue 5.182 Should officials who use official information for their own benefit besubject to disciplinary action or other penalty ? If so, what form of penalty would beappropriate? If not, why not?

6.23 Many officials have privileged access to information which could be used totheir own advantage. Much of this information is not available to thepublic. The Queensland Code attempts to control the private use ofprivileged information through ss.4.1 and 4.2:

"4.1 Use of Official Information

Official information should not be used by officers to gain improperly any kind ofadvantage for themselves, or for another person or organisation.

Unless approved by their Chief Executive, officers presenting material at meetingsor lectures sponsored by individuals or organisations outside the Public Serviceshould not accept fees where -

officers utilize a skill, knowledge or information derived directly from theiremployment with the Government rather than a professionallspecialist skill;

meetings /lectures are supported by the respective Department and conductedduring normal working hours;

the Crown has ownership of the intellectual or physical property involved;

there may be a breach of the common law principles of the employee's duty offidelity to the interests of the employer, including the use of the employer'smaterials or property.

Where a fee is received by an officer in the above circumstances, it should be paidimmediately into departmental funds.

4.2 Release of Official Information

Officers are not prohibited from disclosing official information which wouldnormally be given to any member of the public seeking that information. However,official information of a confidential or privileged nature should not be disclosed tounauthorised persons or organisations, except with the approval of the ChiefExecutive. "

6.24 There are two main areas of concern for a Code of Conduct:

(a) the use of information by an official for their personal advantage in orafter public sector employment; and

(b) disclosure of official information to the media or more generally inthe absence of specific statutory or policy authorisation.

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EVIDENCE AND ARGUMENTS

6.25 (a) The Queensland State Service Union (S9) argued for minimumregulation:

"Officers should be given credit for common sense in this regard and, again, theview is offered that to seek to regulate on a definitive basis what informationshould or should not be released, will only produce an inhibition oninter-relationships between the Public Service and the public. "

(b) "The Departments held the view that restraints should apply to prevent the practiceof improper disclosure of information for personal benefit. This would amount topersonal enrichment at public expense. It is similiar to insider trading in thecontext of the Companies legislation. One Department argued that public servantsshould be subject to similar requirements in this matter as their private sectorcounterparts.

Another Department argued that if the information is public, it is quite appropriatefor it to be used for personal benefit. However, if this is not the case, the officialshould make application to the Chief Executive before using the information.

It has also been suggested that, considering the importance of confidentiality andsecurity of official information, the question has to be raised as to whether theincorporation of the guidelines for the use and release of official information shouldbe contained in a Code of Conduct or as to whether they should be addressed ineither statutory or regulatory form. If the need should ever arise to disciplinepublic servants for the misuse of official information, the incorporation of theguidelines in regulatory form might be an advantage.

One Department suggested that, after an officer leaves the Public Service, the usualrules regarding commercial-in-confidence and trade secrets information shouldapply.

It should also be noted that a small number of Departments considered Sections 4.1and 4.2 of the present Code to provide adequate regulation on the subject of use andrelease of official information." (Joint Submission (S15)).

(c) "It should be an offence for a member or an employee to improperly use, forpecuniary advantage or detriment, information gained through their office.Unauthorized use of confidential material should also be an offence. LocalGovernment should have the clear power to make by-laws specifying whatinformation is categorized as confidential." (LGAQ (S16)).

(d) The legal situation in relation to permitted and prohibited use ofofficial information by individual officials is also contradictory,complex and uncertain. As Professor Finn has noted:

"Conduct which governments and the public may well wish to encourage, presentlycan be a criminal offence. Conduct one would wish to discourage is often enoughleft unregulated. In the absence of systematic reform and modernisation of the law,it is impossible now to formulate standards of conduct which at once are suited tothe circumstances of modern democratic government in Australia, and which alsocomply with statutory and other requirements currently imposed on officers andemployees. To exaggerate this unsatisfactory state of affairs, it clearly is the casethat much in the practice of contemporary government, much in contemporaryofficial behaviour, departs markedly from what is lawfully permitted." (1991a,EARC file 017/280, p.11).

Professor Finn further noted:

"Short of attempting to prohibit outright any and all use of information acquired inoffice, save in the course of official duties - a step both unreasonable andimpracticable, though nonetheless taken legislatively in Victoria and WesternAustralia - the law's task (and it has been shouldered primarily by the commonlaw) has been to draw an acceptable and workable line between the permissible andimpermissible use." (p.202).

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According to Professor Finn, the common law approaches the problemin two primary ways, one based on confidentiality, and the otherbased on the fiduciary notion of loyalty and fidelity. The protection ofconfidentiality relates to the regulation of information disclosure.The duty of loyalty and fidelity refers to information misuse whichhighlights the "employment" role and constraints on the privateactions of officials. He argued (p.202) that loyalty, which has a widerambit than confidentiality, is the more appropriate model for thegovernment in erecting statutory or other regimes outlawing misuseof official information.

Professor Finn has proposed a principle for information misuse whichis based on the Commonwealth, the A.C.T. and Queenslandprovisions and also s.229(3) of the Companies Code:

"Misuse of Official Information.

An officer shall not make an improper use of information obtained in office, or ofany official document -

(i) in the interests of the officer or of any other person or body; or

(ii) to the detriment of any person or body (including the authority or agency inor under which office is held)." (Finn 1990a, EARC file 017/10, p.7).

In relation to the disclosure of information , Professor Finn proposedthe following three principles:

"1. Information supplied from non-governmental sources

An officer should not disclose information obtained from non-governmentalsources without the consent of its supplier, unless

the information was supplied for a purpose which permits itsdisclosure; or

there is lawful authority for the disclosure proposed to be made.

2. Information generated by the officers and agencies of government(governmental information)

An officer should not disclose governmental information unless

the information is required to be made publicly available;

the information has been, or has been authorised to be, made publiclyavailable; or

there is lawful authority for the disclosure proposed to be made.

3. Lawful authority

A disclosure will have lawful authority if, and to the extent that-

it is permitted in the ordinary discharge of official duty; or

is authorised or required by a statute or by law. " (Finn 1990a,EARC file 017/10, p.15).

(e) The Bowen Committee observed:

"... it would be wrong to rely on the duty of confidence owed by employees under thecivil law to prevent the misuse of official information. ... In any event, the duty ofconfidence offers very little in way of deterrence... " (1979, p.129).

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(f) Regarding penalties (Issue 5.182) the Joint Submission (S15) stated:

"In respect of penalties for the use of official information for personal benefit, it wasconsidered that a range of penalties should apply, depending upon the degree of thebreach. For example, officials who use official information in the manner of insidertrading should be dealt with very seriously, and a high penalty may be appropriatebecause of the breach of trust. However, if it is only a matter of acceptance of feesfor a speaking engagement, this is not as serious and should not be dealt withstrictly.

A number of Departments took the view that restitution should be required as partof the disciplinary process."

(g) "The penalty should be severe and must include dismissal as an option. Thetransfer to a less sensitive position must also be a possibility." (Cr H Schwabe

(S18)).

(h) " ... [a] significant issue which does emerge in the information area is the extent towhich information misuse should be a matter of criminal law sanction , the extentto which it should have merely employment or office holding disciplinaryconsequences." (Finn 1990d , EARC file 017/7).

ANALYSIS OF EVIDENCE AND ARGUMENTS

6.26 The principles outlined in the Queensland Code which are intended togovern the use and release of official information appear to be clearenough, even if the application of those principles may be open to disputein particular cases. As recognised in general terms by the code, an officialwho abides by the organisation's established practice, and who obtainsappropriate authorisation where doubt exists, will be unlikely to get intomuch trouble in releasing official information to the public at large.

6.27 There are a number of ways in which public officials may be tempted touse official information to their personal advantage. A few of these are:

(a) improper disclosure of information to third parties for financial gain;

(b) seeking alternative employment on the basis of official knowledge;and

(c) accepting fees for speaking or tutoring on topics which depend onknowledge of official information.

6.28 The disclosure of official information is subject to various statutorycontrols. These relate to the privacy aspects of official information, accessto information through freedom of information legislation, whistleblowing,public comment and the requirement that officials provide reasons foradministrative decisions.

6.29 In summary, there is general support for prohibition of improperdisclosure and use (ie. for personal advantage) of confidential officialinformation.

6.30 The submissions and evidence before the Commission supported a range ofsanctions for improper use of official information. These varied fromdiscipline to restitution and dismissal, depending on the seriousness of theoffence. Among the most serious offences was "insider-trading" - activitiesfor personal benefit which rely on privileged information.

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6.31 The Commission notes that disciplinary action for improper use ordisclosure of official information is now available after an official resignsor retires . In such cases , action can be taken under the CJ Act for "officialmisconduct". Further , where the misconduct occurs after resignation orretirement , sanctions are also available under the provisions of theCriminal Code.

6.32 The Commission believes that the Queensland Code of Conduct for PublicOfficials should prohibit the improper use of official information. Theformulation of "improper use" proposed by Professor Finn is an appropriatemodel.

6.33 Similarly the Commission is of the view that the Code should prohibitimproper disclosure of public information. Again, the formulationproposed by Professor Finn is considered appropriate for Queensland. TheCommission considers that the obligation should be stated positivelyrather than negatively, to guard against the possibility that such aprovision might be used to justify the non-disclosure of material withoutadequate reason.

6.34 In recommending prohibition of improper use and disclosure of officialinformation, the Commission is mindful of the need for effective sanctions.In clarifying unacceptable use or disclosure of official information, the codeshould take into account provisions of the Criminal Code, Freedom ofInformation principles and the use/disclosure of official information in the"public interest" or where required by official duty.

RECOMMENDATION

6.35 The Commission recommends that the Code of Conduct:

(a) prohibit the improper use and improper disclosure of officialinformation; and

(b) clarify acceptable usage and disclosure of official information,consistent with the provisions of the Criminal Code , Freedom ofInformation principles , and the public interest.

6.36 The draft Code of Conduct for Appointed Public Officials (Appendix F)deals with this recommendation in sub-section 8.1.3 (Use of OfficialInformation).

6.37 The Commission has noted that the Queensland State Service Union madea submission to the Parliamentary Committee for its examination ofEARC's Report on Protection of Whistleblowers (October 1991, 91/R4)which is relevant to this discussion. The Union suggested that:

"In order to put beyond doubt the prerogative of a public servant to releaseinformation to such an authority, all such authorities, particularly the CriminalJustice Commission, the Electoral and Administrative Review Commission and theParliamentary Public Accounts Committee, should be specifically nominated in theCode of Conduct [issued under the Public Service Management and EmploymentAct and Regulations]."

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6.38 The Parliamentary Committee endorsed the Union's suggestion andrecommended that the Queensland Code be amended accordingly. TheCommission agrees that the course of action proposed by theParliamentary Committee is appropriate and has included a suitableprovision concerning "whistleblowing" in its draft Code of Conduct forAppointed Public Officials (Appendix F) in s.8.1.5. ("Whistleblowing"Activity).

6.39 The Commission deals with the question of receipt of fees for private workinvolving the use of official information below under the heading "OutsideEmployment."

Use of Official Information in Private Sector Employment

Issue 5.187 What approach should the Guidelines take with regard to the use ofofficial information by former officials who take up private sector employment?

6.40 The Issues Paper noted that former public officials who obtain employmentin the private sector or take up positions as private consultants may be ina special position if the information, knowledge and skills they haveobtained and developed as officials is of commercial value to them or theiremployer.

6.41 The Issues Paper also noted that there may be reasons to distinguishinformation held by former officials from skills developed by them duringthe period in Government employment with regard to the type of workperformed after their departure. The use of privileged (confidential)information should be distinguished from the use of skills learned ordeveloped on the job.

6.42 "Post-separation employment" is recognised in a number of jurisdictions asan important area in which conflict between public duty and privateinterest may arise.

6.43 The Australian public sector has generally not applied formal sanctions topost-employment activities. Governments in the United States at bothfederal and State levels have developed a complex system ofpost-employment regulation which includes fines and other sanctions forbreaches of the legislation.

EVIDENCE AND ARGUMENTS

6.44 (a) "There will be a need to implement specific statutory prescriptions as to the usageby former officials of information which they have acquired in the course of theiremployment in the Public Service.

However, such statutory prescriptions should not be applied in regard to officers ofthe Public Service who, in the view of this Union, as hereinbefore indicated, arecapable of self-regulation merely by the application of common sense in light of theregulations and the Code of Conduct." ( Queensland State Service Union

(S9)).

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(b) The Joint Submission (S15) stated:

"Departments expressed the view that some restrictions should be placed upon theuse of official information by former public servants who take up private sectoremployment. In particular, there should be some limitation upon the use of secret,confidential or privileged information obtained when employed in the PublicService.

Some Departments suggested that restrictions should be similar to those operatingin the private sector, that is, `restraint of trade' type provisions.

Two Departments argued that some written undertaking not to misuse officialinformation in post public sector employment should be obtained from the employeeat the time of initial appointment to the Public Service. This is common practice inthe movement between companies by private sector personnel and provides a basisfor legal action if it becomes apparent that the officer has used official informationinappropriately.

One Department offered the suggestion that the ex-public servant should apply tothe Chief Executive of his or her old agency (or its replacement agency) to useofficial information, and that this rule should apply for up to two years from thetime of resignation.

A few Departments put the view that any restriction upon the use of officialinformation by ex-public servants should be enshrined in legislation (or containedin a PSMC Standard) rather than contained in a Code of Conduct. This couldsimply take the form of a confidentiality clause.

It is pointed out that it would be very difficult to police activities in this area. Acentral question to be considered here, too, is how far should ex-public servants'lives be regulated by a Code of Conduct, legislation, or any other instrument."

(c) The Guidelines on Official Conduct of Commonwealth PublicServants regulate post -public sector employment in some detail, andmake a distinction between the use in any subsequent employment ofknowledge and contacts , and the use of privileged or confidentialinformation gained while a Commonwealth official:

"13.17 The factors which should be taken into account in considering applicationsinclude:

the nature of the business appointment and its relationship to the publicservant's former position(s) and area(s) of work,

the relationship of the firm concerned with the Commonwealth, for exampleif it is a regular supplier of services or equipment, and

the period during which information gained or contacts made within thePublic Service would continue to be of value to the public servant andhis lher new employer.

13.18 It would generally be appropriate for an undertaking to be obtained from theapplicant regarding the use of official information gained by the applicant in thecourse of the applicant 's Australian Public Service employment.

13.19 It is unlikely that assent would be refused to an applicant . However in somecases consideration should be given to imposing conditions regarding the nature ofcontacts to be made with the Australian Public Service, or a part thereof for aspecified period. For example, it may be appropriate to impose a condition that theapplicant should not be involved in his or her new e mployment in dealings with theformer department or the Commonwealth ". (Public Service Board 1987,pp.38-9).

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(d) The New South Wales Code essentially states that:

' ... former public employees should ensure that their new employment does not castdoubts on their own integrity, that of their former agency, or the public servicegenerally." (L'Estrange & McArthur 1991, p.3).

ANALYSIS OF EVIDENCE AND ARGUMENTS

6.45 A public official's knowledge of "the system" and how it works, andworking relationships with other officials might be regarded as alegitimately personal matter. However, any knowledge of secret,confidential or privileged information would seem to need specifictreatment within a Code of Conduct.

6.46 Most Codes of Conduct endeavour to adopt an approach to suchinformation analogous to that taken by private sector employers inrelation to information which is "commercial-in-confidence", or "tradesecrets", by requiring former officers not to disclose such information, or byrequiring former officers not to have dealings with their former agencies onmatters with which they were concerned as officials, or not to work on suchmatters for any new employer for a specified period.

6.47 On the question of technical skills gained by public officials at publicexpense, the Commission is of the view that with a relatively smallworkforce like Queensland's there are considerable advantages to thecommunity in public/private sector mobility. The alternative is to placeembargos on the private use of skills gained through training in the publicsector. Such restrictions are clearly unacceptable in principle and wouldprobably be unworkable in practice. The Commission agrees with theposition taken by the Commonwealth Guidelines on Official Conduct ofCommonwealth Public Servants:

"In common law there is a general rule that a person is not to be restrained from

using skill, knowledge or experience gained in the course of employment." (1987,

p.36).

6.48 Nevertheless, public confidence in the integrity of the service requires thatthe issue be dealt with specifically in a Code of Conduct, with sanctions forabuse or failure to observe appropriate confidentiality. In Queensland theCJ Act provisions covering use and disclosure of information generally willapply to post-public sector employment. However, a Code of Conductshould draw specific attention to the need for officials to exercise care indealing with information gained as an official in any subsequentemployment or in personal capacity.

RECOMMENDATION

6.49 The Commission recommends:

(a) that the Code of Conduct provide general advice in relation topost-public sector employment , including ethical use of contacts,knowledge and information , and the confidentiality requirementsrelating to former officials including self-employment;

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(b) that the Code of Conduct require Chief Executives to establish anadministrative procedure to ensure that officials taking up privatesector employment are aware of any general or specific obligationsapplying to them in relation to the use of official information anddepartmental contact, and the Chief Executives to advise on thisperiod(s) for which such obligations are to apply , where suchemployment could reasonably be seen as involving a conflict ofinterests for the official , or likely to compromise the integrity of thepublic sector.

6.50 The Commission's draft Code of Conduct for Appointed Public Officials(Appendix F) contains provisions dealing with post-public sectoremployment in section 8.4 (Employment in the Public Sector).

Fees For "Outside Employment"

Issue 5.188 On what basis, if any, should officials be permitted to accept andretain fees for activities undertaken in their own time which use.

(a) knowledge; or

(b) skills

which they have developed in their official employment capacity?

EVIDENCE AND ARGUMENTS

6.51 (a) The Joint Submission (S15) stated that individual circumstancesshould be taken into account and permission from the CEO may benecessary:

" ... Departments agreed that public servants should be allowed to accept andretain fees for activities undertaken in their own time which use knowledge or skillsdeveloped in their official em loyment capacity. It is of course difficult to identifyand quantify such skills andpknowledge, so it is difficult to police regulations inthis area . Consideration should be given to the individual circumstances, and itmay be appropriate to seek the permission of the Chief Executive (or his or herdelegate) prior to engaging in such paid activities."

(b) Cr H Schwabe (S18) submitted that officials should make a fulldisclosure of all such fee-earning activities prior to engaging in themand that there should be ongoing review of all such activities:

"If these fees are obtained completely unrelated to the presently held position andthe knowledge used does not violate the spirit of 6.65 [issue 5.187] there might haveto be a process to allow such activity. However this must be declared and fullydisclosed prior to commencement and further a review of all such activities outside

the main employment by superiors should be ongoing."

(c) " ... any officer who is required to serve in a position on a board or committeewhether directly related to his or her normal employment or not should, ifcommittee meetings occur outside of business hours, be entitled to retain the boardfee. If any such activity is undertaken during business hours, the Department isentitled to require that the officer refund to the Department the amount of therelevant fee.

Any such decision on behalf of the Chief Executive should be subject to theestablished grievance procedures." (Queensland State Service Union (S9)).

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ANALYSIS OF EVIDENCE AND ARGUMENTS

6.52 The submissions were generally in favour of allowing officers to retain feesgained from essentially private activities. However, it was suggested thatofficials should seek approval before entering into such arrangements.

6.53 There needs to be clarity as to whether the activity involves anunacceptable conflict of personal interests and public duty, whether theactivity is in the public interest (for example, a fee for tutoring atUniversity in the area of the officer's expertise in the public sector), orwhether the activity impacts adversely on the official's work-performanceor availability during office hours.

6.54 Generally, any activity with potential for conflict such as the acceptance offees involving the potential for "double-dipping" (for example, acceptingfees for addressing a community group on the agency's program) should bethe subject of specific prior approval by the CEO.

6.55 The Commission is of the view that acceptance of fees for private-capacityactivity performed in one's own time or, subject to the CEO's approval,within normal working hours, and involving the skills or knowledge usedin one's official capacity, may be permitted.

RECOMMENDATION

6.56 The Commission recommends that the Code of Conduct should requireofficers to obtain specific approval from their Chief Executive to retain feesfrom any private activity which could reasonably be seen to be part of, orsignificantly connected with , their official duties.

6.57 The Commission's draft Code of Conduct for Appointed Public Officials(Appendix F) deals with this recommendation in sub-section 8.4.5(Applications for Approval to Engage in Other Employment).

Merit

Issue 5.207 To what extent does 'the merit principle" provide a workable basis fora code of administrative ethics in Australia today?

Issue 5.208 To what extent are inappropriate "unexamined assumptions' about"merit", gender, sexual preference, marital status, family responsibility, equality ofopportunity, personal values (eg. political and religious beliefs), and multiculturalissues contained in the code of conduct?

Issue 5.209 Where such assumptions are identified what are they, and how shouldthey be handled in the context of a code of conduct?

6.58 One of the fundamental tenets of the Westminster tradition is thatappointed public officials will be appointed and advanced on the basis ofmerit rather than political or ideological patronage. Another is that theywill be non-partisan and objective with regard to the performance of theirpublic duties.

6.59 Consistent with this notion is the expectation that public administrationshould be free of patronage, favouritism and unjust discrimination, withpublic servants being appointed and advanced on the basis ofobjectively-assessed merit alone.

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EVIDENCE AND ARGUMENTS

6.60 The Joint Submission (S15) stated:

"Not all Departments addressed these issues. However, based upon the commentsavailable, there appeared to be support for the merit principle as a suitable basisfor a code of administrative ethics. The merit principle is perceived as a safeguardagainst unethical behaviour, fraud, corruption and patronage.

One Department argued that without the merit principle as the cornerstone ofappointment to the Public Service, there can be no incentive for employees to exce ,and low morale would be the norm. Another Department stated that the meritprinciple prevents many staff being undeservedly appointed because of politicalcronyism. This is an aid in the creation of a more effective, professional publicsector, containing officers who can better serve the public interest.

While the merit principle was considered a suitable basis for a code it is not anentirely workable basis. As several Departments argued, it is very difficult toensure the application of the merit principle, because of the constraints caused bythe subjectivity contained in the decision-making process. "

and

"Of the Departments which chose to comment upon the presence of inappropriate`unexamined assumptions' in the Code about merit and so on, the majority held theview that there are no such assumptions identifiable in the Code."

and also

"One Department stated that the central difficulty in the identification of`unexplained assumptions' is that such comments are a reflection of the applicationof the merit principle rather than the pursuit of the concept per se. It is neverthelessinevitable that value judgements will occur in attempting to apply merit standards,but the Code of Conduct does not contain any glaring or controversial elements thatcould be identified as `inappropriate' assumptions."

6.61 The Fitzgerald Report dealt explicitly with the importance of the meritprinciple in guarding against politicisation of the public service and thelikely consequences for the community of failing to implement it:

'A system which provides the Executive Government with control over the careers ofpublic officials adds enormously to the pressures upon those who are evenmoderately ambitious. Merit can be ignored, perceived disloyalty punished, andpersonal or political loyalties rewarded. Once there are signs that a Governmentprefers its favourites (or that a particular Minister does so) when vacancies occur orother opportunities arise, the pressure upon those within the system becomesimmense.

Of course, politicians are entitled to political advice from staff appointed for thatpurpose, but that is not the job of bureaucracy. Its role is to provide independent,impartial, expert advice on departmental issues. Public officials are supposed to befree to act and advise without concern for the political or personal connections ofthe people and organizations affected by their decisions.

When a Government creates a bureaucracy peopled by its own supporters, or bystaff who are intimidated into providing politically palatable advice, theGovernment is effectively deprived of the opportunity to consider the full range ofrelevant factors (including but not confined to political considerations) in makingdecisions.

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As a result, wrong decisions are made. When problems crop up because of suchdecisions, the politicization of the bureaucracy means that the Government isunlikely to realize their extent and significance. The bureaucracy can also help theGovernment to hide what is happening if that is what is wanted." (1989, p.130).

ANALYSIS OF EVIDENCE AND ARGUMENTS

6.62 In accordance with general expectations that public services inWestminster-derived systems of government should be free of patronage,favouritism and unjust discrimination , public servants are generallyexpected to be appointed and advanced on the basis of an open, competitiveassessment of their merits - "the merit principle ". An officer's "merits" fora particular position are generally understood as the relevantcharacteristics of a person as identified by an objective assessment of theskills, knowledge and experience required to perform a particular jobefficiently.

6.63 There appears from the evidence and seminar papers to be little difficultyin principle with the concept of merit-based advancement in publicemployment , and no new issues were identified . The Joint Submission(S15) however suggested that the practical application of the merit test inrecruitment and advancement is seen as "very difficult" because ofinevitable subjectivity in the decision-making process. Continuingallegations of cronyism in appointments in Queensland lend support tothis perception.

6.64 This is a frequent objection to merit systems, and not only in Queensland.However, one of the explicit purposes of the PSMC Standard forRecruitment and Selection is the minimisation of undue subjectivity - notthe elimination of the exercise of judgement - in the selection process.

6.65 The Commission welcomes the PSMC issuing a formal Standard under thePSME Act, which requires appointment and advancement within thepublic sector to be on the basis of merit, properly considered.

6.66 At present, the application of the Standard is ensured to some extent bythe appeals process, and by the fact that it is the responsibility of CEOs toensure compliance with the Standard. A breach of the Standard couldrender an officer subject to disciplinary action.

6.67 It is generally recognised that "merit" and the contingent notions of"merit-based" appointment and promotion, and "merit pay" are not easyprinciples to put into practice . The assessment of "merit " is notoriouslyprone to bias , subjective perceptions , and gender-discriminatoryassumptions about such basic matters as the quality of work performance,work value, and job responsibility . ( See Burton, 1991 for a detailedtreatment of this subject).

6.68 Nevertheless, the Ethics Survey and anecdotal evidence suggest publicexpectations of Australian government and public administration stillfavour strongly the idea of a merit-based , non-partisan public service. Agovernment appointing senior officials who are publicly aligned with itsvalues and aims can expect to be accused of politicising the public service,whatever the merits of the appointees. Allegations of "cronyism" arebecoming commonplace in modern Australian public administration.

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6.69 The Commission also notes that the Government has recently agreed toextend the scope of the relevant appeal rights in an effort to protect theprinciple of merit-based employment. However, the Commission isconcerned that a culture may develop in which officials might bevictimised in one way or another for using the appeal process provided,and so cease to use it.

6.70 To the extent that the appeals process is an important defence against thepoliticisation of public sector employment, and other abuses, theCommission considers that managers at all levels have an important dutyto support and defend the principle of objective and fair merit-basedappointment and advancement in the public sector.

6.71 The Commission considers that it would be useful to have the Code ofConduct refer to the importance of the merit principle, in part to remindreaders of the ethical foundations of the principle, but also to emphasisethat falsification of an assessment of a person's merits, for personaladvantage, amounts to a form of fraud.

RECOMMENDATION

6.72 The Commission recommends that the Code of Conduct reiterate theethical foundations of the merit principle in public employment, andrequire officials to deal with other officials, their subordinates and thepublic in accordance with an objective and fair assessment of their merits,especially in relation to employment matters.

6.73 This recommendation is dealt with generally in the draft Code of Conductfor Appointed Public Officials (Appendix F) in Part 7 (Respect for Persons).

Politicisation

6.74 There is growing debate as to whether the strict adherence to appointmentand advancement on the sole basis of "merit" inhibits the development ofan efficient and responsive public service, especially at very senior levels.Wilenski, among others, has argued that personal values may be alegitimate factor in a senior officer's ability to be effective:

"Once it is admitted, however, that power is exercised by public servants and thatpersonal values help determine how it is exercised, then the personal values of anapplicant become an important ingredient in assessment of his or her merit. Theassessment of these values is not an objective matter; it is quintessentiallysubjective. Since it is subjective it may well be reasonable that for some keypositions the government's view of merit may be the one that is most relevant."(Wilenski 1986, p.63).

6.75 The alternative view claims that the public service will be more efficientand responsible if its senior officers are recognised and trusted asprofessionally competent and experienced people who, whatever theirpersonal views and values, are committed to serving governments of anypersuasion in a non-partisan manner. A significant commitment tointegrity is required, not only of the officers themselves at a personal level,but also of senior management and their Ministers, upon whom rests theresponsibility for defending the integrity of the public service.

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6.76 Further, given the widely-held expectations of a politically non-partisanpublic service staffed in accordance with the merit principle, any attemptby an elected representative to "influence" the advancement orappointment of a particular individual will be likely to be seen asdamaging to the integrity of the public service and an abuse of office.

6.77 Some Australian writers have commented adversely on what they see asthe increasing politicisation of public services, and the Australian(Commonwealth) Public Service in particular. For example, a journalistand former Liberal staffer, Barnett has commented:

"It is no longer the Whitehall model civil service, serving all elected governmentswith equal dedication. `The Australian public service is now just as politicised asin the United States,' says a senior bureaucrat.

The Hawke government has achieved its political goals in three ways. It haseffected the promotion and preferment of public servants within their departmentswith the right attitude. It has developed further the transfer of power to politicaladvisors within the offices of the Prime Minister, the Treasurer and other ministers(numbering close to 300). And it has fostered and established within departments,but separate from them, research bureaus which have taken from departmentsmuch of their policy advising significance and which have proved to be`manageable'." (1991, p.46).

6.78 In the Commission's view, integrity and professional independence are in areal sense mutually reinforcing: when public officials, and through themthe public sector, are no longer seen as politically non-partisan, incominggovernments will find it easy to justify filling senior management rankswith appointees acceptable to the new government. Inevitably, furtherchanges of government will lead to further politicisation of the service asthose with an eye to prospects for advancement learn the new rules of thegame, and take sides.

6.79 As the Fitzgerald Report recognised, the process of politicisation leadsinexorably to a public service which provides governments with partial,inexpert, and self-interested advice. It also gives rise to internal divisions,inefficiency, a reduction of professional credibility, a reduction of careeropportunities and a reduction in the ability of the public sector to recruitand retain talented staff who are not afraid to compete for advancement onmerit.

6.80 The Commission has recommended elsewhere in this Report (seepara.5.140) that the improper use of influence by elected representativesshould be addressed specifically in the Code of Conduct.

6.81 The Issues Paper noted that Parsonage, an Australian politicalphilosopher, has identified another relevant aspect of "politicisation":

"There are two distinct but related senses in which any decision, activity orinstitution can be said to be politicised. The most obvious sense, and the oneFitzgerald has concentrated on .. is where party political considerations areallowed to play a major role, rightly or wrongly; the word has other than pejorativeuses. ... The other sense of politicisation is not easily pinned down. It is the notionthat even in the absence of either overt or covert party political influence, aninstitution, a practice or a specific decision may discriminate against, or in favourof, a particular value or set of values, a particular way of life. This kind ofpolitical bias is difficult to detect - it may have nothing to do with the consciousintentions or professed beliefs of the people involved - and it is even more difficult tocombat, not least because at some point what has to be challenged are unexaminedassumptions about the world, which are embedded in practices which have theappearance of being natural and therefore inescapable. " (Parsonage 1991, p.14).

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6.82 The Commission agrees that party-political patronage in relation toappointments and advancement in its more blatant forms is relatively easyto guard against. The question of politicisation of the implementation ofpolicy, through the politicisation of ideas, is a much more difficult andserious matter.

6.83 In the Commission's view, a professional, non-partisan public sectorclearly has a duty to provide "frank and fearless advice" to governments, toenable the proper consideration of all options. While a government maybring pressure to bear upon public officials in order to obtain the advice itwishes to hear, uncritical acquiescence is unlikely to be in the publicinterest or the long-term interest of public officials.

RECOMMENDATION

6.84 The Commission recommends that the Code of Conduct require publicofficials at all levels to behave with integrity and impartiality and to bepolitically and ideologically non-partisan in their dealings withgovernments and the public , in recognition of their general duty to act inthe public interest.

6.85 This recommendation has been implemented in the draft Code of Conductfor Appointed Public Officials (Appendix F) in Part 8 (Integrity).

Professional Ethics

Issue 5.215 What considerations are relevant in determining the over -ridingobligations or duties of employed professionals in circumstances of a conflictbetween the requirements of the officer's professional code of ethics and the specificrequirements, in a given case, of the employing agency or authority?

6.86 This issue is not explicitly dealt with in the Queensland Code. It is thesubject of some concern among employed professionals in Queensland andelsewhere.

6.87 The Issues Paper (para.5.210) noted that the major professional groupshave developed formal Codes of Ethics which function, inter alia, to controlthe professional conduct of members, to license members of the professionto practise, and to reassure the public or the client-group that theprofession is sufficiently responsible in such matters as its professionalduties to clients and its approach to safeguarding the public interest. ThisReport (paras.2.92-2.104) discusses the role of professional ethics in thepublic sector.

EVIDENCE AND ARGUMENTS

6.88 Only one submission dealt with this matter in any detail. The JointSubmission (S15) stated:

"There was no clear agreement among the Departments on the question ofdetermining the over-riding obligations of employed professionals in circumstancesof a conflict between the requirements of the officer's professional code of ethics andthe specific requirements of the employing agency or authority.

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Some Departments took the view that generally professional ethics should beparamount. If a person is employed on the basis of his or her professionalqualifications, then it must be expected that the professional code of ethics wouldtake precedence over a Public Service code. Any derogation from professionalethical standards is extremely serious and the penalties for breach of theprofessional code may be such as to prevent the professional from obtaining work intheir profession (for example, if the professional is struck off).

One Department suggested that the employing authority should adopt all or part ofthe profession's code. Another suggested that the Queensland code should beamended to acknowledge, as a general principle, that there are codes of ethics forprofessional groups.

It was argued by one Department that each case of conflict should be examined onits merits. It is noted that Governments today encourage the process ofprofessionalism, with the creation of statutory boards to regulate such activities, sothe outcome of any conflict may depend upon how far the balance is tipped infavour of the prevailing values.

Some other suggestions from Departments regarding this issue include:

the conflict should be resolved by relying upon one's professional judgement;and

the conflict should be drawn to the attention of the superior officer and theprofessional body, and officers should not be required to put themselves atrisk of suffering penalties for breaches of their professional code."

ANALYSIS OF EVIDENCE AND ARGUMENTS

6.89 This is another complex issue, although in practice the potential for realdeadlock will often be more apparent than real. Where members ofprofessions are employed in their professional capacity by public sectororganisations (eg. medical officers, legal officers, social workers,psychologists etc.), there is significant potential for conflict between theprofessional ethics of the employee and the management requirements ofthe organisation.

6.90 The potential for conflict arises, for example, where a governmentemployed professional believes that dealings with a client require anapproach consistent with the ethics of the profession yet government policyrequires a different approach. Doctor/patient confidentiality, properstandards of professional care and the right of a professional to commentpublicly in a professional capacity, are three examples. Conversely, aprofessional may be liable to be "struck off' by the professional body forfollowing government or departmental policy where this contravenes theprofession's Code of Ethics.

6.91 Most situations involving conflict will be resolved by discussion with peers,management, the professional body or others. It might be expected that incases of real dilemma, the professional body concerned would be preparedto defend its code, and not expect a member to do so, as suggested by theJoint Submission (S15) and the AMA (S26).

6.92 However, potential for difficulties arises because most professional codes ofethics are generalised high level statements of "professional obligations"with little particularised explanation or guidance as to their application.

6.93 Employed professionals are expected to exercise their professionaljudgement in the interests of clients. In the public sector however, it is theMinister who ultimately has the power to direct the activities of theprofessional, and the professional as employee has a duty to follow thesedirections.

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6.94 There may be exceptions to this general approach. Depending on theextent to which an employed professional's role and responsibilitiescorrespond with those of private-sector counterparts, the Code of Ethics ofthe profession may carry more weight. For example, where a medicalpractitioner is employed to function as general practitioner for the staff ofa large government-owned factory, the appropriate approach to the duty ofconfidentiality will be different from that taken by a medical practitioneremployed to assess and certify the medical interests or otherwise of publicofficials seeking entry to a Government superannuation fund.

6.95 Where a public sector professional is in intractable dispute with theemploying organisation on policy grounds, the available options for theindividual are discussion and reasoned argument, representations on thematter by the relevant professional body, re-assignment of the officer toother duties, and principled resignation, depending on the circumstances.

6.96 Where the dispute centres on an acute issue, the criteria for"Whistleblowing", preferably through the professional body, may berelevant in the interest of preventing significant and immediate danger topublic health and safety.

RECOMMENDATION

6.97 The Commission recommends that:

(a) the Code of Conduct should declare in principle a qualified primaryduty of the employed professional to their public sector employer; and

(b) the Code of Conduct should deal explicitly with the problem ofdisputes over the application of a Professional Code of Ethics, bysetting out in general terms a process to be followed where officialduties and the requirements of a Professional Code of Ethics are inconflict.

6.98 This recommendation is dealt with in the Commission's draft Code ofConduct for Appointed Officials (Appendix F) in Part 5 (Personal andProfessional Ethics).

Proposed Principles of Good Adminis tration

Issue 5.219 Public comment is invited in respect of the principles of that proposedcode [Code of Principles of Good Administration] and as to whether it would beappropriate for them to be included as part of a Code of Conduct for PublicOfficials.

6.99 The Commission's initial Judicial Review Bill contained a draft statementof a Code of Principles of Good Administration as a Schedule. The IssuesPaper asked if the principles should be included as part of a Code ofConduct for Public Officials.

6.100 The principles were aimed at satisfying the requirements of equity, justiceand procedural fairness in decision making, particularly wherediscretionary power is exercised by an administrative authority or publicofficial. The Commission proposed that the matter be brought up again inthe context of the Review of Codes of Conduct.

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EVIDENCE AND ARGUMENTS

6.101 (a) 'Not all Departments offered comment upon issue [5.219]. Of those whichexpressed a view, a small number would support the inclusion in the QueenslandCode of the EARC `Proposed Code of Principles of Good Administration'. One ofthese Departments commented that it would support the inclusion in a Code ofConduct of principles of good administration aimed at satisfying the requirementsof natural justice and procedural fairness in decision -making, subject to a concernthat such a Code may erroneously be used in substitution for statutorily imposedcriteria which expressly or impliedly exclude common law natural justicerequirements.

Among the Departments which did not favour inclusion of these principles in theQueensland Code, there was the view that these principles are already alluded to inthe Cabinet Handbook (Queensland). They must be embodied in all legislationwhich goes before Cabinet and Parliament in this State. Hence it would be bothexcessive and unnecessary to incorporate those principles into the Code of Conductfor Officers of the Queensland Public Service." (Joint Submission (S15)).

(b) The submission from Victims of Corruption (S7) alleged "... unethicalpractices ... " engaged in by organisations such as the QueenslandCorrective Services Commission and the CJC. The group stated: "Ifthe proposed code of principles of good administration (appendix `J') is adopted, itwould eliminate most of the problems arising out of our submissions."

(c) Livingstone Shire Council (S5) commented that elements of theproposed Code of Principles of Good Administration , especiallyclauses 1 to 4, were inappropriate:

" ... as they infer a substantial obligation to determine who will be informed inrelation to any proposed decision; and they indicate a need to substantially increaseresources to cope with increased workload.

In seeking to obtain procedural fairness it would be necessary to consider the effecton, or the rights of other parties and to afford all concerned the right to berepresented and to be informed of any adverse material to their case.

The implications for staff, research and time could be quite staggering.

The requirement that a person be informed of all available factors relevant to thetaking of a decision or action befte the decision is taken would be even moreonerous than the present town planning approvals where decisions are first`proposed ' and subjected to appeal action . It is conceivable that some decisions maynever be made, or else conclude in litigation.

The giving of `statements of reasons ' for decisions seems reasonable but there mustbe exceptions in personal /legal /contractual instances where the level of detail maynot be great and where the full facts should not be explained in order to ensure thatconfidentiality is respected and to minimise litigation.

If we were to proceed with the proposals outlined in Clauses 1-4 of this Code itwould necessitate considerable cost in terms of staffing, resources and Councilmeetings to carry out the business of Council."

(d) R McKinnon (S12) submitted that the proposed Code of Principles ofGood Administration is:

"... unacceptable, and that, because it is over ambiguous and adds nothing to thepreservation and enhancement of individuals ' rights and freedoms, and in no wayeliminates inappropriate considerations from decisions made by or on behalf of theGovernment. "

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ANALYSIS OF EVIDENCE AND ARGUMENTS

6.102 The few submissions in respect of the proposed Code of Principles of GoodAdministration were divided - on balance, there were no persuasivereasons advanced for excluding the Principles from the Code of Conduct.On the other hand, the Principles form a comprehensive and concretestatement of what administrative ethics require of officials engaged in theexercise of discretionary power - the central ethical concern of the Code ofConduct.

6.103 There would undoubtedly be some costs attached to the imposition of suchstandards on all applicable decision-making. There would also besignificant costs entailed in training associated with the Principles if theywere a mandatory part of the Code.

6.104 On the other hand, as some submissions, and in particular some publicservice departments argued, there would be benefits in the form of betterdecision-making, improved public confidence in the processes ofgovernment, reduced incidence of appeals and representations, and moreequitable outcomes. In the Commission's view, the question of whethersuch benefits outweigh the costs is difficult to assess. The more relevantquestion may be whether any system of public administration which aimsto be democratically responsible, accountable and just can refuse to requireits officials to observe high standards of procedural fairness indiscretionary decision-making, the development of government policy andthe administration of its programs.

6.105 It has been argued in any case (Kernaghan and Langford, 1990) that aprocedural fairness regime should constitute the major part of a publicofficial's "professional ethic" in a democratic system of responsiblegovernment, as it provides the foundation for appropriate standards ofaccountability. The Commission strongly endorses this view.

RECOMMENDATION

6.106 The Commission recommends that:

(a) the Proposed Principles of Good Administration should beincorporated in the draft Code of Conduct for Public Officials;

(b) the Code of Conduct should advise and encourage officials toimplement the "Principles of Good Administration" unless it can bedemonstrated that implementation in a particular case would becontrary to the public interest.

6.107 The Principles of Good Administration have been incorporated into thedraft Code of Conduct for Appointed Public Officials (Appendix F) insection 9.2 (Standards of Good Administration).

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CHAPTER SEVEN

CODE OF CONDUCT FOR ELECTED REPRESENTATIVES

Introduction

7.1 The revious three chapters of this Report have examined the provisions ofthe Queensland Code, primarily from the perspective of its application tothe behaviour of appointed and employed officials. These chapters madethe point that the community is entitled to expect that public officials willbehave ethically and carry out their duties responsibly and in the publicinterest. It is the Commission's view that these expectations extend toinclude elected representatives at both the State and local governmentlevels.

7.2 At present there exists a draft Minister's Code of Ethics in Queensland.This document was issued as part of the Guidelines for the FinancialManagement of Ministers' Offices; it is currently included in the draftCabinet Handbook. The Commission is uncertain as to its current status.However the Premier has advised the Commission (7 April 1992, EARCFile 017/277) that it is the Government's intention to publish the revisedHandbook and Code as soon as practicable.

7.3 There is at present no formal comprehensive Code of Ethics or Code ofConduct for MLAs in Queensland. Instead new Members are required toswear an Oath of Office, or make an Affirmation on entering Parliament.Standing Orders of the Parliament regulate the behaviour of Memberswhile in the House, and prohibit Members in respect of matters in whichthey have a "direct pecuniary interest".

7.4 In 1990 the Legislative Assembly resolved to establish an ongoing Registerof Member's Interests and a Register of Related Person's Interests. Thepurpose of the Registers is:

" ... to provide information of pecuniary interests or other material benefits whicha Member may receive which might be though to affect his conduct as a Member orinfluence his actions, speeches or votes in Parliament. " (QueenslandLegislative Assembly 1990, p.1).

7.5 In respect of local government the LG Act contains a number of provisionswhich deal with the conduct of Members of Local Authorities but they donot constitute a formal code. Some Local Authorities have issued codes orlocal rules for their Members.

7.6 Section 14(4) of the LG Act prohibits Members of Local Authorities votingon contracts and other matters before Council in which they have apecuniary interest. However, the terms of this sanction are not sufficientto prevent conduct which may be unethical.

7.7 For example, s.14(4)(vi) of the LG Act provides a defence for a Member of aLocal Authority accused of not disclosing a pecuniary interest if theMember " ... proves that he did not know that a contract, proposed contract, or othermatter in which he had a pecuniary interest was the subject of consideration at themeeting. "

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7.8 The Commission is concerned that the current Codes and legislationdealing with ethics for elected representatives do not provide sufficientguidance on their conduct for all categories of elected representatives:Ministers, MLAs, and Members of Local Authorities alike. This chapterdeals with what the Commission considers to be the ethical obligations ofelected representatives, in an endeavour to assess the extent to which itmay be possible, and desirable, to draw up relevant standards of ethicalconduct comparable to those proposed elsewhere in this Report for othercategories of public official.

7.9 This discussion of the ethical basis of the role of elected representatives inthe system of government in Queensland today is not intended to beexhaustive. It endeavours rather to recognise the relevant features whichdifferentiate elected officials from non-elected officials who are employed inpublic service agencies or as appointed statutory office-holders.

7.10 At the outset it needs to be recognised that formal detailed Codes ofConduct for elected representatives in Westminster-derived systems ofresponsible government are a relatively recent phenomenon.

7.11 In Australia at least, most Parliaments (and Councils) operate under along-established system of "Standing Orders" which govern, for example,the language which may be used by Members of the Chamber, thetruthfulness required of Members, and conflicts of interests of variousforms, in very general terms. The relevant Criminal Code may alsoprohibit various forms of corruption, bribery and abuse of office.

7.12 In general , the legislatures of the United States and Canada have detailedmechanisms for the control of Members' pecuniary interest, broadlyunderstood, usually by means of specific detailed legislation. By contrast,conflicting interests of Members of Parliament in Britain and Australiaare subject to a restricted range of provisions in the various CriminalCodes, parliamentary privilege traditions, ad hoc policy directives bygovernments in relation to Ministers and their interests, Oaths of Officeand Standing Orders.

7.13 This approach was eventually found to be unsatisfactory for, although inBritain (and Australia) Members of Parliament have on occasion beenexpelled or otherwise dealt with for bribery, fraud, forgery, breach of trust,conspiracy to defraud, corruption in public office and "conductunbecoming", it is only recently that specific Codes of Conduct for electedrepresentatives have sought to set out the standards of conduct expected ofMembers in relation to their role as public officials. The Canadianexperience is illustrative:

"Until the 1960s, there was very little interest in written conflict of interest codesfor ministers in Canada. Federal and provincial governments followed the Britishapproach of `reliance on unwritten rules and customs to avoid conflict of interest'by cabinet ministers . This is not to say that no written rules existed. TheCriminal Code has always contained provisions which prohibit the bribing ofcabinet ministers and the granting of benefits by ministers in return for explicitfavours. In addition, the statutes governing Parliament and the provinciallegislatures, the standing orders of the House of Commons and provinciallegislatures, and the various elections acts all deal with conflict of interest.However, most of these provisions are designed to provide sanctions if a privateprofit from public office has actually occurred; they prohibit merely a few of thesituation in which ministers could potentially make a personal profit from publicoffice. It has only been during the past 25 years, and especially the past 10 years,that unwritten codes of conduct have been supplanted by written rules whichprohibit ministers from being in any situations in which they potentially derive apersonal benefit from public office.

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It is curious that this shift to written rules did not occur earlier. ... One plausibleexplanation, ... is increased public demand for social equality. By institutingwritten conflict of interest rules, therefore, cabinets were responding to changingsocial values. In addition, it became obvious that the unwritten code of conductwas being interpreted in widely divergent ways, leading to unresolvable internaldisputes over standards." (Greene 1990, p.245-6).

7.14 The difficulty of gaining public confidence and a meaningful level ofaccountability from an unwritten Code of Conduct for MLAs was identifiedspecifically by the Fitzgerald Report:

"According to Bjelke-Petersen, the rules of conduct which he administered asPremier were embodied in an unwritten code and every Minister knew them andobserved them.

Bjelke-Petersen's code required a Minister to disclose that he or his wife had aninterest in any matter before Cabinet. It also required the Minister to disclosethat he or his wife had an interest or an association with any other person whowas an applicant before Cabinet. The Minister was required to exclude himselffrom the decision-making process, and from the discussion leading to thedecision-making. According to Bjelke-Petersen, that did happen from time to time.

It was plainly not a universal practice. Nor were Ministers always scrupulous toavoid conflicts of interest ...

Those with whom dealing took place may have neither sought nor receivedpreferential treatment and no conclusions of impropriety have been drawn.However ... there were a number of occasions when persons and organizations whowere involved in transactions with the Government were also involved in personaldealings with one of its members, who nonetheless participated in and sometimesdominated the official decision-making process.

Frequently there was no disclosure, and the attitudes and practices adopted insideand outside Cabinet effectively obstructed the details from becoming generallyknown." (Fitzgerald Report, p.91).

7.15 The need for a Code of Conduct was also recognised by the CJC in itsrecent report on South Coast Land Developers. The CJC recommended:

"Local Authorities should be assisted in establishing a uniform andcomprehensive code of conduct." (CJC 1991, p.130).

7.16 In a recent report, ICAC considered the Codes of Conduct which apply inthe New South Wales and Victorian Parliaments and the Commonwealth,noting their concentration on conflicts of interests and observing differentapplications of those codes to Ministers and ordinary Members. (ICAC,1991b). The Report concluded that Codes of Conduct have theirlimitations, but at least provide guidance to Members who otherwise areexpected to "learn on the job" how they should carry out their distinctiveand sometimes competing roles. That Commission declined to propose adraft Code for Members, referring with approval to the 1979 Report of theCommittee of Inquiry into Public Duty and Private Interest (the BowenCommittee Report) as a starting point.

7.17 The Report of the Bowen Committee identified the problem of prescribingstandards of conduct for elected officials in these terms:

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"Rarely has there been any attempt to bring ... together ... a comprehensive systemwhich deals with all aspects of conflict of interest problems and regulates theaffairs of all categories of officeholders. This has been in part due to the problemof identifying interests that do or may give rise to conflicts of interest - it is much

easier to draw up rules governing pecuniary interests. In part it has been aconsequence of constitutional principle. Under the Westminster system, theexecutive and the legislative branches - and the judiciary as well - are separateand the legislature enjoys a certain paramountcy in principle and experiences adegree of subordination in practice. In the United States they are separate andco-equal by design and the upper levels of the executive branch are manned byrelatively short-term political appointees. In the Westminster model Ministershave the characteristics of the elected Members of Parliament from whose ranksthey are selected, and some of the characteristics of public servants who form thepeak of a party-neutral, career public service pyramid. Therefore, it has beendifficult to lay down common measures for all categories of officeholders. It is notsurprising that, given these constitutional difficulties, the regulatory machineryand procedures, even when related only to pecuniary interest, are often patchedtogether and offer at best incomplete solutions." (1979, p.18-19).

7.18 The Bowen Committee Report concluded that " ... there is little wrong withAustralian public life" (1979, p.19), a conclusion which a decade later theFitzgerald Inquiry called strongly into question in Queensland. The ICAChas raised similar concerns in various of its reports; the Report of theParliamentary Standards Committee (the "Beazley Committee") inWestern Australia, in relation to the personal conduct of politicians (asdistinct from the institution of Parliament) was similarly concerned.

7.19 A common thread can be identified in most such discussions of "politicalethics". This is the concern that the commonly-accepted standards ofethical behaviour which may be expected of individuals, do not seem to beseen as relevant to elected public officials acting in their official capacity.Professor Max Charlesworth in a recent public lecture on "Ethics in PublicLife" in Brisbane put the problem thus:

"... After saying that politicians should not receive bribes nor divert public fundsto their own use, nor tell lies, nor act contrary to the rules of parliamentaryprocedure, what else of ethical import remains to be said? Is there a place for anethics of political life? In a recent radio program a number of politicians wereasked about the need for a parliamentary ethics committee which would look atthe ethical implications of their activities as politicians . Most of the politiciansseemed a little nonplussed by the suggestion and spoke as though they didn' t quitesee how ethical considerations might apply, or even be relevant to , what they didas politicians . Ethics was what one learned at one 's mother's knee about beingsincere and honest and truthful and just, and there was, it seemed to be assumed,no ethical or moral considerations which were peculiar to political life.

I suspect that the politicians, ... were identifying ethics with personal ethics, andthat what they were implicitly objecting to was the simplistic assumption that onecould directly apply the criteria of personal ethics to a public activity like directlyapply the criteria of personal ethics to a public activity like politics. (One mightcompare the assumption that one can apply the ethical criteria governing anindividual person's right to self-defence to conflict and warfare between nationstates .)" (Charlesworth 1991, EARC file 017/183).

7.20 Elected representatives are, in principle if not always as a matter of legalfact, the managers of our system of government. Any Parliament orCouncil in Queensland which discourages serious consideration of theethical issues implicit in the role of an elected representative, or fails topractise publicly the ethical standards its community expects to see, orwhich is derelict in providing leadership expected in relation to justice,fairness , accountability and the faithful pursuit of the public interest, canexpect to be called to account. The integrity of those who govern is centralto the legitimacy and authority of all levels of government and to oursystem of democratic responsible government itself:

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"1 don't need to tell you that respect for those engaged in public life in recent timeshas suffered enormously. The Sydney Morning Herald ran a series in February1992 called `States of Disgrace, going through each of the States in turn dealingwith what were unfortunately quite appalling lapses of the standards of which thepublic is entitled to expect by politicians of all parties over a wide range ofactivities.

At the end of the day each of us in a political party wants to be able to liveamongst our fellows in the community knowing that when they hear we areinvolved in the National Party - or indeed any other - that will not become animmediate invitation to treat us with contempt or the assumption that we arealmost certainly crooked and the only thing that's really in issue is how long itwill be until somebody gets the evidence to [prove] it. " (Russell (S39)).

7.21 To the Commission it seems inescapable that if the system of electedgovernment is to work effectively, the ethical standards of elected officialsneed to be declared publicly, and a continuing effective processdisciplining breaches of those standards needs to be developedimplemented.

forand

7.22 Recourse to the ballot-box every two or three years has been shown to belargely ineffective as a process for achieving such discipline.

7.23 Professor Charlesworth put this point unequivocally:

" ... I have been arguing for a widening of the concept of ethics to include thecontext within which ethical decisions are made. We should consider not just themorality of insider trading in business but also the context of the `market' withinwhich such practices take place. So also in political ethics we should be concernednot just with particular cases of political corruption but also with the wholeframework within which political processes take place, for example, the liberaldemocratic society and the relationship between law and morality that ought toobtain in such a society, the notion of the common good in such a society, politicalparties, politics in a multi-cultural society, and the place of single issue politicsetc. It will be obvious that my view of business ethics and political ethics and ingeneral the ethics of public life, is extremely wide with a very broad agenda.

All these suggestions are likely to remain so much pious rhetoric if there are noinstitutional means for giving them practical expression ." (Charlesworth1991, EARC file 017/183).

General Issue

7.24 The Issues Paper asked about the ethical standards which ought to applyto elected officials.

Issue 3.43 - Are there differences between the ethical standards which canreasonably be expected of elected representatives (eg. Members of Parliament,councillors) and those which can reasonably be expected of appointed publicofficials (eg. public servant, Judges, Town and Shire Clerks and independentstatutory office-holders such as Commissioners or the Ombudsman)? If so, whatare they?

7.25 The Issues Paper discussed the proposition that questions of ethics applydifferently to elected officials, in recognition of their ultimateresponsibility to an electorate.

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EVIDENCE AND ARGUMENTS

7.26 (a) "We can see no justification for differing ethical standards between electedrepresentatives and appointed officials. The important issue here should be thequality and integrity of the government /administration service delivery, not thepenalties / motivations behind the actions of the public officials." (LivingstoneShire Council (S5)).

(b) A Sandell (S6) noted that the definition of ethics in Issues Paper 15

included "honest", "openness ", and "integrity". He commented: "It isdifficult to accept that there are varying standards or degrees of honesty orintegrity. "

(c) "There appears to be no reason why ethical standards should vary between electedrepresentatives and Public Officials." (Bundaberg City Council (S11)).

(d) "The majority of Departments were of the view that there was no reason todifferentiate between the ethical standards that should apply to appointed publicofficials and elected representatives. However, when calculating the level ofdiligence to meet the standard of ethics by an officer to be applied, the notion ofequality of standards should be qualified by taking into account the additionalresponsibilities and loyalties of certain groups e.g. elected representatives' partyloyalty and lawyers' obligations to the courts, as well as the level and importanceof a position.

One Department proposed that the standards for elected representatives should beoutlined first because they set the agenda for the public sector. " (JointSubmission (S15)).

(e) Cr H Schwabe (S18) saw a need to have different ethical standardsfor elected Members and public officials.

(f) Dr G Davis of the PSMC (T23) observed at the Public Seminar thatcertain ethical principles may be fundamental to the roles of bothelected officials and non-elected officials but the manner in whichthose principles will be applied will depend on the specificresponsibilities and context of each official:

"... we behave ethically, I believe, because we operate from liberal and democraticbeliefs. These beliefs recognise individual liberty, but also the necessity ofconstraining such liberty if it provides an opportunity to exploit others. Thosewho can legitimately coerce must be held accountable for their actions asprotection against tyranny. Those who serve must do so with equality andfairness as their watchwords. Now, it may seem a long way from concerns abouttyranny to rules preventing public officials benefiting personally from frequentflyer schemes or driving their government car on the weekend. But while ethicsare grounded in abstraction, they are realised in a particular setting."

(g) " ... the same ethical standards should apply to elected representatives andappointed officials, regardless of their rank.

However, there needs to be recognition that those in more responsible positionswill, or course, find themselves making discretionary decisions more often, withmore crucial consequences, and in circumstances peculiar to each particularoffice." (CJC (S29)).

ANALYSIS OF EVIDENCE AND ARGUMENTS

7.27 There was general support in submissions that there should be a set ofethical standards to be required of elected representatives. Submissionsdiffered on whether these standards should be the same as those forappointed officials or whether there is a core set of standards which shouldapply equally to both categories of officials.

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7.28 Clearly non-elected officials are expected to observe high standards ofhonesty, diligence, courtesy to the public, scrupulous concern for the publicinterest, and respect for the law. It is also the case that elected officialsare expected to observe the same ethical values.

7.29 The key to this issue may well be one more of semantics, or at leastcontext, than substance. Perhaps there is a significant misunderstandingof what may be meant by the term "ethical standards". Ethical principlesstated at a sufficiently general level of abstraction could be appropriate toboth levels of public officials. What may be different is not the ethicalprinciples themselves but the application of competing principles to thediffering circumstances which will be encountered by officials in the courseof their different types of official duties. For example, Ministers of theCrown are required to make decisions, or to choose policy directions, whichusually involve a greater level of complexity in the resolution of conflictingdemands, than do line managers.

7.30 In the view of the Commission, many of the submissions demonstrate adegree of scepticism, not about whether the particular ethical principlesobserved by politicians are different from those of the community at large,but whether the various important principles are observed to an acceptableextent in the complex trade-offs and compromises which are seen to betypical of high-level political decision-making.

7.31 It could hardly be otherwise. In the absence of a published ethicalstandard, and faced with only the public facts of a decision, the public (andother officials) might be excused for being uncertain of the ethical integrityof the decision maker. This may be the basis of some of the demands for aCode of Conduct for politicians: reassurance that the rules of the game arein fact the same for all players:

"In a very real sense then ethics is, in practice, `the art of the possible' andcasuistry and balancing and negotiation and compromise are inescapable. Thisaspect of ethics in practice is sometimes the cause of misguided cynicism about thepolitical process. Many people affect a deep scepticism about politics andpoliticians: as the saying goes, politicians are just ahead of child molestors in thepopularity poll. ... However, when people are asked why they think politics is a`dirty business' their cynicism seems to be largely based upon the fact thatpolitical action involves compromise and the balancing of values and interests. Inother words, they seem to be in the grip of the misleading model of ethicalreasoning I mentioned before as the unproblematic application of generalprinciples to particular issues with the expectation that for every moral problemthere is, in principle at least, a single and simple solution available."(Charlesworth 1991, EARC file 017/183).

Standards of Conduct

MEMBERS OF THE LEGISLATIVE ASSEMBLY

7.32 Writing of Australian parliaments in 1986, David Solomon observed:

"Australian parliamentarians may work hard and be well paid for their labours,but they do not enjoy great public esteem. Public opinion polls show that federalpoliticians rank quite low on a scale of occupations for 'honesty and ethicalstandards'. While doctors, dentists and bank managers rate over 60 per cent,federal politicians were down to 13 per cent in the 1975 poll. More surprisingly,the rating of politicians has slumped over the past decade. In 1976 their ratingwas 19 per cent. No other occupational group, apart from state parliamentarians,had undergone such a substantial fall in public perceptions." (1986, p.123-4).

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7.33 The disclosures of a considerable number of official inquiries into aspectsof parliamentary and government activity in Queensland and elsewhere inAustralia since Solomon wrote can only have served to worsen publicopinion. Standards of conduct must be set at a high level, publicised, andbe seen to be adhered to if public confidence in and respect for governmentis to be restored.

7.34 In the Legislative Assembly the Standing Orders of Parliament serve, to alimited extent, to identify levels of acceptable behaviour which arerequired of elected representatives. For example, Members typically swearan Oath of Allegiance to the Crown, are prevented from voting on aquestion in which the Member has a "direct pecuniary interest", areforbidden to use unbecoming language, and are required to observe theprivileges of the Parliament.

7.35 Some Commonwealth countries which share Westminster parliamentarytraditions have in the past decade developed specific legislation-basedCodes of Conduct for Members. Others have codes independent oflegislation. Such codes sit alongside both the Parliament's determinationin relation to parliamentary privilege and the Criminal Code. The purposeof such Codes is not to create honesty, but to provide a generalisedframework which identifies minimum agreed standards of conduct inoffice, against which specific situations and actions may be assessed,thereby obviating the need to reconsider what constitutes acceptableconduct afresh every time a Member's conduct is challenged.

7.36 The Bowen Committee observed in its report:

"The case for having such a collection of rules of conduct was made, with anecessary qualification, by the Prime Minister's Committee on Local GovernmentRules of Conduct (the Redcliffe-Maud Committee) in Britain:

Rules of conduct cannot create honesty; nor can they prevent deliberatedishonest or corrupt behaviour. Rather, they are a framework of referenceembodying uniform minimum standards. Their special value is insituations which are intrinsically complicated, or are new to theindividual concerned, where they provide a substitute for working out theright course of action from first principles on each occasion.

This view of the nature and purpose of a Code of Conduct has the Committee'sendorsement. Here it may be noted that the Joint Committee [of the AustralianParliament] on Pecuniary Interests of Members of Parliament [the `Riordan'Committee, 1975], although commenting in a somewhat different context,expressed the opinion that:

a precise and meaningful code of conduct should exist ... By s ecifying aset of basic principles which Members of Parliament should observe,Members would be reminded that their ethical obligations to thecommunity do not cease entirely be declaring their interest." (1979,p.29).

7.37 The report of the Commonwealth Parliamentary Association Study Group(1989) deals at length with the subject of Codes of Conduct for Members ofParliament in Commonwealth Countries. The report recommended infavour of the establishment of Codes of Conduct for Ministers andMembers:

" ... as an essential step in tackling the problems of conflict of interest ... [and] ...in order to improve public confidence in the integrity of government and to ensurethat everyone including the Ministers (are) fully aware of the standards expectedof Ministers , the compilation and publication of these standards is required."(1989, para.5.7).

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7.38 Ian Temby, Commissioner of the NSW ICAC , observed in a report on theactivities of a Member of Parliament in relation to the interests of aconstituent:

I am informed that little is done to instruct or advise new Members ofParliament as to how they should carry out their `distinct and some timescompeting roles', and in particular resolve competing demands. I understand acertain amount is done by parliamentary parties, and of course new Members canand do turn to the more experienced for counsel. Otherwise they simply learn onthe job. The guiding principle seems to be that a combination of personalattributes and instinct will get them through in the first few years.

This cannot be good enough. There is hardly any organisation of substance inmodern Australia which does not have an induction program for new entrants.The guiding principle behind such programs is that the newcomer needs to beinculcated with the aims and mores of the organisation, and also be introduced tothe formal rules. The Parliament is such an important institution that surelymore should be done by it to help ensure that new Members do the right thing,and generally discharge their multifarious functions in a manner which is proper,efficient and effective. That should rebound to the public good as well as help theindividuals concerned." (ICAC 1991b, p.33).

7.39 In that report, Mr Temby noted a submission he had received from theSpeaker of the NSW Parliament, the Hon Kevin Rozzoli, who accepted thatCodes of Conduct in areas of public activity have become standardpractice. Mr Rozzoli proposed a 12 item list as a guideline for a code forMembers of Parliament, in the following terms:

"1. A Member has a primary role to carry out the duties and obligationsdevolving on that person as a Member of Parliament.

2. A Member should act in the public interest.

3. A Member should always act in a manner which upholds the dignity ofpublic office and the Parliament.

4. A Member should treat all persons seeking assistance withoutdiscrimination.

5. A Member should make every endeavour to assist those who seek help,consistent with the need and urgency of the matter and its relevance to thejurisdiction within which the member operates.

6. A Member should avoid any situation in which a private interest mayconflict with a public duty.

7. A Member should not act in any way which induces a financial benefit tothe Member or creates a personal benefit in any other form which might inany way tend to influence the Member in the conduct of his or herparliamentary duties.

8. A Member should avoid any situation in which the appearance may becreated of another person seeking to exercise undue influence over theMember in the carriage of parliamentary duties.

9. A Member should not advance a private interest by the use of confidentialinformation gained in the course of public duty.

10. A Member should not receive any fee, payment, retainer, or reward orpermit any compensation to accrue to his beneficial interest for, or onaccount of or as a result of the use of, his or her position as a Member.

11. A Member shall comply fully and honestly with the requirements of theRegister of Pecuniary Interests.

12. A Person receiving benefit should publicly declare that benefit ." (ICAC1991b , p.56).

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7.40 These proposed guidelines replicate fairly closely the provisions which aretypical of Codes of Conduct for Members of Parliaments in Commonwealthcountries. In general such guidelines require Members to conductthemselves so as to:

(a) avoid conflicts between public duty and private interests;

(b) act fairly in the exercise of official functions and duties;

(c) avoid using public office for private gain;

(d) maintain or enhance public respect for and confidence in theintegrity of the government; and

(e) avoid having their personal integrity called into question.(Commonwealth Parliamentary Association Study Group 1989,para.5.1).

7.41 The Parliament of Victoria has enacted the Members of Parliament(Register of Interests) Act 1978, containing provisions which, in addition todealing with pecuniary interests, sets out generalised requirements whichclosely reflect the general Commonwealth principles summarised above.

7.42 The Commission supports the idea that elected officials would benefit fromthe development of a relevant formal Code of Conduct, and that such acode would be in the public interest. The Commission recognises that theresponsibilities and accountabilities of MLAs and Local Authorities differsignificantly from those of appointed officials, reflecting their differentroles and functions. In consequence, the specific content of any Code ofConduct for elected officials must recognise those differences, both in theadvice and requirements set down in the body of the code, and in theprocedure provided for developing and implementing the code.

7.43 The Commission notes that the majority of submissions to this review, andcontemporary Australian practice, support the contention that, as far asfundamental ethical values are concerned, the principles which are toapply to elected public officials should be the same as those governing theofficial conduct of officials to the extent that this is possible.

7.44 Professor Gerard Carney of Bond University has completed a project forthe Commonwealth Parliamentary Association, in which he analysed thevarious Codes of Conduct, and the conflict of interests provisions inparticular, which have been adopted in the parliaments of allCommonwealth countries.

7.45 In a recent journal article, Professor Carney argued that registration of anelected Member's pecuniary interests, without ad hoc declaration, isunlikely to prove an adequate mechanism for the protection of publicintegrity:

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"As with all mechanisms which are designed to tackle corruption and misconduct,none will eradicate such behaviour. The most one can hope for is that they willdeter corrupt practices or misconduct, assist in their detection and imposeappropriate safeguards. An obligation cast upon Members and Ministers to madead hoc disclosure of personal interests which conflict or appear to conflict withtheir public duties clearly relies on their integrity for its observance. Some mayargue that this is a futile exercise since no dishonest Member or Minister willmake the necessary disclosure. Yet, it is submitted that an obligation of ad hocdisclosure serves an important role as part of the legal infrastructure forencouraging and reinforcing the integrity and accountability of government. Itprovides a procedure by which conflicts of interest can be officially identified andresolved. As well, it becomes a recognised standard of conduct which serves thedual purpose of being a constant reminder of the standard of conduct expected ofMembers and Ministers, as well as being a benchmark against which their actualbehaviour can be judged.

There appears to be an urgent necessity in Australia for an effective obligation ofad hoc disclosure to be imposed on Members and Ministers. Except for the rangeof sanctions able to be imposed, it is probably unimportant whether the obligationis imposed on Members by a House resolution, Standing Orders or Act ofParliament, or on Ministers by a Ministerial code of conduct or Act ofParliament. What is important is that the obligation is drafted in sufficientlywide terms to cover the conflicts of interest which may arise in public office."(Carney 1991, pp.37-8).

7.46 The Commission agrees with this view and has proposed a generalapproach to providing an effective way of identifying Members' relevantinterests in section 6 (Integrity) of the outline Code of Conduct for ElectedRepresentatives (Appendix G of this Report).

7.47 Earlier in this Report the Commission has recommended a set offundamental ethical principles ("obligations") to underlie any Codes ofConduct developed for appointed public officials. The Commission believesthat the obligations are so important to the maintenance of good standardsof government and public administration and public confidence in thelegitimacy of government, that they should explicitly apply equally toelected representatives at both the State and local government levels. Theobligations are:

(a) respect for the law and the system of government;

(b) respect for persons;

(c) integrity;

(d) diligence; and

(e) economy and efficiency.

7.48 The detailed interpretation of these fundamental obligations is set out inthe outline Code of Conduct for Elected Representatives (Appendix G).

7.49 The Commission has already noted the introduction of the Register ofMembers' Interests. This register requires registration of an exhaustivelist of interests and applies to all MLAs including Ministers. TheCommission does not consider that there should be any additionalregistration requirements for Ministers as the list of matters to bedisclosed is appropriate.

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LOCAL GOVERNMENT

7.50 In general the issues identified in the preceding section in relation toMLAs apply equally to elected Members of local government Authorities.However, a number of specific matters are addressed in this section.

7.51 At the beginning of this chapter the Commission noted that the provisionsof the LG Act which deal with Members ' conduct do not formally constitutea Code of Conduct . It is desirable that such gaps in the legislation shouldbe closed.

7.52 The Commission considers that s.14(4) of the LG Act should be amended toprovide for the registration of Members' interests, by means of a publicregister equivalent to the register for MLAs proposed by the Commissionin its Report on Review of Guidelines for the Declaration of RegistrableInterests of Elected Representatives of the Parliament of Queensland (1990,90/R1) (Report on Review of Guidelines).

7.53 Local Authority Members should be required to register relevantinformation at the first meeting of the Local Authority after an electionand to notify the registrar of any alterations to their interests within 30days of the changes.

7.54 The register should be a public document. It would exist to inform thepublic of the pecuniary interests of Local Authority Members, so that realor potential conflicts of interests are more easily discerned. Restrictingaccess to a register would defeat its purpose.

7.55 There is likely to be opposition to this proposal, particularly from LocalAuthority Members. Understanding of the functions of a pecuniaryinterest register appears to be elusive; publication of the document wouldhelp achieve its purpose. Elected officials need to accept that their right toprivacy in financial and business or professional matters is qualified bythe extent to which their private interests may have impact upon theirpublic duties.

7.56 The Town or Shire Clerk should be the registrar. It should be mandatoryfor any breaches of the amended section of LG Act to be reported by theClerk to the CJC. The Clerk's position would be protected byWhistleblower legislation as recommended by the Commission in itsReport on Protection of Whistleblowers (1991, 911R4).

7.57 The Clerk (and other senior officials responsible to the Authority) shouldbe required to declare in confidence their interests to the Council. If theCouncil considers that a senior official is in breach of the conflict ofinterests provisions of the LG Act the Council should by resolution referthe matter to the CJC. The interests of senior officials should beregistered (see paras. 5.42 - 5.66) but kept confidential under threat ofpenalty prescribed in the LG Act unless the official has been charged witha relevant breach of the LG Act, in recognition of the fact that seniorCouncil officials are responsible to the Council.

7.58 A Member of a Local Authority should be required by the LG Act to declarea pecuniary interest in any matter under consideration or being debated bythe Local Authority. A Member should be required to actually leave themeeting while a matter in which they have an interest is under discussion,not merely refrain from taking part in the debate.

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7.59 The LG Act should explicitly require Members of Local Authorities todisclose whether they have a pecuniary or other significant interest in amatter before the Council for a vote and to leave the meeting if theirinterest renders them ineligible to vote.

7.60 The Commission has noted the findings of a recent ICAC Report (ICAC1992) into breaches of pecuniary interest provisions of the NSW LocalGovernment Act 1919. The ICAC conclusions are similar to theobservations of this Commission. For example ICAC noted:

'At the present time breach of the pecuniary interest provisions of the LocalGovernment Act is an offence. It is left to the Councils to police those provisions,and prosecutions are taken before Magistrates. The provisions are not enforcedeither frequently or consistently. A great deal of politics often comes into decisionswhether to prosecute, to appeal, to pursue cost orders, and so on. SometimesCouncils have not pursued matters where that course should have been followed.Sometimes prosecutions have been used as weapons in the course of a personalvendetta.

When prosecution action is taken, the process is slow and expensive, and generallyleads to no useful outcome from the viewpoint of the residents - those whomCouncils are meant to serve." (1992, p.iv)

7.61 ICAC pointed out that there was already a local government pecuniaryinterest register in NSW which, except in respect of enforcement, wassatisfactory:

"The Report concludes that the pecuniary interest provisions should be retained, inmuch their present form. However enforcement is a different matter - radicalchange is called for. It is recommended that breach of the provisions leads todisciplinary consequences, ranging from disqualification to counselling, thatinvestigation be undertaken by officers from the Local Government Department,and that an independent Local Government Tribunal be established to hear suchmatters." (1992, p.iv-v)

7.62 The situation is a little different in Queensland. In the Commission's viewthe pecuniary interests provisions in the LG Act are wholly inadequateand not enforced. Hence the Commission has proposed the adoption of afull Register of Interests along the lines of the Legislative AssemblyRegister. The introduction of a local government Register will require aregime of sanctions for breaches of the relevant LG Act provisions - in theCommission's views these sanctions should in the short term obviate theneed for a formal Tribunal as proposed by ICAC at least until anassessment can be made of the Register's effectiveness.

7.63 In respect of tenders made under s.4 of the LG Act the Commissionbelieves that there is a need for special attention. Because of the potentialfor conflicts of interests the Commission believes it should be arequirement of contractors that they attach to their tender documents astatement of any known conflicts of interests which may affect the tender.This statement could include the name of any Council Member(s) or seniorCouncil official(s) who is associated with the contractor.

7.64 Effectively enforced legislation incorporating such requirements should,over time, assist the growth of an ethical approach to local government. Ifthe purpose of the legislation is understood, there should be at least anawareness of the need for open processes in government decision-making,and the requirement that Members act, and are seen to act, disinterestedly.

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7.65 In the Report on Review of Guidelines for the Declaration of RegistrableInterests of Elected Representatives of the Parliament of Queensland theCommission recommended that MLAs not be:

.. entitled to vote in any division upon a question (not being a matter of publicpolicy) in which the Member has a direct pecuniary interest not held in commonwith the rest of the subjects of the Crown. The vote of a Member may not bechallenged except on a substantive motion moved immediately after the division iscompleted, and the vote of a Member determined to be so interested shall bedisallowed." (1990, p.18).

7.66 This is regarded as sufficient to cover MLAs for conflicts of interests whilenot restricting their voting rights to such an extent that the LegislativeAssembly becomes unworkable. The argument upon the words "not being amatter of public policy". In the Report on Review of Guidelines theCommission noted that on a matter of public policy the benefit is a generalone, whether the matter affects the whole public or particular groups inthe community. The Commission stated:

"A director or shareholder of a public company may vote on a public billregulating that company. Equally Ministers may vote against a motion to reducetheir own salaries. In both these instances, though the pecuniary interest isprivate and individual, the motion relates to public policy... " (p.17).

7.67 However, a greater difficulty exists in judging Local Authority Members'ethical voting rights on matters of public policy. Due to the small size,frequently non-party political composition of Local Authorities and thelack of a cabinet structure, Members of Local Authorities tend to havemore direct influence in decision-making than MLAs.

7.68 A large proportion of the work of Local Authorities consists inevitably oflocal public works projects. The closeness of Local Authority Members tothe matters considered by Councils can present problems. For example, acouncil vote to approve funding for the sealing of a dirt road is a questionof public policy, yet the Member advocating the project, and intending tovote on the matter, may be one of the residents who live along the road,and thus a direct beneficiary of the decision.

7.69 It is arguable whether the Member should nevertheless be entitled to voteon such a matter. Similar difficulties may arise when Members whocontinue to practice as professionals or have business interests withintheir authority's jurisdiction wish to be involved in deliberations andvoting on the Authority's contractual terms, which would haveimplications for their business if it sought to supply goods or services tothe Council.

7.70 Section 14(4)(ia) of the LG Act states:

"For the purposes of this subsection, the interest that a member may have in-

(b) a contract or proposed contract or matter as a ratepayer, elector orinhabitant of the Area or as an ordinary user or consumer of any service orthing;

or

(c) any matter relating to the terms on which the right to participate inany service, including the supply of goods, is offered for general use orconsumption,

shall not be treated as a pecuniary interest. "

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7.71 This section of the Act is intended to cover the same matters as thosecovered by the provisions regarding voting by MLAs on matters of publicpolicy. It is thought to be a necessary measure to make local governmentworkable. Obviously at the local level almost any decision of Councilrelating to public works or civic facilities could be taken potentially toinvolve a conflict of interests. The requirement that Members in effectwear two hats in such circumstances is unsatisfactory. The Commissionconsiders that this matter should be examined in the review of the LG Act,and suggests that the matter be addressed in the Code of Conduct.

7.72 In respect of MLAs and Members of local government councils theCommission considers that development and implementation of such codesshould be the responsibility respectively of the Parliament and Councils(in conjunction with the LGAQ and the Minister responsible for the LGAct).

7.73 The Commission has already concluded that a Register of PecuniaryInterests should be developed for Members of Local Authorities with thesame provisions as currently apply to MLAs (see Chapter Five, para.5.75).The draft Code of Conduct for Elected Representatives is in Appendix G.

RECOMMENDATIONS

7.74 The Commission recommends that:

(a) elected officials , Members of the Legislative Assembly and Membersof Local Authorities, should be subject to the same fundamentalethical obligations as appointed public officials .

(b) The Legislative Assembly should be responsible for implementationof the Code of Conduct for Elected Representatives in relation toMembers of the Legislative Assembly.

(c) Each Local Authority should be responsible, subject to any relevantprovisions of the Local Government Act 1936-1991 , for theimplementation of the Code of Conduct for Local Authority Members.

(d) Contractors tendering in accordance with s.19(4) of the LocalGovernment Act 1936-1991 , where the tender is of a class requiringconsideration by a meeting of a Council or a Commit-tee of a Council,shall be required to attach to the tender a statement of any knownconflict of interests existing at the time of submission of the tender.

7.75 Recommendation (a) has been implemented in the Public Sector Ethics Bill(Part 3) (Appendix E). Part 4 of the Bill provides for the preparation of aCode of Conduct for Elected Representatives at the request of the Speaker(recommendation (b)). Implementation of recommendations (c) and (d) willrequire amendment of the LG Act.

Ministers' Conduct

7.76 Under the above proposal Ministers, because they are Members of theAssembly, would be subject to the general Code of Conduct for Members.The Commission is of the view that in addition, the specific roles andresponsibilities of Ministers should be covered by special provisions in thatCode of Conduct.

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7.77 At present, Ministers in the Queensland Government are subject to a"Code of Ethics" promulgated by the Government (as distinct from theParliament) in the draft Cabinet Handbook.

7.78 In the current version of the Ministers' Code of Ethics (advised by thePremier to be that of December 1989 in a letter to the Commission on 7April 1992 (EARC file 017/277)), there are binding requirements onMinisters to recognise that:

"Of all the positions of trust the people of Queensland are capable of bestowing onindividuals, none carries so much discretionary power as that of Minister of theCrown. For this reason, Ministers accept that the standards required of them arehigher than those which apply to other office bearers." (Queensland, CabinetOffice 1990, p.89).

7.79 Under the terms of the December 1989 Code, Ministers are required to:

"1 Provide a summary of all their business, financial and other personalinterests, and those of their spouse, dependent children and any otherdependants, and this summary will be entered in the register of pecuniaryinterests . Ministers will ensure that the register is kept up to date. Theregister is held in confidence by the Secretary of Cabinet on behalf of thePremier as Chairman of Cabinet.

2 Resign or decline membership of boards of public companies and declaremembership of, and the nature of, any private companies.

3 Divest themselves of shareholdings in any company in respect of which aconflict of interest exists or could be reasonably suspected to exist.Ministers will advise the Premier should they find themselves in asituation of conflict of interest. This advice will be tendered at Cabinetand a record made by the Cabinet Secretary that the Minister so declaredhis pecuniary interest or conflict of interest and withdrew from theCabinet Room.

4 Undertake not to use information obtained in the course of official dutiesto gain for themselves or any other person a direct or indirect financialadvantage. They will not solicit or accept any benefit in respect of theirexercise of their discretion either for themselves or any other person. Theywill not accept any gift offered in connection with the discharge of theiroffice except as permitted under the guidelines.

5 Avoid falling under an obligation to those in the hospitality or travelindustry. Therefore, a Minister will not knowingly accept travel orhospitality sponsored wholly or partly by any person, organisation,business or interest group which carries on the business of travel orhospitality, or which makes part of its profits out of travel or hospitality,unless the travel or hospitality is provided at rates which are openlyavailable to groups of people other than Ministers of the Crown, or byreason of its triviality could not reasonably be construed as creating anobligation.

6 Ministers accept that they must resign or stand down from their positionsif they are themselves under formal investigation by any governmentinstrumentality in respect of serious impropriety or alleged illegalbehaviour of a serious nature. Should any Ministers be so investigatedand cleared by such an investigation, they may return to their formerpositions.

7 Act in conformity with the Westminster principles laid down in theCabinet Handbook.

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In particular, Ministers acknowledge that the collective decisions ofCabinet are binding on them all and that if a Minister is unable topublicly support a Cabinet decision , the proper course is to resign fromCabinet. Ministers note that a precondition for the operation of thisconvention is the understanding that Cabinet proceedings will ordinarilybe secret. This enables Ministers to provide Cabinet colleagues withdetails of Cabinet Submissions six (6) days before Cabinet except inextraordinary circumstances, thus allowing decisions to be trulycollective . This also requires that Ministers do not pre-empt the decisionof Cabinet by publicly announcing or canvassing details of a submissionbefore it goes to Cabinet without the consent of the Premier.

8 Accept that they and their public servants are bound by the Caretakerconvention , in particular, that during the period after the issue of thewrits for an election , the government should not, except in cases ofurgency, make any new significant appointments , enter into new contractsor undertakings that would bind an incoming government , or embark onany new policy initiatives that would bind an incoming government.Minister note that breach of this convention justifies an incominggovernment reviewing such appointments, contracts or initiatives.

9 Accept that the talents and abilities of public servants should bemaximally available to the people of Queensland . Ministers will use theirjudgement in seeking to employ the talents of public servants to the fullest,whatever the politics of those public servants may be, provided only thatthose public servants behave in accordance with the Westminsterconvention of public service neutrality . Public servants behave inaccordance with this convention if it is clear , by their words and deeds,that they see it as their role to work actively and positively to implementthe mandate of the elected government ." (Queensland, CabinetOffice 1990 , pp.89-90).

7.80 The Commission notes that the majority of the requirements of theMinisters ' Code are consistent with or duplicate requirements proposed inthis Report to be included in the Code of Conduct for ElectedRepresentatives . The Commission considers that the ethical obligationsspecifically relating to a Minister 's status as an elected Member or arisingfrom their executive functions , should be appropriately addressed in theproposed Code of Conduct for Elected Representatives.

7.81 In general terms, the current Ministers' Code deals with the followingmatters or types of conduct, as well as providing certain explanatorymaterials:

(a) conflict of public duty and private interests (eg. pecuniary interest,directorships);

(b) impartiality and objectivity in performing executive functions;

(c) dealings with appointed and employed officials;

(d) public confidence in the integrity of government;

(e) disclosure and use of official information; and

(f) service in the public interest.

7.82 In the current form of the Ministers' Code of Ethics is a suitable statementof the fundamental principles which should govern Ministerial conduct.That Code's obligations reflect appropriately the Westminster traditionthat Ministers are accountable to the Parliament for the conduct of theirexecutive responsibilities. Otherwise, the fundamental ethical obligationsof a Minister are similar to those of any Member of the Parliament.

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7.83 The Commission is of the view that a single Code of Conduct for all electedrepresentatives should apply. However, the proposed Code of Conduct forElected Representatives should distinguish properly the additional ethicalobligations owed by a Minister to the Parliament by virtue of occupyingthe office of Minister from the general obligations owed by all otherrepresentatives. Such additional obligations are also distinct from theparticular administrative or management rules adopted from time to timeby particular Governments in relation to, for example, Cabinet solidarityand confidentiality, party loyalty, procedures for dealing with cabinetbusiness, appointments to Cabinet office, employment of Ministerial staff,and the rights and entitlements of Members, including Ministers, inrelation to remuneration and allowances.

7.84 The Commission has noted that the Bowen Committee observed (1979,para.8.2, p.67) in the Commonwealth context that certain parts of theMembers' Code of Conduct "take on extra significance and must beenforced more stringently" in respect of Ministers. The Commission takesthe view that in Queensland the parts of "extra significance" are of suchfundamental importance that they warrant separate mention in anyQueensland Code of Conduct for Elected Representatives. TheCommission has included such specific provisions in its draft code inAppendix G.

RECOMMENDATION

7.85 The Commission recommends that the proposed Code of Conduct forElected Representatives include specific provisions governing the ethicalobligations of Ministers acting in their roles as Ministers of the Crown.These pr °ons are in addition to the ethical obligations of otherMembers .

7.86 The Co ion also recommends that the rules governing thea ative and procedural aspects of the role and functions of aMinister and their rights and entitlements not be included in the proposedCode of Conduct for Elected Representatives , but be the subject of aseparate procedural document to be developed and issued by theGovernment of the day.

7.87 The Commission has included provisions in its draft Code of Conduct forElected Representatives (Appendix G) which specify in Part 9 the SpecialRequirements in Relation to Ministers.

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CHAPTER EIGHT

A PROPOSAL FOR A PUBLIC SECTOR ETHICS REG

Introduction

8.1 This Report has made a number of recommendations which, takentogether, will if implemented significantly improve the standards ofconduct of public officials of all categories in Queensland:

(a) Chapters Two and Three concluded that a set of fundamentalobligations should apply to all appointed and elected officials. Thisset of five obligations should be common across all categories ofofficials, and any Codes of Conduct or adjuncts to these codes forQueensland public officials should be consistent with theseobligations. Chapter Three proposed separate general codes forappointed and elected officials. It also acknowledged the need forlocal rules or adjuncts to the general code for appointed officials inspecific organisations.

(b) Chapters Four, Five and Six reviewed the existing Code of Conductfor (appointed) Public Officials and made a number ofrecommendations for improving the scope and coverage of thegeneral code.

(c) Chapter Seven briefly examined the Minister's Code of Ethics, theMember's Register of Interests and provisions in the LG Act whichdeal with matters concerning the conduct of Members. It concludedthat a separate Code of Conduct should be introduced to establishstandards for all elected representatives.

8.2 The Report has noted that a major problem with the existing ethics regimein Queensland public administration is its fragmentation: there are anumber of categories of official not covered by codes; some of the existingcodes are inconsistent with one another; some codes are incomplete; littleattention has been paid to training in administrative ethics; CEOs haveapparently been unsure of their responsibilities; the provisions of existingcodes have not been used as a basis for disciplinary action; and manyappointed officials are unaware of the existence of the Queensland Code.

8.3 This chapter contains the Commission's proposed solution to these and theother problems identified in the earlier chapters. The Commissiondevelops and recommends an administrative ethics regime backed up bylegislation which should be introduced to co-ordinate, monitor and developethical understanding and behaviour within the Queensland public sector.

Towards a Public Sector Ethics Regime

8.4 As noted elsewhere in this Report, there are two major dilemmas inadministrative ethics:

(a) non-elected officials exercise power over the rights and lives ofcitizens, without in all cases being responsible to them through theelectoral process; and

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(b) the range and complexity of the matters which can raise ethicalproblems in the public sector, as a result of which it is not possibleto lay down a set of rules for every situation or every category ofofficial.

8.5 Further, because ethical problems are essentially about questions of rightand wrong in circumstances where there may be genuine disagreementsbetween responsible and well-intentioned people, a single set of absoluterules would be unlikely to be acceptable or useful, even if it could bedeveloped.

8.6 This Report has concluded that an appropriate way of dealing with thesedifficulties is to assist the public sector to develop an administrative ethicwhich reaffirms the principle that all officials - Ministers, other electedrepresentatives, career public servants and contracted executives alike -are obliged, by the very nature of the positions they hold, to act inrecognition that they are trustees of the public interest.

8.7 Ethical conduct by officials must not be seen as some discrete additionalprocess which may be "grafted on" to the system of governmentadministration. Ethical conduct by officials is necessarily part of what wein this society mean by "good government":

"The public service is part of the executive arm of Government, and as such hascustody of the information banks, the offices, and funds of the taxpayers andcitizens. [Public officials] therefore stand in a relationship of trust to thosegovernment services. The executive arm of government provides the trustees,custodians and stewards and not the beneficial owners of the people's information,offices and funds. ...

Once it is accepted that the executive arm is but the trustee of the people, the ethicsof a trustee's role can be seen to be applicable." (Wells 1991, p.6).

8.8 While the special obligations of the public official may not have alwaysbeen seen in these terms in Australia, it is probably true that publicofficials are generally recognized as being in a position of trust, and areexpected by the community to observe high ethical standards in relation tothe use of taxpayer-provided resources, information, and power.

8.9 In these respects, the public may reasonably expect the conduct of officialsto accord with the standards generally expected of any member of therecognised professions.

8.10 However, the acute difficulties faced by those supporting the developmentof an explicit ethic for the public sector in a complex political and economiccontext have been clearly identified by Professor John Langford of Canada:

"Public services find themselves politicised from the top, second-guessed bygrowing ministerial political staff, penetrated at the higher levels by imported`talent' from the private sector and at the middle and lower levels by short termcontract employees, fragmented by unionisation, decentralisation and affirmativeaction programs, beleaguered by the threat or reality of privatisation and servicereductions, harassed by the single-value agendas of ombudsmen andauditors-general, and, particularly at the crucial middle management levels,demoralised by the lack of career prospects and the abysmal managementpractices of many senior managers. Gone forever is the prospect of public sectororganisations knit together in an almost quasi-military manner by such commonlyshared traditional values as protection of the public interest, political neutrality,confidentiality, service to the public, and accountability. In this atmosphere,public servants are often afraid even to raise an ethical issue, let alone stick theirnecks out. The message is: keep your professional values to yourself and keepyour head down. It is an atmosphere in which ethical violations will becommonplace." (Langford 1991b, pp.15-6).

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Codes of Conduct

8.11 The Commission recognises these practical difficulties as a real part of thecontext in which any Code of Conduct will be tested. Accordingly, Codes ofConduct will need to be based, at minimum, on consistent and coherentprinciples which are recognised as relevant to the Queensland publicsector. A code will also need to provide a straightforward process wherebyagencies and individuals may interpret and apply those principles in theirparticular circumstances.

8.12 As has been indicated in previous chapters, the Commission is critical ofboth the existing Code of Conduct, and of the failure to develop andimplement it adequately in Queensland. The Commission has noted theemergence of a number of agency-specific codes in the public sector; moreare planned. The Commission is concerned that these specific codes,worthwhile though they often are, should not continue to develophaphazardly and in isolation.

8.13 The Commission considers that an alternative management strategy isrequired which takes account of the problems identified both by theFitzgerald Report and by recent management literature. The generalapproach to public sector ethics proposed by the Commission in thischapter meets these requirements and as far as possible does not wastethe efforts of agencies which have made a start for themselves.

RELEVANT MANAGEMENT THEORY

8.14 It has long been recognised in the management literature that the valuespublicly espoused by organisations and individuals may be significantlydifferent from the values actually practised. (See Argyris and Schon 1974,among many others, for a discussion of this problem.)

8.15 It has also been recognised that merely publishing a Code of Conductwhich identifies an organisation's desired values will not necessarily, or ofitself, cause individuals or the organisation to put those values intopractice. The Fitzgerald Report drew attention to this problem inQueensland where such codes were already present and had failed toprevent the problems the Commission of Inquiry identified.

8.16 The development of a formal statement of its core values is a valuableexercise for an organisation. It causes individuals to confront thevalues-issues involved in their jobs and in the organisation's standards:

"While almost every individual has little difficulty understanding the idea ofethics, it is not easy to define. Among the numerous attempts to explain themeaning of ethics, perhaps the best definition for the practicing manager is a setof standards by which human actions are determined to be right or wrong. ... anattempt to give coherence to organisation policies and individual behaviour;without consistent, predictable behaviour, there could be no working together.People must have a sense of confidence about the conduct of their job and theiremployer.

It is becoming increasingly clear from the mass media, public opinion polls, recentlegislation, and evidence ... that an agreement is beginning to form over the goalsto be sought in this society and the means chosen to accomp lish those goals. Itremains the difficult task of leadership to bring consensus out of the naturaldiversity present in a pluralistic society.

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Individual ethics, in a word, is a necessary, but not sufficient condition fortrustworthy behaviour in organisations ... Managers need to know what isregarded as acceptable and what is not. It is doubtful that a person canadequately function in a job without appropriate ethical standards. Can anorganisation afford to have its members trying to guess what its standards are?The public wants and deserves greater assurance that business and governmentconducts its affairs with probity . For institutions so central to society, thequestion of public confidence cannot be left to chance ." (Bowman 1981 , p.61).

8.17 However , in addition to a formalised statement of an organisation'sstandard of conduct, three other criteria need to be met if theorganisation 's code is to be put into practice effectively:

(a) An organisational context must be provided in which values can bediscussed meaningfully , and which encourages members of theorganisation to develop skills in recognising and thinking aboutethics issues. It is probable that if a code is not understood by, andseen as relevant to, all staff they will ignore it.

(b) Effective adoption must be achieved by the organisation in itspractices and structures - this includes not only the practicalexpectation that an organisation must be seen to "practise what itpreaches ", but it also requires effective sanctions against grossfailure to observe the principles of the organisation . This impliesthat the code must have sufficient force attached to it to supporteffective disciplinary action. Legislation is usually the mosteffective way of providing this.

(c) Leadership must be demonstrated by the organisation 's executivesat all levels - if the organisation's Code of Conduct is not observed bythe senior executives of the organisation , it is unlikely that othermembers will themselves comply.

Organisational Context

8.18 The perceived relevance of a code's standards will depend upon the extentto which officials at all levels are able to relate those standards, which areusually stated in necessarily abstract generalised terms, to the practicalsituations of their official roles. It is a familiar phenomenon that a groupof officials might agree about the validity of a particular statement ofethical principles for their organisation, while disagreeing about what itmeans in a specific situation. If ethical behaviour in the public sector is tobe encouraged, it must be recognised that understanding and skill willtake time to develop:

"The finest policies and designs will be limited in their effect if organisations donot develop the processes that both allow them to be implemented well, and allowconcerns, problems, and disagreements to be raised and responded to. To do thisrequires attention to two things: making ethics a legitimate topic of discussion,and developing and supporting effective communication at and between all levelsof the organisation.

Organisations must consciously act to make ethics a legitimate topic of discussion,not only for those times of crisis when a personal value is challenged or painfulcompeting claims are present, but also to allow employees to fully examine therange of options available, to anticipate pitfalls, and to explore creative ways ofresolving their dilemmas.

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But training is also necessary . ... Most specifically, individuals must be trainedto use ethical language as comfortably as they use business language. `Fair' mustflow off the tongue as comfortably as ROI.' And not only must the language beuttered with ease, it must also be used as skillfully in making an argument orchallenging a decision . And that takes training and practice ." (Toffler 1986,pp.336-40).

Effective Adoption

8.19 In relation to the second criterion, effective adoption, it is difficult tooverstate the importance of effective implementation and consistency incommunication of a code's values both inside and outside an organisation.Too often, Codes of Conduct are read (and indeed written) as though theyare intended to apply only to middle management and lower levels in thehierarchy.

8.20 For this reason the Commission stresses the need for public sector Codes ofConduct to express the ideals underpinning our system of publicadministration as a whole, rather than merely the specific behaviours tobe required of individuals:

"When faced with ethical dilemmas, people first refer to their immediateorganisation - its climate and procedures - for guidance. If the unethical acts ofothers and the lack of written policy provide a rationale for misconduct, thecurrent popularity of ethical codes seems to suggest that a formal policy can bebeneficial.

The existence of codes provides a frame of reference for organisational behaviour.Public allegiance to a code can be an important moral event in the personalhistory of an individual . Clear, specific standards on the part of the organisationdemonstrates its intent to uphold a professional ethical posture. However, themost critical and difficult part of this effort is the application of standards inorder to develop norms for ethical conduct.

It is clearly necessary to go beyond having the personnel or public relationsdepartment draw up a suitable-for-framing code of conduct.

Instead, ethical codes must be built into organisational life and made livingdocuments. Each manager must know that every one of his/her colleagues in thehierarchy has been required to adhere to the same standards as he/she must.With the leadership of the highest echelons of management, this will bring about aclimate of integrity and ethical practice that all personnel will support. The codemust be communicated and enforced. Employees must know the limits ofacceptable conduct and have an institutional standard against which to refuseunethical requests.

If the moral pattern of the organisation is not explicit for each individual,prospects of making ethical decisions and accepting responsibility on behalf of theorganisation are diminished. ... The mere presence of codes can create a falsesense of security, if they are not enforced and made a meaningful part of everydaymanagement." (Bowman 1981, pp.61-2).

8.21 The Commission is of the view that public sector ethics standards are mosteffectively established by relevant specific legislation, which alsoempowers one or more Codes of Conduct to be developed to provide specificinterpretation and explanation of those standards. The rationale for alegislative basis to the Commission's proposed ethics regime is developedlater in this chapter.

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Leadership

8.22 Thirdly and potentially the most important force for the effectiveimplementation of ethical values in an organisation is the quality of theleadership provided by its senior managers and CEOs, and by the electedrepresentatives who are responsible for it. The public expectation thatofficials will be honest, fair, diligent, committed to serving the publicinterest rather than any private interest, and concerned with economy,efficiency and integrity, applies to officials at all levels.

8.23 The form of compliance mechanisms and pressures to evade or breach theestablished standards of appropriate conduct for officials may vary, but theprinciples remain the same: the leadership role of management is crucial.Peters and Waterman (1982) have paid tribute on this matter to ChesterBarnard's 1938 work "The Functions of the Executive" on the role of theCEO in leading an organisation:

"While Mayo, McGregor, and others , including Barnard himself, were developingideas aimed at calling forth the best efforts of people down the line, it wasBarnard alone who sensed the unconventional and critical role of executives inmaking it all happen . ... Barnard's was probably the first balanced treatment ofthe management process.

Barnard was also the first (we know of) to talk about the primary role of the chiefexecutive as the shaper and manager of shared values in an organisation: `Theessential functions [of the executive] are, first, to provide the system ofcommunications; second, to promote the securing of essential efforts; and third, toformulate and define purpose.' He added that organisational values and purposeare defined more by what executives do than by what they say. `It has alreadybeen made clear that, strictly speaking, purpose is defined more nearly by theaggregate of action taken than by any formulation in words.' He also emphasisedthat purpose, to be effective, must be accepted by all the contributors to the systemof efforts. In the excellent companies , we see just that . Values are clear; they areacted out minute by minute and decade by decade by the top brass ; and they arewell understood deep in the companies ' ranks." (Peters and Waterman 1982,p.97-8).

8.24 In the Commission 's view a revised Code of Conduct will provide importantleadership in a major task identified by the Fitzgerald Report , namely therebuilding of public confidence in the integrity of public administration inQueensland . The Commission notes that a revised code must be providedit is seen to be relevant and "lived " in the everyday operations of publicsector organisations at every level including the Parliament and electedMembers of Local Authorities . Otherwise the code will be perceived asmere "window -dressing" which may allow malpractice to continue.

Public Sector Ethics Administration - Alternative Models

8.25 Previous chapters of this Report have examined whether a Code ofConduct is either necessary or viable in guiding the behaviour of publicofficials in Queensland in the performance of their official roles andfunctions.

8.26 The Commission has concluded that codes provide an importantbenchmark for standards of behaviour if they can be usefully consulted inparticular circumstances. The Commission has also concluded that thecurrent Queensland Code has serious deficiencies which warrantsubstantial redrafting, particularly in regard to implementation andenforcement.

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MODELS OF ETHICS ADMINISTRATION

Issue 4.57 Do any of the models set out in Table 2 [Table 8.1 below] provide anappropriate basis for developing and managing a code of conduct, or set of codes,for public officials in Queensland? If not, is any other model preferable. If so,why?

Issue 4.58 Are any of the alternatives set out in Table 3 [Table 8.2 below] likely toprovide an effective approach to an ethics or official conduct regime for publicofficials in Queensland?

TABLE 8.1

THREE POSSIBLE MODELS OF ETHICS ADMINISTRATION IN QUEENSLAND

Function Responsibility

Modell Model 2 Model 3

development of policy, codes and legislation OGE* PSMC PSMC/Agencies

investigation OGE CJC CJC

prosecution OGE CJC CJC

training and development OGE CJC Agencies

monitoring/evaluation PSMC CJC Ombudsman

redevelopment OGE PSMC PSMC/Agencies

* Possible independent agency, eg. an "Office of Government Ethics"

8.27 The Issues Paper canvassed a number of alternative organisational models(see Table 8.1) for a system to promote ethical conduct within theQueensland public service. The nature and powers of the agency oragencies overseeing such a system can significantly affect the outcomes.For example, these powers could be investigatory, coercive, educative oradvisory - the extent to which ethical conduct is successfully promoted willdepend on the combination of these powers adopted.

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TABLE 8.2

COMPONENTS OFETHICS REGIME

Statement of generalprinciples of Government

Statement of specific

administrative values/

requirements

Statement of specificstandards of conduct

Statutory offences andduties

. Training and explanation

Organisational

development

Mandatory training atspecific levels

Breaches handledadministratively(discretionary)

. Offences handledstatutorily (mandatory)

. Penalties

. Rewards

CONTENT OF AN ETHICS REGIME

REGIME1

REGIME2

The above regimes, represented by the shaded areas, are approximations to:

1 Commonwealth Public Service model2 Peters' & Waterman's private sector (ideal) model3 Queensland Public Service model

REGIME3

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8.28 The question of formal responsibility for the implementation of any Code ofConduct will also have implications for both the form and content of thecode and the ethical culture of the organisation or system to which thecode applies. The Commission is particularly aware of the need forinvolvement of agencies and organisations in the development of ethicalguidelines which are specific to the functions and duties of their members.

8.29 Table 8.2 (Table 3 in the Issues Paper) identifies the components of threecurrent models of ethics regimes. The models differ in their level ofspecificity - for example, the current Queensland and the Commonwealthmodels contain no requirement for training programs. The extent to whicha regime provides details of acceptable behaviour, training andenforcement probably determines its effectiveness.

Evidence and Arguments

8.30 (a) The Joint Submission (S15) advised that the majority of departmentspreferred Model 3 in Table 8.1:

because it utilises agencies which are already in place and would causeminimal administrative difficulty in implementation."

However , the submission also stated that some departmentssuggested modifications to Model 3 as follows:

"... the investigative function could be more appropriately performed by the agencyand the Ombudsman with referral to the CJC if criminal misconduct is involved.The monitoringlevaluation function could be undertaken by the PSMC/Agencies aspart of their internal check mechanisms;

one body should be responsible for training and development of policy and codes,but the same body should not be responsible for investigation and prosecution.This should be handled by the individual Agencies. "

One Queensland public service department (S15) proposed its ownmodel:

"FUNCTION

Development of policy, codesand legislation.InvestigationProsecutionTraining and DevelopmentMonitoring /EvaluationRedevelopment

RESPONSIBILITY

PSMC

Individual DepartmentsIndividual DepartmentsIndividual DepartmentsPSMCPSMC. "

In relation to the options set out in Table 8.2, the Joint Submission(S15) concluded:

"The overall preference was for a combination of the three options, which wouldeffectively include all aspects of the regimes except `rewards'.

There was some support for Regime 1.

The other options were as follows:

regime 3 including `Statement of General Principles' and `Training andExplanation'; or

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statement of specific administrative values /requirements;statement of specific standards of conduct;statutory offences and duties;training and explanation;breaches handled administratively (discretionary)."

(b) Cr H Schwabe (S18) submitted: "Option 3 [Table 8.11 comes closest to myview . The monitoring should perhaps occur through PSMC and the Ombudsman."and suggested that " ... training and explanation, and further mandatorytraining at specified levels ... " be included in the Queensland publicservice model.

(c) The PSMC (S24) argued that as it had a role in all three models, anappropriate allocation of resources to the Commission would benecessary if any were implemented . The PSMC also considered thatModel 3 in Table 8.1 was the preferable model to work from:

"Model 1 , involving the creation of an Office of Government Ethics, has theadvantage of ensuring that ,ethical issues are not ignored in the cut and thrust ofday-to -day public administration . However, it is not clear that the expense ofanother office is justified.

Model 2 posits that the Criminal Justice Commission would be the lead agency andundertake investigation, prosecution, training and development and monitoringand evaluation . It has the disadvantage of seeming to remove any responsibilityfrom the individual agency.

Model 3 recognises the diversity of roles that currently exist . It has the danger ofdiffusing responsibility to the point that no agency accepts specific responsibility forthe issue.

In all three models, PSMC is appropriately identified as having a role to play. Thequestion of the resourcing of any new role needs to be further considered . If a majorprogram on ethics is recommended, then resources will need to be allocatedaccordingly.

. The Commission 's tentative conclusion is that model 3 should be used as astarting point . As suggested in paragraph 2 of this response , there are a number ofways to promote ethical behaviour and it is appropriate that responsibilities beshared across agencies . This is consistent with our position in relation towhistleblowers legislation , where we argued that whistleblower issues couldlegitimately arise in a number of different forums.

Model 3 does need to be further developed. For example, chief executives of agenciesshould have some responsibility for investigation and action upon alleged breachesof the code . Also, the monitoring and evaluation role should rest with theorganisation responsible for developing the code."

(d) The CJC (S29) also considered that Model 3 in Table 8.1 was themost appropriate because : " ... each department needs to develop , own andimplement a specific code of ethics that builds on a generalist code... "

(e) The alternatives set out in Table 8 . 2 provide "... the most acceptable basisfor the development and management of any such code." according to theLivingstone Shire Council (S5).

Analysis of Evidence and Arguments

8.31 The Joint Submission (S15), Cr H Schwabe (S18) and the PSMC (S24)favoured Model 3 in Table 8 .1. A virtue of Model 3 is that it involvesexisting agencies without necessitating large scale functional modifications(Joint Submission (S15)). However , these submissions all identifiedproblems or suggested modifications to Model 3.

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8.32 The PSMC (S24), the Joint Submission (S15) and the CJC (S29) allsuggested changes to improve the effectiveness of the model. Onedifficulty attached to Model 3 and noted by the PSMC is that responsibilityfor the various functions is too diffuse . Under this regime the PSMC andthe agencies should take joint responsibility for functions such as thedevelopment of policy , codes and legislation , training , monitoring andevaluation , and redevelopment.

8.33 Investigations based on public complaints may be handled by theOmbudsman with referral to the CJC if criminal misconduct is suspected(Joint Submission (S15)). Serious problems arising internally should bedealt with by the agency where possible. In all of these cases, the CEO ofan agency or a senior delegate should be involved in the investigation.

8.34 The Commission agrees with A Sandell (S6) that a distinction should bemade between ethical principles and the nature of official conduct whichshould follow from them. In this regard the Commission has set out itsproposals for ethical principles and defined its view of appropriate conductbased on these principles in earlier chapters of this Report.

8.35 The Commission is of the view that amongst the requirements for theeffective implementation and management of Codes of Conduct forQueensland public officials are that they be:

(a) coherent - applying to the whole of the Queensland public sector;

(b) relevant - capable of particularisation for individual agencies, or evenindividual workplaces;

(c) authoritative - enforceable and providing workable and consistentsanctions;

(d) helpful - providing independent advice and assistance on emergentdilemmas (for both management and individuals), training andongoing development of the code's provisions; and

(e) administered by persons with independent expertise - capable ofundertaking independent, expert investigation of complaints wherenecessary, disciplinary appeals on breach of code matters,authorisation of agency-specific adjuncts to the code, development ofamendments and reporting on the operation of the code.

8.36 The Commission concludes that a combination of Regime 2 and Regime 3is the best model for development of an ethics regime for the Queenslandpublic sector.

Co-ordination of the Proposed Ethics Regime

8.37 The Commission believes, however, that the PSMC should not be thecentral agency responsible for co-ordination of the scheme. TheCommission is concerned that:

(a) The PSMC would not have coverage of Local Authority personnel, andeven if coverage were to be provided for ethics-related issues, the newfunction would sit oddly with the Commission given its currentcharter.

(b) Similarly the PSMC has no authority over elected representatives.

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(c) If the PSMC is given responsibility for co-ordinating the proposedethics regime, it may find itself in situations where the substantialissues raised by cases, or ethics policy questions may conflict with itsown employment standards and priorities. In such cases itsindependence and objectivity would be likely to be questioned.

(d) The carriage of public sector ethics matters needs to be recognised asa distinctive and significant responsibility. Allocation ofresponsibility for public sector ethics to the PSMC would risk havingethics matters seen as either part of PSMC's existing responsibilitiesfor terms and conditions of employment, or limited to enhancing theefficient and effective operation of public sector organisations andstructures.

8.38 The Commission has similarly considered whether the Ombudsman shouldbe responsible for administering the proposed ethics regime. TheCommission is of the opinion that this would be inappropriate because theOmbudsman's role is primarily concerned with investigating allegedinstances of maladministration.

8.39 Aside from the practical problem that the Ombudsman is already verybusy there is the concern that the management issues , which are normallythe focus of the Ombudsman's investigations, would receive more attentionand weight than questions of ethics.

8.40 The Commission proposes that a small specialist office should beestablished within the Premier's Department reporting directly to theHead of Government. This Office, the Office of Public Sector Ethics(OPSE), should be made responsible for co-ordinating and developing theethics regime and its associated Codes of Conduct. Details of the proposedoffice are provided later in this chapter (paras.8.61-8.72).

8.41 There are precedents for the OPSE in many other jurisdictions,particularly the Office of Government Ethics in the United States. Theestablishment of a separate office dedicated to ethics issues would also putbeyond question the Government's belief in the importances of highstandards of public sector ethics and conduct in post-FitzgeraldQueensland.

8.42 The Commission recognises the potential dangers of overloading thePremier and the Premier's Department with additional functions,especially if these entail detailed or ongoing administrative andinvestigatory responsibilities. A solution to this problem, which has beenimplemented by the Commonwealth and some other States, may be theintroduction of a system of Junior Ministers to assist Ministers with someparts of their portfolios.

RECOMMENDATION

8.43 The Commission recommends that the appropriate model for theadministration of the proposed public sector ethics regime for Queenslandshould be:

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Function:

1. Development of policy,Codes, and legislation,including endorsement ofagency-specific adjunctsto Codes.

Responsible Agency:

"Office of Public Sector Ethics"(OPSE) within the Premier'sportfolio - in conjunction withindividual agencies.

2. Development of agency-specific adjuncts to Codes.

3. Investigation andprosecution/sanctions.

4. Appeals againstdisciplinary action

5. Training and Development;advice to agencies onspecific cases.

6. Monitoring/Evaluation

CEOs in consultation with OPSE.

1. CJC for breaches constituting"official misconduct" or breach ofCriminal Code.

2. Individual agencies for other (lessserious) breaches of Code, viaexisting disciplinary provisions for"failure to fulfil obligations of anofficial".

3. OPSE where agency fails or isunable to act, (in reserve , e.g. whereCEO involved , or "former official", oragency no longer exists , etc.).

Existing PSME Act or otherrelevant appeals process.

OPSE in conjunction with agencies.

OPSE (of agencies); Ombudsman orParliamentary Committee, orAuditor-General, etc. of OPSE.

Proposed Public Sector Ethics Act 1992

8.44 The Commission has noted elsewhere in this Report that there are manyinstances of official conduct standards being enshrined in or based onlegislation. A recent review by the Commonwealth ParliamentaryAssociation (1989) identified 22 countries, provinces or States which haveofficial conduct standards of some kind based on legislation. Among theseare a number of other Commonwealth countries sharing Westminstertraditions of government, the United States at both the federal and Statelevels, Canada, and in Australia the State of Victoria.

8.45 The Commission has considered whether official conduct standards shouldbe defined in legislation or be based on administrative instructions. Atpresent the Queensland Code, although referred to in the Regulations tothe PSME Act, does not have the force of legislation. Similarly theMinisters' Code of Ethics has no legislative basis.

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8.46 Many authors cited in this report have identified the responsibility whichrests on management to declare what constitutes acceptable conduct for itsemployees, including senior management staff. The question is whetherstandards of conduct for officials should be codified in legislation, ratherthan, for example, issued as a policy directive by a government, or as anadministrative directive by a central agency such as the PSMC or byindividual CEOs.

8.47 A generally traditional view of external regulation was provided in theBowen Committee Report in 1979, which cited an earlier (1976) Britishreport, in which the idea of "rigorous regulation and scrutiny" was seen asa danger to effective standard setting:

"Traditionally in Australia responsibility for standards of conduct in publicofficeholders has been vested in those responsible for their management. TheSalmon Commission, writing in the British context where the traditions of publicservice are similar to our own, said:

one of the main safeguards against corruption in any institution is thestandard set and required by the management from the top downwards.This depends on esprit de corps which can be seriously damaged by systemsof regulation and scrutiny so rigorous that they inhibit leadership bymanagement and imply that the people working in the organisation areunworthy to trust.

The Committee agrees, and believes that the point is valid whether the officeholdersconcerned are elected or appointed. It would go further and say that if a group ofofficeholders is incapable of ensuring that its members adhere to a set of prescribedor clearly understood standards of right conduct, there is little likelihood that analien authority can successfully impose those standards on them." (BowenCommittee Report 1979, s.3.12).

8.48 The Commission believes that this objection is not persuasive in the lightof evidence now available, and is no longer supported by the community atlarge.

8.49 The Commission has identified no significant arguments as to whylegislation is inappropriate as a basis for official conduct standards. Onthe other hand a growing trend towards increased prescriptiveness,including legislation, in relation to official conduct standards and ethicalstandards in public life generally has been noted.

8.50 For example, Professor Finn has noted a trend in which courts arebecoming increasingly involved in declaring standards of conduct in areaswhich, until recently, informal community standards of acceptable conductwere the norm:

"We clearly are diverging from the English in many of the matters that I havementioned . While we are doing things in ways that are distinctively our own, andwhich reflect our own traditions, the ethos in what we are about aligns us moreclosely with New Zealand and Canada and, more distantly , with the UnitedStates. Secondly, my own tentative view of what is at work in the law is a far moregeneral concern with the abuse of power in society . In the public arena - in therelationship of the citizen and the State - it is reflected in the growing accentuationof individual rights against State power . In the private arena - in the relationshipof citizen and citizen - it is being achieved thro ugh the neighbourhood idea. ...Thirdly, perhaps most importantly for the role ofaw in society, to what extenddoes this shift in values in the law reflect and respond to dominant community andbusiness standards ? ... The present Chief Justice of the High Court of Australia, SirAnthony Mason, has noted the need to bring the law into harmony with Australiancircumstances , needs, and values'. Its more recent ethical emphasis may beinterpreted simply as a manifestation of this. Alternatively one may postulate thatthat ethical emphasis is there because today the sanction of State - of legal -compulsion is necessary to secure important values in society which no longer cansafely be assumed to be the ordinary inspiration for action in our business andprofessional world." ( 1990c , p.23).

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8.51 Legislation may perform at least two important functions: establishing anexplicit framework and criteria for the implementation of policies andidentifying the values implicit in that policy. To this extent, newlegislation might declare the criteria of acceptable conduct by publicofficials and establish a mechanism for encouraging affected officials toobserve those standards, without departing from established legislativeand administrative paradigms.

8.52 Legislation declaring the ethical obligations to be observed by publicofficials in performing their official duties would be, in principle, littledifferent from already existing legislation and awards requiring officials toobserve secrecy requirements, to work a prescribed number of hours in agiven period, or to be paid at a set rate in relation to a particular positionor class of positions.

8.53 This Report takes the view that the purpose of legislation would be todeclare, rather than impose, standards of acceptable official conduct onpublic officials. To the extent that those standards are derived fromrelevant community perceptions of what standards are appropriate, andare consistent with the roles of public officials, they would be self-imposedby a majority of officials.

8.54 As demonstrated by the Ethics Survey, and recognised generally in thecommunity, everywhere, the majority of officials are concerned to actethically, recognise ethical conduct as an important part of their officialroles, and see themselves as in need of guidance on how to deal withethical issues in their work. It will make little difference to these officialswhether standards of official conduct are codified in the form of guidelines,or in legislation. The major value in having official conduct standardsestablished in legislation would be the definitive, enduring and universaldeclaration of such standards which their embodiment in legislation wouldprovide.

8.55 Further, the proposed formal "obligations" of public officials represent asignificant addition to the definition of the roles and responsibilities ofpublic officials, with potentially significant sanctions to be available ininstances of significant non-compliance. This report argues elsewhere thatthe official conduct obligations of public officials are not to be regarded asin some sense "optional extras" to their existing roles and functions. Highethical standards are to be seen as integral to the role of public official,setting the context for all other aspects of their responsibilities. It istherefore desirable, in the view of the Commission, that such standardsenjoy the same relative status in law as matters of employment,advancement, accountability and remuneration.

8.56 In addition, the effective establishment of official conduct standards for allcategories of public officials in Queensland, including electedrepresentatives, would necessarily require the support of thoserepresentatives. Legislation adopted with bi-partisan support would begreatly preferable to any of the other options.

8.57 Finally, because it is important to recognise and enhance the non-partisancharacter of the role of appointed officials, the standards governing theirconduct ought to be distanced from the realm of party-politicaldecision-making. Legislation, particularly where it has bi-partisansupport, provides an appropriate degree of insulation, and ensures that theviews of the community as a whole may be taken into account in theformulation of the required standards for officials, rather than those of aminority.

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8.58 The Commission is accordingly of the opinion that the general standards ofethical behaviour required of Queensland elected and appointed publicofficials should be declared in legislation. The Commission has included adraft Bill for a Public Sector Ethics Act 1992 (PSE Act) in Appendix E tothis Report. It proposed that the Codes of Conduct for appointed officialsand Members should be attached as regulations under the PSE Act. It hasalso included an enabling provision in the definition of "public sector unit"(Part 1) in the Bill to enable other bodies to come under the definitionwhen prescribed by regulation. This provision enables other agencies toopt for coverage under the legislation.

RECOMMENDATION

8.59 The Commission recommends that the Queensland public sector ethicsregime should be based on legislation , a Public Sector Ethics Act 1992, andassociated regulations (including Codes of Conduct) which declares thefundamental responsibilities and obligations of all public officials inrelation to the government, the Parliament , the public and other officials.

Administration of the Public Sector Ethics Regime

8.60 Previously in this Report the Commission has discussed its concerns thatunless there is a strong public commitment by the Parliament and theGovernment to a formal public sector ethics regime, the current situation,where existing codes and other standards are either unknown or ignored,will be likely to continue.

OFFICE OF PUBLIC SECTOR ETHICS

8.61 The Commission believes that the necessary leadership, commitment andongoing development will be best assured by the establishment of aspecialised system based on the recommended independent OPSE. Thisoffice, located within the Premier's portfolio, should have the followingfunctions:

(a) administration of the PSE Act;

(b) development of training programs and materials in conjunction withusers;

(c) provision of advice to organisations and individuals on cases and thedetailed application of the PSE Act and codes;

(d) endorsement of the specific adjuncts to the Code of Conduct forAppointed Officials which are to be developed by individualDepartments, authorities and agencies;

(e) provision of detailed, expert advice and assistance to departments,authorities, agencies, trade unions and individuals on casework andspecific ethics and official conduct matters;

(f) co-ordination of a common and coherent approach to public sectorethics matters with the CJC, the PSMC and the Department of LocalGovernment;

(g) consultation with a community-based Advisory Panel on PublicService Ethics (see below); and

(h) reporting to the Parliament on activity under the legislation.

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8.62 The evidence and submissions in relation to Issue 4.57 support the conceptof a small but independent statutory office responsible generally for thepromotion of an increased awareness of the need for an ethical publicsector. An increase in the ability and willingness of public officials torecognise and deal appropriately with ethics issues is seen as desirable.

8.63 The idea of an independent ethics agency in a Westminster-derived systemof democratic parliamentary government is not by any means novel:almost all State Governments and the Federal Government in the UnitedStates, and most provincial governments and the national government ofCanada, have such formal bodies charged with responsibility for ethicslegislation of various kinds, including prosecution, audits of compliancewith conflict of interests legislation, training, and provision of advice onspecific cases or questions. In Australia, until recently, most independentstatutory Public Service Boards in the State and Federal systems provideda degree of supervision and consistency in advice to departments overofficial conduct matters in relation to public servants, but not of courseelected representatives.

8.64 The abolition of most Public Service Boards and their replacement bybodies which are, in general, less independent of Governments and moreconcerned about public sector management issues, may well have led to ageneral reduction in the availability of consistent advice on ethics mattersto departments, agencies and managers. One result of this could be anincreased reluctance by managers to address ethics and official conductissues.

8.65 ICAC has suggested that in New South Wales an independent tribunal,chaired by a District Court Judge sitting with two lay persons, couldinvestigate allegations of breaches of the conflict of interests provisionsproposed for that State and determine whether a breach has occurred.

8.66 The Bowen Committee (1979, pp.140-1) had previously recommended anumber of machinery provisions for the regulation of conflicts of interestsat the federal level. These included the establishment of Standing EthicsCommittees for both Houses of Parliament and a statutory body, thePublic Integrity Commission.

8.67 The two main roles of independent ethics commissions or agencies areusually:

(a) advisory - the provision of independent, informal and consistentadvice to officials about the ethics principles which they are expectedto observe, and what that observance requires in particular cases; and

(b) adjudicative - the conduct of investigations in relation to compliancewith relevant statutes.

8.68 The OPSE proposed for Queensland would have an almost entirelyadvisory role, reflecting the fact that the proposed PSE Act would bedifferent in character from the typical specific conflict of interests statutesof the United States and Canada. A "reserve" power to investigatebreaches of the PSE Act or code should be retained for exceptional oranomalous circumstances. Under the proposed PSE Act, the decisionwhether to take action against an official for a breach of the PSE Act or aCode of Conduct would be generally at the discretion of departmentalCEOs or their delegates in relation to employed officials; Councils, inrelation to Council officers and employees; and the Parliament itself inrelation to its Members (assuming that the Parliament adopts therecommendation that it develop a Code of Conduct for ElectedRepresentatives).

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8.69 The establishment of an independent OPSE is an important meanswhereby a Government can publicly declare its commitment to themaintenance of ethical standards in public administration.

8.70 Reflecting the devolved structure of management in the Queensland publicsector, and the large number of independent Councils at the LocalAuthority level, the Commission sees it as appropriate that the OPSEexercise two other important functions - the co-ordination with agencies ofthe development of specific training and development programs, and theprovision of assistance to agencies developing their own interpretations ofthe PSE Act and the Code of Conduct for issue as agency-specific rules.

Recommendation

8.71 The Commission recommends:

(a) The creation of an "Office of Public Sector Ethics" as an independentagency, and located administratively within the Premier's portfolioand responsible for all aspects of the Act's administration. The Officeis to staffed in accordance with normal public service procedures,and headed by a "Director" responsible to the envier with a small(3-5 persons) staff.

(b) That the Office required, in the performance of its fimctions, toconsult with and assist relevant units of the public sector which arecovered by the provisions of the Public Sector Ethics Act 1992. TheDirector of the Office is to be empowered to request an agency toinvestigate an alleged breach of the Act (including a breach of theCode or an adjunct to the Code) and to report to the Office on theresults of its investigation.

(c) That the Director of the Office is to be empowered to investigate analleged breach of the Act - (1) where (i) the responsible ChiefExecutive has failed to do so, and (ii) the alleged breach is regardedby the Office as sufficiently significant to warrant investigation; or(2) where the agency in which the breach occurred no longer exists, orwhere the Chief Executive is involved in the matter or is likely to beinvolved.

(d) That the Office is to be required to negotiate the formal endorsementof agency-specific adjuncts to the Code of Conduct developed byindividual Departments, authorities and agencies; co-ordinate acommon and coherent approach to public sector ethics matters withthe Criminal Justice Commission, the Public Sector ManagementCommission and the Department of Local Government; and report tothe Parliament on system-wide matters in relation to itsresponsibilities.

(e) The functions of the Office should be:

(i) administration of the Public Sector Ethics Act 1992;

(ii) development of training programs and materials in conjunctionwith users;

(iii) provision of advice to organisations and individuals on thedetailed application of the Public Sector Ethics Act 1992 andcodes;

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(iv) endorsement of specific adjuncts to the Code of Conduct whichare developed by individual Departments , authorities andagencies;

(v) provision of detailed, expert advice and assistance todepartments , authorities , agencies and individuals on caseworkand specific ethics and official conduct matters; and

(vi) co-ordination of a common and coherent approach to publicsector ethics matters with the Criminal Justice Commission,the Public Sector Management Commission and theDepartment of Local Government.

8.72 The Commission has included provisions to establish the proposed Office ofPublic Sector Ethics and define its functions in its Public Sector Ethics Bill(Appendix E) in Part 8, Division 1 (Office of Public Sector Ethics). Animportant part of this role will be the development of the Codes ofConduct. In the case of the Code of Conduct for Elected Representativesthe Commission is of the view that the contents of the code should bedeveloped by the OPSE subject to any directions of the Speaker (see s.20(1)in the draft Bill in Appendix E). This is because the Commission isproposing a single Code of Conduct to apply to all elected public officials atboth the State and local government levels. Under these circumstancesthe Commission believes that the Speaker is the appropriate senior electedofficial who should direct the OPSE as to Code content.

THE ADVISORY PANEL ON PUBLIC SECTOR ETHICS

8.73 The Commission believes it is important that public sector ethics regimeshould be sensitive to and responsive to changing community standardsand expectations in relation to ethical conduct. To this end theCommission proposes the establishment of a community-basedconsultative body under the PSE Act, the Advisory Panel on Public SectorEthics, to advise the OPSE.

8.74 The proposal for a consultative body recognises the importance which theCommission has attached in this Report to linking the personal andprofessional ethical standards of individual officials to current communitystandards, so far as they can be meaningfully ascertained. An OPSEwhich is divorced from community standards will almost inevitably finditself out of touch, to the detriment of community confidence in the systemand its values.

8.75 In the Commission's view the Advisory Panel on Public Sector Ethicsshould consist of a small number (minimum 3, maximum 7) of part-timemembers, appointed by the Governor in Council on the advice of thegovernment on the basis of established interest, relevant expertise andcommunity standing in ethics-related matters. The membership of thePanel should not be prescribed in respect of classes of people or particularinterests to be represented.

8.76 The Panel should be required to:

(a) meet formally at least three times per annum to review theoperations and activities of the Office;

(b) contribute to the OPSE's advisory processes by reviewing the adviceprovided by the OPSE on the development of codes and adjuncts tocodes, by reviewing specific cases, and by undertaking research orother activities relevant to the performance of its functions; and

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(c) provide annually a separate report to the Parliament to be containedin the OPSE's Annual Report.

8.77 Members of the Panel should be appointed, retired and remunerated inaccordance with established practice for such consultative bodies. Amember or members of the Panel may be nominated by the Premier toconduct investigations and report on specified matters where thesensitivity or the complexity of the matter renders such an approachappropriate. It would be expected to meet at least three times per year toconsider matters arising from the application of the PSE Act and code(s),and to provide advice to the OPSE on relevant community standards andattitudes to public sector ethics matters.

Recommendation

8.78 The Commission recommends the establishment of an Advisory Panel onPublic Sector Ethics to monitor the activities of the Office of Public SectorEthics. The Panel should consist of 3-7 part-time members appointed bythe Governor in Council and selected on the basis of interest , relevantexpertise and community standing in ethics-related matters. The Panelshould meet at least three times annually and report to the Parliament inthe Annual Report of the Office of Public Sector Ethics.

8.79 Provisions to establish the Advisory Panel and define its functions havebeen included in the Public Sector Ethics Bill (Appendix E) in Part 8,Division 3 (Advisory Panel on Public Sector Ethics).

SUMMARY OF PROPOSED PUBLIC SECTOR ETHICS REGIME

8.80 In summary the Commission proposes:

(a) A Public Sector Ethics Act 1992 which establishes an Office of PublicSector Ethics within the Premier's portfolio and which declaresfundamental ethical obligations in relation to public sectoradministration and the conduct of elected and appointed officials.

(b) An Advisory Panel on Public Sector Ethics to monitor the activities ofthe OPSE and public sector ethics issues generally.

(c) Regulations to the PSE Act which are general Codes of Conduct forcertain categories of officials:

(i) a general Code of Conduct for Appointed Public Officials derivedfrom the principles set out in the PSE Act, to apply to appointedand employed staff in all units of the Queensland public sectorand local government authorities.

(ii) a general Code of Conduct for Elected Representatives , derivedfrom the principles set out in the PSE Act, to apply to electedgovernment.

(iii) other general Codes of Conduct for other categories of officials,including the judiciary and statutory office-holders, developedon the principles set out in the PSE Act at the initiative of thoseofficials.

(d) Detailed agency-specific rules to be developed to the extent requiredby individual public sector bodies and departments, and by individuallocal government Councils in respect of their employed officials, andissued with the endorsement of the OPSE as formal adjuncts to theCode of Conduct for Appointed Public Officials.

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(e) Formal disciplinary sanctions for significant breaches of the Codes ofConduct through existing disciplinary processes or the provisions ofthe Criminal Code as appropriate to the circumstances. No newspecific ethics offences would be created.

8.81 The proposed administrative model is intended to consist of:

(a) the creation of a formal regime (consisting of legislation, codes andagency-specific adjuncts) for the management and development ofethical behaviour in the Queensland public sector;

(b) the declaration in legislation of specific identified ethical principlesas fundamental to good government and public administration;

(c) the prescription in legislation of consequential obligations in relationto the conduct of officials;

(d) an independent administrative agency and related advisory bodyresponsible for the administration of the PSE Act; and

(e) a range of training, advisory, reporting, consultative, investigativeand adjudicative functions which are to be undertaken or performedas necessary or expedient to give effect to the PSE Act.

8.82 The major objectives of the proposed approach are:

(a) to provide a consistent, reasonable and manageable statement of thegeneral principles of conduct appropriate to public officials inQueensland;

(b) to provide a mechanism for CEOs within limits, to particularizeelements of the relevant code for their organisations; and

(c) to provide a general strategy for implementation of the Code ofConduct, as the major part of a broader process for ethicsdevelopment in the Queensland public sector.

Penalties and Sanctions

Issue 4.59 Should disciplinary action for a breach of a code of conduct be:

(a) available, in relation to any breach;

(b) available, in relation to prescribed offences only;

(c) available generally at the discretion of an appropriate level of managementin relation to the offence concerned; or

(d) available for prescribed offences only at the discretion of an appropriate levelof management in relation to the offence concerned?

Issue 4.60 Should disciplinary action be available only in relation to specific ethicsoffences, for example, "failure to act fairly and equitably in dealings with a memberof the public", or in relation to a general offence of failure to fulfil the duty of anofficial-?

Issue 4.61 What form(s) of penalty, if any, may be appropriate in relation tobreaches of the provisions of an organisation 's code of ethics/code of conduct?

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8.83 The Commission recognises that a significant part of an ethics regime willbe provisions for breaches/offences and associated penalties. The absenceof such sanctions appears to have been a major shortcoming of theQueensland Code. In the area of sanctions or penalties lies the greatestpotential for delivery of strong positive and negative messages about anethics regime 's significance and the government's commitment to it.

8.84 The Commission is aware of the risks that sanctions may be usedinappropriately. An example of inappropriate use might includeover-reaction to a breach in order to make an example of an offender.Ineffective use of sanctions might encourage others to breach a code anddiscourage managers from enforcing the code's provisions. These uses ofsanctions may seriously damage the credibility and usefulness of anyethics regime.

EVIDENCE AND ARGUMENTS

8.85 (a) Professor Paul Finn (T54) observed that a fundamental difficultywith a punitive approach is that the nature of conduct which actuallyconstitutes "improper conduct" must first be clearly understood:

"It's easy to take a very blatant and blunt act of bribery and say, `Right , that'sbeyond the pale, and we 'll at least metaphorically stone the individual involved,but we don 't have, I think, a developed understanding of what is corrupt conduct.

I find it quite intriguing, for example, that the Supreme Court of the United Statesthis year, in a major decision concerned with electoral campaign funding, founditself in very great difficulty in coming to a conclusion as to when conduct, thoughdisagreeable , should be regarded tolerable and necessary and when it should beregarded as corrupt. "

(b) The Joint Submission (S15) advised:

"Support was evenly spread among all the options. However, there was no supportfor option (b), that disciplinary action for a breach of a code of conduct be availablein relation to prescribed offences only.

One Department suggested that there has to be a distinction drawn between thecode of ethical conduct and the normal code of conduct. In relation to ethicalconduct, the breach, which would attract disciplinary action, would have to becarefully defined so as to only cover the situation where the ethical principles havebeen disregarded by the decision maker. It should not be considered a breach wherethe ethical principles have been considered and weighed up, and a decision reachedhaving placed more weight on one ethical consideration than another person mightdo. Disciplinary action should be available for a breach of the code of conduct. Theinitial decision as to whether there has been a breach of ethical principles wouldhave to be left largely to the management. "

8.86 A number of submissions addressed matters arising out of the question ofwhether disciplinary action should be available only in relation to specificethics offences; for example, "failure to act fairly and equitably in dealingswith a member of the public", or in relation to a general offence of "failureto fulfill the duty of an official" (Issue 4.60).

(a) In terms of punitive measures , it is necessary to distinguishquestions of law from questions of ethics. As Professor Selby-Smith(T58) stated:

"Questions of law are ultimately able to be resolved by the courts . Matters of ethicsare almost by definition unable to be resolved by resort to rules or laws. Ethicsquestions are crucially matters for judgement about competing values, andtherefore matters about which there may be continuing disagreement , ambiguity, oruncertainty. "

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(b) "Most Departments agreed that disciplinary action should be available only inrelation to specific ethics offences, because it would be difficult to justify an appealprocess in relation to general offences. Furthermore, those that wanted disciplinaryaction to apply to general offences did so because not all specific offences could beforeseen.

Some thought disciplinary action should apply to any breach, otherwise it isimplied that some parts of the code are more important than others. Onedepartment qualified this by stating that disciplinary action should be applied onlyat the discretion of an appropriate level of management in relation to all breachesof a code of conduct." (Joint Submission (S15)).

8.87 In connection with the form(s) of penalty which may be appropriate inrelation to breaches of the provisions of an organisation's Code ofEthics/Code of Conduct (Issue 4.61):

(a) Although V Davies (S2) referred to " ... qualifications, skills, mental orphysical examinations as required in society at large", he did not expresslyrefer to any particular standards of conduct for public servants.However, he did say:

"Public servants, officials, or politicians must set an good example and if breachesare suspected or proved must be dealt as in the rest of the society and they shouldbe jailed ... "

(b) Livingstone Shire Council (S5) stated that "Appropriate penalties forbreaches of the code should apply", without being specific.

(c) Disciplinary action in regard to misuse of property, and managementdiscipline are matters dealt with in the Water Resources CommissionCode (S3).

(d) In relation to penalties, the Queensland State Service Union (S9)commented: "It will be difficult in the extreme to establish in the first instance abreach of 'ethics' wherein the perception of ethical performance falls to subjectiveindividual judgement." However, the Union added that: " ... prescribedoffences which are tangible in nature are and should be actionable in regard todisciplinary procedures."

(e) The Joint Submission (S15) indicated a division over the issue ofpenalties:

(f)

(g)

"Responses were evenly split between those who favoured a range of disciplinarymeasures from dismissal to a warning, and others who preferred a system ofeducation and counselling.

Provision could also be made for professional help as part of the enforcementstrategy where it is obvious that the problem is dependency related e.g. alcoholabuse or addiction. "

"Depending on the severity the whole range from explaining over reprimand todismissal should be the options available to the organisation. In the case of anelected member the responsibility of dealing with this matter should be left to anindependent authority, probably the Court, followed by the Government and theGovernor." (Cr H Schwabe (S18)).

'Disciplinary action should be at the discretion of an appropriate level ofmanagement in relation to the offence concerned and should attract a penaltyconsistent with the offence. I agree that available sanctions not used or usedineffectively against a wrong-doer may encourage misconduct and discouragemanagers. Alternatively though, managers may not wish to impose harsh penaltiesfor a `first offence' with little impact on the overall operation of the unit of a publicsector.

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Whilst prescribed penalties impose an equitable base for breaches of the code, theydo not allow any discretion to take into account previous actions, consequences andremedial action taken by those in breach. Such discretion produces more justoutcomes." (PSMC (S24)).

(h) P Roberts (T50) suggested in the Public Seminar that the primarymotivation for acting honestly was not the prospect of punitive action:

the most effective way of controlling fraud is to create an environment ofvoluntary compliance whereby administrative and financial procedures are suchthat persons both inside and outside the public sector are aware - are continuallyreminded that there is a vigilant control of resources. Taking this approach, thepunitive elements which are very, very necessary in the law enforcement approachbecome a fail-safe mechanism, which is essential but not dominant."

(i) Professor Finn (T54-5 ) asked if the community wants:

11... to have a system of condemnation, but are we to allow members of our

community to rise Lazarus-like again, to actually be reformed, have a second go. Imean, we are starting as a matter of public policy now to ask the question, how farsomeone's prior criminal history should for ever disable that person from effectiveparticipation in social life in this country."

(j) J Norton of the PSMC (T150) stated that sanctions are recognised as:"... necessary but they should not necessarily dominate that Code. "

(k) In relation to management practices , Dr C Dalglish (T162) proposed:

"If officers, despite encouragement to the contrary, breach the value system, theymust be liable to disciplinary action including possible dismissal. No direction willbe taken seriously if failure to comply is not subject to sanctions.

Ethical behaviour cannot be taken for granted. Ethical expectations must beclearly and continuously communicated and disciplinary actions should specificallyrefer to the violation of ethical standards as well as the specific acts which haveprovoked the disciplinary proceeding. "

ANALYSIS OF EVIDENCE AND ARGUMENTS

8.88 This review has throughout emphasised the need to distinguish therequirements of the law from the requirements of ethics. ProfessorSelby-Smith's comment above should be noted.

8.89 For the purposes of this review, the distinction between the standards ofconduct set by laws, and those set by Codes of Ethics, or generalisedconventions on the ethical standards expected of public officials,approximate to two different aspects of all such standards: the law setsminimum standards which are not to be transgressed, and Codes of Ethicssets the highest standard of conduct to be aspired to.

8.90 The preceding proposal for the administration of an ethics regime observedthat the general Codes of Conduct should reflect ethical principlesestablished for government. Legislation and regulations cover definablebreaches of expected behaviours - future legislation and regulation can beexpected to do the same. As observed above, agency-specific codes mayinclude identified breaches of ethical conduct stated in the general codes.These principles may become obvious as agencies work toward establishingtheir adjuncts to the general codes and consider any special conditions thatapply to their operations. Agencies may then seek to see establishedspecific regulations reflecting their special conditions with appropriatesanctions attached.

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8.91 Existing legislation and regulations applying generally to the public sectormay need to be reviewed and consolidated.

8.92 The general codes cover areas of discretionary power in which it isfrequently difficult to specify an offence. Indeed, as noted by the JointSubmission (S15), there may be no offence in the sense of a deliberatebreach. The course of action here should involve education and training toimprove an official's capacity to reach proper judgements. Continued poorjudgement may be grounds for removal from a position.

8.93 The Commission believes that the development of specific standards ofconduct for particular agencies or groups of officials may be best left toeach agency to develop in consultation with the OPSE. The specificstandards may reflect conduct proscribed by existing legislation but mayextend and elaborate its relevance to an agency's particular requirements,possibly by the creation of agency-specific rules.

8.94 Behaviour contrary to the general Code of Conduct should be handled on adiscretionary basis, for example, by involving counselling or training.Such breaches are distinct from legislatively proscribed conduct. Wherethe latter conduct has occurred, mandatory penalties or prosecution shouldapply.

8.95 In the case of the Parliament, it is the Commission's view that breaches ofthe code, allegations of non-compliance, and the question of sanctionswould appropriately be the responsibility of the Speaker.

8.96 In the case of local government, such matters would of necessity be dealtwith internally by each Authority, provided the matter at issue did notinvolve a breach of the criminal law, the LG Act or the CJ Act.

RECOMMENDATION

8.97 The Commission recommends:

(a) that the Public Sector Ethics Act 1992 should provide that breachesof the Act, or of the provisions of any Code promulgated under the Actby a unit of the public sector other than the Parliament , should beable to be dealt with by management in accordance with the agency'sexisting disciplinary process or alternatively where appropriate, atthe option of the agency , under the Criminal Code or the CriminalJustice Act 1989-1991 . Appeals should be available to persons inaccordance with the normal operation of that disciplinary process.

(b) Where the Parliament adopts a Code of Conduct for ElectedRepresentatives in accordance with the Act , breaches of that Code inrespect of Members of the Legislative Assembly are to be dealt withas dtermined by the Parliament.

(c) Where a Code of Conduct for Elected Representatives has beenadopted, breaches of the code by Local Authority Members shall bedealt with by the relevant Local Authority . Where disciplinary actionrelies upon the Clerk or another official of the Authority for itsimplementation , any personal action or other form of victimisationtaken against the Clerk or official should constitute an act of officialmisconduct for the purposes of the Criminal Justice Act 1989-1991.

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8.98 Provision for breaches of the Public Sector Ethics Act 1992 or Codespromulgated under the PSE Act have been included in the Public SectorEthics Bill (Appendix E) in Part 7 (Enforcement).

The Need for Training and Advice

Issue 4.62 Is it necessary or desirable that such a code be supported by detailedadvice or training on how to apply its principles ? If so, should such assistance bedeveloped by individual agencies, or by a central agency on behalf of the service asa whole or both?

Issue 4.63 To what extent should each department be expected to provide formaltraining and development opportunities for staff on how to apply the provisions of acode of conduct in the workplace ? To what extent could officers be required toundertake such training?

8.99 The Commission has noted previously that its Ethics Survey showed that aconsiderable proportion of public officials know little of the QueenslandCode. In some organisations there has been minimal if any training onethics generally or on the code itself.

8.100 Public officials frequently encounter questions of competing values andconflicts of interests. In the absence of a clear understanding of how torecognise and handle such issues many officials may inadvertently breacha provision of a code. Similarly, in the absence of specific training amanager may be unclear on whether to apply a sanction.

EVIDENCE AND ARGUMENTS

8.101 (a) Speaking at the Public Seminar, Professor Selby-Smith (T65) noted:

" ... while codes of conduct can be a useful framework for expressing uniformminimum standards, and identifying general factors relevant to ethical behaviour,they do not remove the need for training and education. ... the Royal Commissionon Australian Government Administration believed that an official faced with anovel situation who sought guidance on how to behave should not seek it in aformal written code of conduct, but that the remedy lay rather in training, indiscussion, in giving weight to the judgement of peers, in counselling, inestablishing procedures for obtaining advice from appropriate, independent, seniorstatutory office holders in central agencies. Also John Uhr has argued ... thatprofessional development and ethics has more to gain from challenging andperplexing case studies than from codified dogmas."

(b) F Haly, also speaking at the Seminar, quoted a statement of SirCharles Court's:

"I have always adopted the rather straitlaced attitude that there are no degrees ofethical conduct. You are either ethical or you are not. Unfortunately, we can seemany around us who ignore ethical conduct. To them the crime is to get caught.We can only hope that the shock of events in recent years will change this attitudedramatically. Yet this is not enough. There needs to be a continuous ethicseducation program - and not only directed at students and young practitioners.The policy must be one of prevention rather than cure: it is not something to beparaded only when a person is accused of unethical conduct." (T77).

(c) ICAC (S13) stated:

"Advice on codes for individual organisations has been provided throughpresentations at meetings and seminars and by providing detailed written commenton each draft.

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Workshop presentations have been provided to managers representing a wide rangeof public sector organisations. These have addressed the need to provide ethicalguidance to staff conducting a variety of public administration functions.

Presentations include imparting information, discussing scenarios which presentan ethical conflict, and panel discussions which involve public sector managerswith recent experience of devising a code of conduct for their organisation.

The Commission's role is advisory and, clearly, it is the responsibility of managerswho have detailed knowledge of the particular functions, goals, resources andconstraints of their organisations to decide exactly what is done, and how."

(d) Ms E Moore of ICAC commented at the Public Seminar:

"The Commission's work in promoting the introduction of organisation-specificcodes of conduct has been concerned that they do not simply reiterate existing lawsand regulations, but provide positive guidance for decision making in areas thatare unregulated." (T91).

She subsequently cited an issue faced by the New South WalesTourism Commission which :

" ... has identified circumstances in which it would be appropriate for staff toparticipate in low or no cost hospitality and travel. This issue is addressed both inthe staff code of conduct, and in a separate product familiarisation policy. Thisapproach of developing a supporting policy provides the opportunity to set out indetail the principles to be followed when making decisions about actual situations.It is likely to be more effective and efficient than an approach of attempting toexhaustively identify and rule out every possible situation that may arise." (T92).

(e) In relation to implementation and management of an ethicsprogramme the Queensland State Service Union (S9) stated:

"The contents of this paragraph [para 4.50, Issues paper No. 15] is suggestive of`over-kill' in government of behaviour. Expenditure, both in terms of resources andhuman endeavour for the implementation of such programme is totally unjustifiedwhen all that is required, is the exercising of normal social interaction skills."

(f) "Everyone agreed that there was a need for training, though one Departmentwarned that this could offend the sympathies of officers who underwent training inethics as part of their qualification, e.g. lawyers, and who should not have to do itagain.

Most agreed that training should be mandatory." (Joint Submission (S15)).

(g) The LGAQ (S16) stated:

"It would be desirable that all elected representatives were required to haveundertaken some accredited training programme on their duties and obligationswithin the first six months of their first term in Local Government.

In the case of officers, an accredited training or induction program should also berequired in relation to codes of conduct for public officials. Such programmes couldbe run through bodies such as the LGTC. There would appear to be little merit inany central agency being established to undertake such training. Industry specifictraining is likely to be the most effective in ensuring an understanding of the likelysituations where conflicts of interest may be encountered or in other mattersrelevant to codes of conduct.

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The Chief Executive Officer should be responsible for ensuring that electedrepresentatives and staff have undergone the prescribed level of training. Thiswould undoubtedly assist those people who genuinely wanted to know theirobligations and deter those who may consider the system is able to be misused forpersonal or commercial advantage. Also by increasing the number of people awareof the obligations involved for elected representatives and staff, pressure would bereduced on the Chief Executive Officer as the sole 'watchdog' of the standards

required. "

(h) "Training is the critical issue in any document which details acceptable behaviour.Discussion of the code should form part of induction training. On-going `refresher'awareness should form a part of every public official's development." (PSMC

(S24)).

8.102 A number of submissions were received on whether agencies shouldprovide formal training and whether officers should be required toundertake training (Issue 4.63).

(a) "It should be a requisite that all public officials are made familiar with theprovisions of such a code and that the training /implementation of same in theworkplace should have equal standing with other important aspects of a person'swork. This may well necessitate the inclusion of an `undertaking' on theemployment record of an officer or an `oath' by an elected representative."(Livingstone Shire Council (S5)).

(b) "Training should be available to managers upon procedure to be followed in light ofa breach of the Code of Conduct in regard to circumscribed offences, however, thequestion of ethical behaviour is largely one which should be a question ofself-regulation." (Queensland State Service Union (S9)).

(c) 'An induction process which requires employees to acknowledge in writing that theyhave read and understood the code can ensure the code is visible, and prevent itfrom being forgotten." (ICAC (S13)).

(d) "The Corruption Prevention Department [of ICAC] is currently contributing to aseries of workshops, co-ordinated by the Premier's Department which includemanagers from a wide range of public sector organisations and aim to assist in thedevelopment of these organisation-specific codes." (E Moore, ICAC (T91-2)).

(e) "It was generally agreed that the training should be developed by PSMC taking intoaccount special interests of different agencies, and performed by the agencies. OneDepartment thought the extent of training should be left up to each individualagency." (Joint Submission (S15)).

ANALYSIS OF EVIDENCE AND ARGUMENTS

8.103 Submissions from ICAC (S13), the PSMC (S24), the LGAQ (S16) and theJoint Submission (S15) all supported arguments stating a need fortraining and advice for public officials on ethics and ethical conduct.

8.104 Professor Selby-Smith observed:

while codes of conduct can be a useful framework for expressing uniformminimum standards, and identifying general factors relevant to ethical behaviour,they do not remove the need for training and education." (T65).

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8.105 The Queensland State Service Union (S9) argued that the cost of an ethicstraining program could not be justified given that all that is involved is the11 .. exercising of normal social interaction skills." That contention seriouslymisses the point raised not only in this Commission's Issues Paper, butalso in the Fitzgerald Report: ethical conduct in government serviceinvolves more than interacting socially or in accordance with one'spersonal ethical standards. It involves an understanding of whether thereis an ethically legitimate (as opposed to legal) basis for making a givendecision.

8.106 The Commission believes that the establishment of an ethics trainingscheme is crucial to the successful implementation of the proposed publicsector ethics regime. It is clear that a major problem with the existingschemes is that training has been limited and haphazard - the majority ofofficials are unclear about their ethical obligations under the QueenslandCode.

8.107 For the State public sector, training and development programs should beestablished by agencies in conjunction with the OPSE. Local Authoritiestraining and development programs should be coordinated by the LocalGovernment Department, which may use the OPSE as an advisory body.

8.108 There appears to be significant support for establishing ethics programs oftwo levels, designed for new recruits and senior management. Agencies'management should determine their other requirements, for example,specific training for personnel and line managers, and for all staff wherethe agency has developed comprehensive specific adjunct codes.

8.109 The LGAQ (S16) also stated that it favoured the creation of programs oftraining for newly elected representatives informing them of their dutiesand obligations. It may be desirable to design a similar program for newMembers of the Legislative Assembly to operate in conjunction with aformalised and comprehensive induction course as recommended by theCommission in its Report on the Review of Information and Resource Needsof Non-Government Members of the Queensland Legislative Assembly (atpara.4.223).

RECOMMENDATION

8.110 The Commission recommends that units of the public sector includetraining on ethics issues and Codes of Conduct in their staff induction andstaff development programs . All public officials should receive trainingand advice on the content of the Public Sector Ethics Act 1992 and therelevant Code of Conduct and any adjunct rules.

8.111 The draft Code of Conduct for Appointed Public Officials (Appendix F)defines a responsibility of Chief Executives as being to " ... ensure that theirstaff receive adequate and appropriate training in relation to the provisions of the Act andthe Code of Conduct... " in section 2.2 (Purposes).

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CHAPTER NINE

SUMMARY OF RECOMMENDATIONS

Introduction

9.1 In the course of this Report the Commission has made a number ofrecommendations which have emerged from its Review of Codes of Conductfor Public Officials. These recommendations have been drawn togetherbelow to form a summary list.

Summary of Recommendations

CHAPTER TWO - PUBLIC ETHICS AND PUBLIC TRUST: OFFICIALS AND THEIRCONDUCT

9.2 The Commission recommends that:

(a) any Queensland Codes of Conduct for Public Officials should beconsistent with "Westminster" principles , reflecting generalcommunity understandings and expectations of the functionalobligations of public officials; and

(b) the major principles which should underlie any Codes of Conductdeveloped for the Queensland public sector should be expressed as:

(i) respect for the law and the system of government;

(ii) respect for persons;

(iii) integrity;

(iv) diligence; and

(v) economy and efficiency. (para.2.64).

9.3 The Commission recommends that the concept of an official 's obligation tobe a "trustee of the public interest", broadly understood, should berecognised as fundamental to the role of a public official and should bepublicly declared in Codes of Conduct for public officials . (para.2.83).

9.4 The Commission recommends that Codes of Conduct for public officialsrecognise a legitimate role for an official's personal ethical standards as atest of "rightness" of an action and the necessary inter-relationshipbetween functional obligations (including employment obligations) andpersonal ethics. (para.2.90).

9.5 The Commission recommends the adoption of formal statements ofrelevant ethical principles for public officials which incorporate aspects ofa professional "Code of Ethics" together with a rationale for the desiredrelationship between those ethical principles and the conduct of officials.(para.2.103).

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CHAPTER THREE - CODES OF CONDUCT FOR PUBLIC OFFICIALS

9.6 The Commission recommends that formal Codes of Conduct he developedfor all categories of public officials in Queensland. (para.3.30).

9.7 The Commission recommends that:

(a) General Codes of Conduct should developed for appointed andelected officials.

(b) A general statement of fundamental ethical principles should applyto all categories of public officials, and support more detailed ethicalstandards in general Codes of Conduct.

(c) Such codes should supported to the extent necessary by thepromulgation of agency-specific rules consistent with and expandingon the fund ental principles and general Codes of Conduct. Suchrules should be issued by Chief Executives after they have beendeveloped using appropriate processes of consultation involvingaffected staff and the relevant union(s). They should take the formof fadjuncts to the relevant general code and have the force ofthat code.

(d) General Codes of Conduct should be developed for the Queenslandjudiciary and statutory office-holders . (para.3.47).

9.8 The Commission recommends that:

(a) appointed public officials should not be required to swear an Oath ofOffice or make an Affirmation on taking up their duties; and

(b) an Oath of Office or Affirmation should continue to be regarded asimportant for elected representatives and statutory office-holders asa formal demonstration of their commitment to the ethicalresponsibilities of their office. (para.3.64).

9.9 The Commission recommends that any Codes of Conduct specify thatpersonal and professional ethical standards may properly be taken intoaccount by officials in resolving ethical dilemmas. (para.3.85).

CHAPTER FOUR - REVIEW OF THE EXISTING CODE: OVERVIEW AND GUIDINGPRINCIPLES; PERFORMANCE OF DUTIES

9.10 The Commission recommends that:

(a) Chief Executives should responsible for the effectivepromulgation of the code and its principles within theirorganisations;

(b) this responsibility should include ensuring that the code isreasonably available to all staff-,

(c) it should be a requirement of all public officials that they be familiarwith the provisions of the relevant Code of Conduct; and

(d) it should be a requirement of staff to seek the advice of managementon the application of the code. (para.4.32).

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9.11 The Commission recommends that the Code of Conduct should providegeneralized normative principles and guidance as to reasons for requiredconduct in a range of circumstances . (para.4.47).

9.12 The Commission recommends the adoption , as a specific provision in aCode of Conduct of a requirement of officials to ensure that their privateactivities avoid any conduct, action or form of harassment which distractsother officials from the performance of their proper functions or which islikely to bring the service or agency into disrepute or compromise publictrust in the integrity of government. (para.4.70).

9.13 The Commission recommends that:

(a) the Code of Conduct prescribe a minimum standard of dress andpersonal presentation on the basis of appropriateness to theworkplace, having regard to occupational health and safety , culturaldiversity, local community standards , climate and the need toensure that the Service or an agency is not brought into disrepute;and

(b) Chief Executives should be required to develop, within thestandards set by the Code of Conduct, specific workplace -relatedstandards of dress and personal presentation where these arenecessary , provided that appropriate consultative processes areemployed in developing such standards , and any resulting standardis not arbitrary , unjustifiably discriminatory, or unfair in itsapplication to affected staff. (para.4.81).

9.14 The Commission recommends that s.2.4 of the Queensland Code dealingwith the use of alcohol and other drugs should be strengthened by alsoreferring to an official's obligation to ensure that personal conduct does notbring the Service or an agency into disrepute , or result in unsatisfactorywork performance , or affect the performance or safety of others.(para.4.93).

9.15 The Commission recommends that Chief Executives and their equivalentsshould develop directions for their agencies to clarify acceptable andunacceptable uses of official resources . These specific directions should becompatible with the provisions of the general code . (para.4.105).

9.16 The Commission recommends the adoption and extension of the approachof the current code to provide for bona fide disputes to be raised with anappropriate external body , including the Office of Public Sector Ethics,where appropriate:

(a) where internal resolution has been attempted unsuccessfully;

(b) it is unreasonable to expect the matter to be raised internally; or

(c) where the matter is urgent and significant public interest issues areat stake. (para.4.122).

CHAPTER FIVE - REVIEW OF THE EXISTING CODE: CONFLICTS OF INTERESTS

9.17 The Commission recommends that conflicts of interests involving publicofficials should continue to be regulated by a Code of Conduct. (para.5.25).

9.18 The Commission recommends that provision be made for other Registers ofInterests, modelled on the Register of Member's Interests , which require:

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(a) mandatory ad hoc declaration to an appropriate authority ofsignificant pecuniary and other material interests of Members ofLocal Authorities and certain appointed officials and theirimmediate family members where the interests have the potential togive rise to real or apparent conflict with public duty;

(b) mandatory public registration of the significant pecuniary and othermaterial interests of Members of Local Authorities on an annualbasis; and

(c) mandatory confidential registration of the significant pecuniary andother material interests of certain appointed officials on an annualbasis, through an administrative process appropriate to the officerinvolved according to the following arrangements:

Registration by:

Senior Executive Serviceand equivalents in seniormanagement , seniorprofessionals including senioruniversity administrative staff

Designated senior staffresponsible for contracting,licensing or inspectorialfunctions

Registration with:

Chief Executive Town or ShireClerk/Vice Chancellor/orequivalent as appropriate

Chief Executive/Town or ShireClerklor equivalent asappropriate

ChiefExecutives/Town or Shire ) Chair, PSMC/Mayor or Chairman/Clerks agency headststatutory ) responsible Minister/or Chair ofoffice-holders/heads of ) Council as appropriateacademic institutions )

(para.5.66).

9.19 The commission recommends that the classes of interest previouslyrecommended in its Review of the Guidelines for the Declaration ofRegistrable Interests of Elected Representatives of the Parliament ofQueensland (August 1990 ; 90/Rl) and implemented in the Register ofMember's Interests should be required to be registered by Members ofLocal Authorities and affected appointed public officials . The classes ofsuch registerable interests are:

(i) shareholdings in public and private companies (includingholding companies) indicating the name of the company orcompanies . Where interests are held in a private holdingcompany its investment portfolio , all subsidiary companies andany subsidiary of those companies should be disclosed;

(ii) family and business trusts and nominee companies -

(A) in which a beneficial interest is held , indicating the nameof the trust , the nature of its operation and beneficialinterest, and

(B) in which the official or the official's spouse or dependantare the trustees , indicating the name of the trust, thenature of its operation and the beneficiary of the trust;

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(iii) interests in real estate, including the nature of the interest andin relation to the real estate, its approximate size , location(suburb or area only) and the purpose for which it is used;

(iv) positions in companies, both public and private and whether thedirectorship is remunerated or not, indicating the name of thecompany and its activities;

(v) partnerships , indicating the nature of the interests , and theactivities of the partnership;

(vi) liabilities (excluding short-term credit arrangements) indicatingthe nature of the liability and the name of the creditorsconcerned;

(vii) the nature of any bonds, debentures and like investments, thecumulative value of which exceeds $5, #1#1

(viii) saving or investment accounts, indicating their nature and thename of the bank or other institutions concerned;

(ix) the nature of any other assets (including collections, butexcluding household and personal effects) each valued at over$5,000 ;

(x) the nature of any other substantial sources of income , includingsuch benefits received by a company or trust in which theofficial has an interest as well as by the official personally; and

(xi) any other interests where a conflict of interests with anappointed official's public duties could foreseeably arise or beseen to arise. (para.5.75).

9.20 The Commission recommends that:

(a) The Local Government Act 1936-1991 should be amended to providefor a public Register of Members' Interests to be established by eachLocal Authority in Queensland with identical requirements to theRegister operating for Members of the Legislative Assembly.

(b) The Shire or Town Clerk should be the Registrar of the relevantRegister of Member's Interests.

(c) Clerks and. other senior officials who are responsible to the authorityshould be required to declare their interest confidentially to theCouncil.

(d) Breaches of the provisions of the amended Local Government Act1936-1991 should be dealt with in the first instance by the Ministerfor Local Government.

(e) Members should be required to declare pecuniary interests in anymatter under consideration by the Local Authority . Members shouldbe required to leave the meeting before there is any discussion of amatter in which they have a pecuniary or other personal interest.(para.5.76)

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9.21 The Commission recommends that failure by a public official to identify arelevant conflict of interests be subject to:

(a) Criminal Code provisions in relation to major breaches;

(b) provisions in a Code of Conduct which enables the use of existingdisciplinary procedures in relation to particular (minor) breaches; and

(c) the provisions of the Criminal Justice Act 1989-1991 in relation toserious official misconduct . (para.5.93).

9.22 The Commission also recommends that the Local Government Act1936-1991 requiring declaration of conflicts of interests be reviewed forconsistency with the proposals of this Report and to provide Town andShire Clerks with effective protection . (para.5.95).

9.23 The Commission also recommends that the Criminal Code provisions inrespect of conflicts of interests of public officials be reviewed and amendedso as to apply to all public sector officials . (para.5.96).

9.24 The Commission recommends that:

(a) the Code of Conduct should empower management to take any actionnecessary to resolve an unacceptable conflict including re-assignmentof the official concerned to other duties at an equivalent level;

(b) the Code of Conduct should provide generally that a Chief Executivemay:

(i) declare specified classes of interest which may not be held byspecified categories of official , or by occupants of particularpositions; or

(ii) require an official to dispose of an unacceptable interest.(para.5.111).

9.25 The Commission recommends that the Code of Conduct should providethat:

(a) An official shall not solicit or accept for personal benefit, any form ofbenefit whatsoever (eg. gifts, loans , discounts, considerations , etc.) inconnection with the performance of official duties, except as may beprovided:

(i) as part of their determined entitlements in accordance withtheir terms and conditions of employment; or

(ii) by fellow employees on the official 's resignation, retirement,transfer or similar occasions; or

(iii) as authorised by their Chief Executive.

(b) A Chief Executive may authorise an official or officials of an agencyto accept a gift or benefit in connection with the performance ofofficial duties , in an official capacity on behalf of the agency , providedthat the gift becomes the property of the agency to be retained ordisposed of in accordance with procedures authorised by the ChiefExecutive.

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(c) Chief Executives may authorise an official of the agency to purchasethe item from the agency at the price determined by an independentprofessional valuation, the cost of which is to be met by the officialconcerned.

(d) Gifts or benefits of nominal value and expressions of normalcustomary hospitality may be dealt with as determined by a ChiefExecutive.

(e) A Chief Executive may authorise an official to accept, on behalf of theagency, any benefit (for example, free or subsidised transportation;hospitality and accommodation, the use of equipment or resourcesincluding human resources, or any other gift, benefit or form ofassistance) provided that the Chief Executive is satisfied in eachinstance that:

(i) the benefit will not bring the agency's integrity into question;and

(ii) acceptance of the benefit is necessary, or alternatively is in theagency's interests and in the public interest . (para.5.125).

9.26 The Commission recommends that the Code of Conduct should contain thefollowing provisions to replace the existing provisions dealing with the useof personal influence for private gain:

(a) A public official shall not use , nor seek to obtain, the improperinfluence of any person to obtain appointment, promotion,advancement , transfer or any other advantage , either personally oron behalf of another, or to affect the proper outcome of any procedureestablished under legislation for the management and administrationof a unit of the public sector;

(b) A public official responsible for the making of a decision underlegislation governing any aspect of the management oradministration of a unit of the public sector , or for a recommendationfor the purpose of making such a decision, shall not take account ofany attempt by any person whatsoever to influence the making ofthat decision unless the involvement of that person is required by oris consistent with the provisions of the relevant legislation.(para.5.140).

9.27 The Commission recommends that the Code of Conduct should providethat:

(a) officers seeking election shall be required to take leave without pay(campaign leave) from the time of nomination for election up to thedate of the election until such time as it is clear that they have beensuccessful or unsuccessful. Accrued leave entitlements should beavailable during this period as currently provided in the LocalGovernment Act 1936-1991 , s.7(1A).

(b) Chief Executives (or their equivalent) may reassign an official,subject to the agreement of the PSMC , to other duties at the samelevel and in the same location as far as possible, in order to eliminateconflict of interests arising from p artisan political activity by theofficial. (para.5.161).

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CHAPTER SIX - REVIEW OF THE EXISTING CODE: PUBLIC COMMENT;OFFICIAL INFORMATION; MERIT; PROFESSIONAL ETHICS; AND PRINCIPLES OFGOOD ADMINISTRATION

9.28 The Commission recommends that the present Code's approach to publiccomment by officials should be clarified. It should be extended to offerguidance as to the relevance of

(a)

(b)

official capacity;

duty of loyalty; and

(c) context. (para.6.20).

9.29 The Code should also clarify the considerations relevant to the provision ofinformation to the public and media where required by official duty.(para.6.21).

9.30 The Commission recommends that the Code of Conduct:

(a) prohibit the improper use and improper disclosure of officialinformation; and

(b) clarify acceptable usage and disclosure of official information,consistent with the provisions of the Criminal Code, Freedom ofInformation principles , and the public interest . (para.6.35).

9.31 The Commission recommends:

(a) that the Code of Conduct provide general advice in relation topost-public sector employment , including ethical use of contacts,knowledge and information, and the confidentiality requirementsrelating to former officials including self-employment;

(b) that the Code of Conduct require Chief Executives to establish anadministrative procedure to ensure that officials taking up privatesector employment are aware of any general or specific obligationsapplying to them in relation to the use of official information anddepartmental contact , and the Chief Executives to advise on thisperiod(s) for which such obligations are to apply, where suchemployment could reasonably be seen as involving a conflict ofinterests for the official , or likely to compromise the integrity of thepublic sector. (para.6.49).

9.32 The Commission recommends that the Code of Conduct should requireofficers to obtain specific approval from their Chief Executive to retain feesfrom any private activity which could reasonably be seen to be part of, orsignificantly connected with , their official duties. (para.6.56).

9.33 The Commission recommends that the Code of Conduct reiterate theethical foundations of the merit principle in public employment, andrequire officials to deal with other officials , their subordinates and thepublic in accordance with an objective and fair assessment of their merits,especially in relation to employment matters . (para.6.72).

9.34 The Commission recommends that the Code of Conduct require " publicofficials at all levels to behave with integrity and impartiality and to bepolitically and ideologically non-partisan in their dealings withgovernments and the public , in recognition of their general duty to act inthe public interest. (para.6.84).

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9.35 The Commission recommends that:

(a) the Code of Conduct should declare in principle a qualified primaryduty of the employed professional to their public sector employer; and

(b) the Code of Conduct should deal explicitly with the problem ofdisputes over the application of a Professional Code of Ethics, bysetting out in general terms a process to be followed where officialduties and the requirements of a Professional Code of Ethics are inconflict. (para.6.97).

9.36 The Commission recommends that:

(a) the Proposed Principles of Good Administration should beincorporated in the draft Code of Conduct for Public Officials;

(b) the Code of Conduct should advise and encourage officials toimplement the "Principles of Good Administration" unless it can bedemonstrated that implementation in a particular case would becontrary to the public interest . (para. 6.106).

CHAPTER SEVEN - CODE OF CONDUCT FOR ELECTED REPRESENTATIVES

9.37 The Commission recommends that:

(a) elected officials, Members of the Legislative Assembly and Membersof Local Authorities, should be subject to the same fundamentalethical obligations as appointed public officials.

(b) The Legislative Assembly should be responsible for implementationof the Code of Conduct for Elected Representatives in relation toMembers of the Legislative Assembly.

(c) Each Local Authority should be responsible, subject to any relevantprovisions of the Local Government Act 1936-1991 , for theimplementation of the Code of Conduct for Local Authority Members.

(d) Contractors tendering in accordance with s.19(4) of the LocalGovernment Act 1936-1991, where the tender is of a class requiringconsideration by a meeting of a Council or a Committee of a Council,shall be required to attach to the tender a statement of any knownconflict of interests existing at the time of submission of the tender.(para .7.74).

9.38 The Commission recommends that the proposed Code of Conduct forElected Representatives include specific provisions governing the ethicalobligations of Ministers acting in their roles as Ministers of the Crown.These provisions are in addition to the ethical obligations of otherMembers. (para .7.85).

9.39 The Commission also recommends that the rules governing theadministrative and procedural aspects of the role and functions of aMinister and their rights and entitlements not be included in the proposedCode of Conduct for Elected Representatives , but be the subject of aseparate procedural document to be developed and issued by theGovernment of the day. (para .7.86).

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CHAPTER EIGHT - A PROPOSAL FOR A PUBLIC SECTOR ETHICS REGIME

9.40 The Commission recommends that the appropriate model for theadministration of the proposed public sector ethics regime for Queenslandshould be:

Function:

1. Development of policy,Codes, and legislation,including endorsement ofagency-specific adjunctsto Codes.

2. Development of agency-specific adjuncts to Codes.

3. Investigation andprosecution/sanctions.

4. Appeals againstdisciplinary action

5. Training and Development;advice to agencies onspecific cases.

6. Monitoring/Evaluation

Responsible Agency-- --y.:

"Office of Public Sector Ethics"(OPSE) within the Premier'sportfolio - in conjunction withindividual agencies

CEOs in consultation with OPSE.

1. CJC for breaches constituting"official misconduct" or breach ofCriminal Code.

2. Individual agencies for other (lessserious) breaches of Code, viaexisting disciplinary provisions for"failure to fulfil obligations of anofficial".

3. OPSE where agency fails or isunable to act, (in reserve, e.g. whereCEO involved, or "former official", oragency no longer exists, etc.).

Existing PSME Act or otherrelevant appeals process.

OPSE in conjunction with agencies.

OPSE (of agencies); Ombudsman orParliamentary Committee, orAuditor-General , etc. of OPSE(para.8.43).

9.41 The Commission recommends that the Queensland public sector ethicsregime should be based on legislation , a Public Sector Ethics Act 1992, andassociated regulations (including Codes of Conduct) which declares thefundamental responsibilities and obligations of all public officials inrelation to the government, the Parliament, the public and other officials.(para.8.59).

9.42 The Commission recommends:

(a) The creation of an "Office of Public Sector Ethics " as an independentagency, and located administratively within the Premier's portfolioand responsible for all aspects of the Act's administration . The Officeis to be staffed in accordance with normal public service procedures,and headed by a "Director " responsible to the Premier with a small(3-5 persons) staff.

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(b) That the Office be required , in the performance of its functions, toconsult with and assist relevant units of the public sector which arecovered by the provisions of the Public Sector Ethics Act 1992. TheDirector of the Office is to be empowered to request an agency toinvestigate an alleged breach of the Act (including a breach of theCode or an adjunct to the Code) and to report to the Office on theresults of its investigation.

(c) That the Director of the Office is to be empowered to investigate analleged breach of the Act - (1) where (i) the responsible ChiefExecutive has failed to do so, and (ii) the alleged breach is regardedby the Office as sufficiently significant to warrant investigation; or(2) where the agency in which the breach occurred no longer exists, orwhere the Chief Executive is involved in the matter or is likely to beinvolved.

(d) That the Office is to be required to negotiate the formal endorsementof agency-specific adjuncts to the Code of Conduct developed byindividual Departments , authorities and agencies ; co-ordinate acommon and coherent approach to public sector ethics matters withthe Criminal Justice Commission , the Public Sector ManagementCommission and the Department of Local Government ; and report tothe Parliament on system-wide matters in relation to itsresponsibilities.

(e) The functions of the Office should be:

(i) administration of the Public Sector Ethics Act 1992;

(ii) development of training programs and materials in conjunctionwith users;

(iii) provision of advice to organisations and individuals on thedetailed application of the Public Sector Ethics Act 1992 andcodes;

(iv) endorsement of specific adjuncts to the Code of Conduct whichare developed by individual Departments, authorities andagencies;

(v) provision of detailed , expert advice and assistance todepartments , authorities, agencies and individuals on caseworkand specific ethics and official conduct matters; and

(vi) co-ordination of a common and coherent approach to publicsector ethics matters with the Criminal Justice Commission,the Public Sector Management Commission and theDepartment of Local Government . (para.8.71).

9.43 The Commission recommends the establishment of an Advisory Panel onPublic Sector Ethics to monitor the activities of the Office of Public SectorEthics . The Panel should consist of 3-7 part-time members appointed bythe Governor in Council and selected on the basis of interest , relevantexpertise and community standing in ethics -related matters. The Panelshould meet at least three times annually and report to the Parliament inthe Annual Report of the Office of Public Sector Ethics. (para.8.78).

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9.44 The Commission recommends:

(a) that the Public Sector Ethics Act 1992 should provide that breachesof the Act, or of the provisions of any Code promulgated under the Actby a unit of the public sector other than the Parliament, should beable to be dealt with by management in accordance with the agency'sexisting disciplinary process or alternatively where appropriate, atthe option of the agency , under the Criminal Code or the CriminalJustice Act 1989-1991 . Appeals should be available to persons inaccordance with the normal operation of that disciplinary process.

(b) Where the Parliament adopts a Code of Conduct for ElectedRepresentatives in accordance with the Act, breaches of that Code inrespect of Members of the Legislative Assembly are to be dealt withas determined by the Parliament.

(c) Where a Code of Conduct for Elected Representatives has beenadopted , breaches of the code by Local Authority Members shall bedealt with by the relevant Local Authority. Where disciplinary actionrelies upon the Clerk or another official of the Authority for itsimplementation , any personal action or other form of victimisationtaken against the Clerk or official should constitute an act of officialmisconduct for the purposes of the Criminal Justice Act 1989-1991.(para.8.97).

9.45 The Commission recommends that units of the public sector includetraining on ethics issues and Codes of Conduct in their staff induction andstaff development programs. All public officials should receive trainingand advice on the content of the Public Sector Ethics Act 1992 and therelevant Code of Conduct and any adjunct rules. (para.8.110).

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CHAPTER TEN

ACKNOWLEDGEMENTS AND CONCLUDING REMARKS

10.1 The Commission wishes to express its appreciation to all persons andorganisations who made submissions and comments in response to thematters raised in Issue Paper No. 15, or who otherwise provided theirviews for this Review of Codes of Conduct for Public Officials. Allsubmissions, comments and opinions expressed have been taken intoaccount. Public input is essential to the Commission's review process andthe Commission benefited greater from the public response to its review.

10.2 The Commission also wishes to express its appreciation to the followingmembers of staff who assisted the Commission during the conduct of thereview, namely: Howard Whitton (Project Officer), John Greenaway andMary Seefried (Senior Project Officers), Robert Ahern (Project Officer),Jane Chester, Simone Webb, Don Woodrow and Nicola Burrows (ResearchOfficers), Stuart Russell and Michael Clair (acting Research Officers),Sharon Treveton and Wendy Rikihana (Administrative Assistants).

10.3 The Commission thanks Professor David Corbett, of the Public SectorManagement Institute, Monash University, who acted as Consultant inthis review, and Professor Victor Callan of the Graduate School ofManagement in the University of Queensland, for developing the EthicsSurvey.

10.4 The Commission is also grateful to Errol Wilson (Senior AssistantParliamentary Counsel) for his work in preparing the Draft Bill for thePublic Sector Ethics Act 1992.

10.5 The Commission wishes to thank each of the individuals who prepared andpresented papers to the Public Seminar (a list of contributors and theirpapers is at Appendix C), and the considerable number of academics andpublic officials who provided advice during the conduct of the review. TheCommission also wishes to express its appreciation to the speakers whocontributed to the Seminar.

10.6 Lastly the Commission wishes to express its appreciation to TomSherman, former Chairman of the Commission.

10.7 The Commission is satisfied that the Draft Bill and the attached Code ofConduct for Public Officials and Code of Conduct for ElectedRepresentatives gives effect to its recommendations. The Commissionrecommends that the Parliament give consideration to the two Codes ofConduct and arrange for them, with any modifications considerednecessary, to be attached to the Public Sector Ethics Act 1992, if it isproclaimed, as Regulations to the Act. The Commission has already notedat para.1.27 that some further development of the Bill in connection withtransitional arrangements is required.

10.8 This Report was adopted unanimously at a meeting of the Commission on10 April 1992. Commissioners Davies, Hall, Hughes and Hunter werepresent at the meeting.

COLIN A HUGHESActing Chairman

7 May 1992

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Codes of Conduct

AUSTRALIA

Private Sector/Professional Codes.

Australian Association of Social Workers 1990, Code of Ethics & By-laws on Ethics,November.

Australian Computer Society 197-, Code of Professional Conduct.

Australian Institute of Agricultural Science, Code of Ethics, unpub.

Royal Institute of Public Administration Australia (R.I.P.A.A.), Draft Code ofEthics for Public Servants and Some Suggestions for the Implementation ofsuch Codes, Submission to fellow members of R.I.P.A.A. by the Ethics InterestGroup of the N.S.W. Branch, unpub.

Public Sector Codes.

Australia , Department of Defence , Ethics: Advice and Guidance relevant to theManagement of Defence Resources , Defence Ethics and Fraud AwarenessCampaign.

Australia, Parliament 1986, Guidelines for Provision of Assistance to SenateEstimates Committees by the Australian Audit Office, Senate, unpub.

Bureau of Employment Vocational and Further Education and Training , Code ofEthics.

Commonwealth , Ministerial Code of Conduct, unpub.

Commonwealth 1987 , Guidelines on Official Conduct of Commonwealth PublicServants , AGPS, Canberra.

Institute of Municipal Management , Code of Ethics.

New South Wales 1989 , Code of Conduct for Public Sector Executives.

New South Wales 1990 , Code of Conduct and Ethics for Public Servants , Draft forDiscussion , November.

New South Wales 1990 , Local Government Code of Conduct and Manual, July.

New South Wales , Independent Commission Against Corruption , Code of Conduct.

Queensland 1988, Code of Conduct for Officers of the Queensland Public Service,Queensland Government Printer.

Queensland , Cabinet Office 1990 , Ministers ' Code of Ethics , Queensland CabinetHandbook , March.

Queensland , Department of the Premier , Economic and Trade Development 1990,Guidelines for the Financial Management of the Office of the Minister.

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Queensland Police Service 1990 , Code of Conduct, The Commissioner of theQueensland Police Service.

Queensland, Queensland Electricity Commission , Code of Conduct , Pursuant toPublic Finance Standard 625.

Tasmania 1989, Ministerial Standards, February, unpub.

Victoria 1989, Pecuniary Interest Handbook: A Guide for Council Officers andCouncillors, Local Government Department, June.

Western Australia 1988, Rights, Responsibilities and Obligations: A Code ofConduct for Public Servants, Public Service Commission of Western Australia.

CANADA

Canada 1985, Conflict of Interest and Post-Employment Code for Public OfficeHolders, Assistant Deputy Registrar General of Canada, Revised Version,Ottawa, November.

Canada 1985, Conflict of Interest and Post-Employment Code for the Public Service,Treasury Board Secretariat, Ottawa.

Gouvernement du Quebec, Analyse Des Normes D'Ethique Regissant LesFonctionnaires, Quebec.

Gouvernement du Quebec, L'Ethique Dans La Fonction Publique Quebecoise,Quebec.

NEW ZEALAND

New Zealand 1990, Public Service Code of Conduct, State Services Commission.

UNITED STATES

United States 1989, Executive Order 12674, 12 April.

List of Legislation

AUSTRALIA

COMMONWEALTH Administrative Appeals Tribunal Act 1975.

Administrative Decisions (Judicial) Review Act 1977.

Crimes Act 1914

Freedom of Information Act 1982.

Ombudsman Act 1975.

Public Service Act 1922 and Regulations.

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NEW SOUTH WALES Public Sector Management Act 1988.

Independent Commission Against Corruption Act 1988.

QUEENSLAND Constitution Act 1867-1988.

Criminal Justice Act 1989-1991.

Electoral and Administrative Review Commission Act 1989-1991.

Electoral and Administrative Review Act 1989-1991.

Financial Administration and Audit Act 1977-1991.

Local Government Act 1936-1991.

Public Finance Standards.

Public Sector Management Commission Act 1990-1991.

Public Service Management and Employment Act 1988-1991.

SOUTH AUSTRALIA Government Management and Employment Act 1985.

TASMANIA Tasmanian State Service Act 1984.

VICTORIA Constitution Act 1975.

Public Servants Ethical Conduct (Joint Select Committee)Act 1976.

Public Service Act 1974 and Regulations.

WESTERN AUSTRALIA

Public Service Act 1978.

CANADA

Parliament of Canada Act

Bill C-46 1989, The Members of the Senate and House of Commons Conflict ofInterest Act, Tabled 9 November.

NEW ZEALAND

Local Authorities (Members' Interest) Act 1968

UNITED STATES

Code of Ethics for Government Service - Public Law 96-303

Ethics Reform Act of 1989 - Public Law 101-194

Al

APPENDIX A

ADVERTISEMENT CALLING FOR PUBLIC SUBMISSIONS

ev- ELECTORAL ANDADMINISTRATIVE

rte... REVIEW COMMISSIONOUEENSLAND

e e ' i

The Commission seeks written public submissions on its review project on Codes ofConduct for Public Officials in Oueensland . This review will culminate in a report to theChairman of the Parliamentary Committee for Electoral and Administrative Review, theSpeaker of the Legislative Assembly and the Premier.

Issues Paper No . 15 on Codes of Conduct for Public Officials is now available.

Although the Issues Paper focuses on the current Code of Conduct for Officers of theOueensland Public Service , it is the intention of the Commission that issues raised willbe considered in relation to all public officials whether appointed or elected, includingthose at the local government level. Matters considered in Issues Paper No. 15 include:

(a) what ethical standards is it reasonable to expect Oueensland public officials toobserve in the performance of their official duties and in their conductgenerally:

(b) what are appropriate justifications for such standards;(c) can such standards be effectively expressed in an official Code of Conduct

(d) how may the observance of such standards be encouraged:

(e) should any consequences follow breaches of such standards?

Copies of Issues Paper No . 15 may be inspected at major Public Libraries , selectedMagistrates Courts and the Commission 's Public Reading Room from Monday 22 July1991. Persons wishing to obtain a copy of Issues Paper No . 15 may contact theCommission on 237 9696 (Brisbane Callers ) or (008 ) 177 172 (Country Callers).

Written submissions should be marked Reference 017S and sent to the Commission by5.00p . m. on Friday 4 October 1991 . The Commission's address is:

ELECTORAL AND ADMINISTRATIVE REVIEW COMMISSIONP.O. BOX 349 NORTH OUAY 4002 (REFERENCE 0175)

All submissions received will be available for public inspection at the Commission'sPublic Reading Room from 7 October 1991 and at major Public Libraries and selectedMagistrates Courts from 14 October 1991. Comments in response to initial submissionsshould be sent to the Commission by Friday 22 November and will be available forinspection in the Commission 's Public Reading Room from Monday 25 November.

Commission 's Public Reading Room : Level S. Capital Hill, 85 George Street , Brisbane.

Telephone : (07) 237 9696 . (008) 177 172: Facsimile: (07) 237 9778.

TOM SHERMANChairman , 20 July

B1

APPENDIX B

CODES OF CONDUCT FOR PUBLIC OFFICIALS -PUBLIC SUBMISSIONS

Submission Name/Organisation Address DateNo, Received

1 D Jordan 4 Kefford StreetWELLINGTON POINT

07/08/91

QLD 4160

2 Environmental YouthAlliance

V DaviesOfficerEnvironmental Youth AllianceGPO Box 1507BRISBANE

12/08/91

QLD 4001

3 Water ResourcesCommission

Commissioner of WaterResources

Water Resources CommissionGPO Box 2454BRISBANE

21/08/91

QLD 4001

4 Aramac Shire Council G J CoultonShire ClerkAramac Shire CouncilPO Box 65ARAMAC

16/09/91

QLD 4726

5 Livingstone ShireCouncil

A J BrownShire ClerkLivingstone Shire CouncilPO Box 600YEPPOON

19/09/91

QLD 4703

6 A Sandell Lot 85Greensward RoadTAMBORINE

26/09/91

QLD 4270

7 Victims-of-Corruption D FritzPresidentVictims-of-Corruption359 Hamilton RoadCHERMSIDE

27/09/91

QLD 4032

8 Ipswich CityCouncil

D L SmallwoodActing Town ClerkIpswich City CouncilPO Box 191IPSWICH

30/09/91

QLD 4305

B2

Submission Name/Organisation Address DateNo. Received

9 Queensland StateService Union

L M J GillespieGeneral SecretaryQueensland State ServiceUnion

GPO Box 545BRISBANE

30/09/91

QLD 4001

10 Rockhampton CityCouncil

R D NobleCity Manager/Town ClerkRockhampton City CouncilPO Box 243ROCKHAMPTON

30/09/91

QLD 4700

11 Bundaberg CityCouncil

D A ByrnesTown ClerkBundaberg City CouncilPO Box 538BUNDABERG

03/10/91

QLD 4670

12 R McKinnon Lot 1New England HighwayEAST GREENMOUNT

03/10/91

QLD 4359

13 IndependentCommission AgainstCorruption

E MoorePrincipal Corruption

Prevention OfficerIndependent CommissionAgainst Corruption

Box 500 GPOSYDNEY

04/10/91

NSW 2001

14 G Gorrie 68 Sheffield StreetOXLEY

04/10/91

QLD 4075

15 Department of thePremier, Economicand Trade Development

E F F FingerDirector-GeneralDepartment of the Premier,

Economic and TradeDevelopment

PO Box 185NORTH QUAY

04/10/91

QLD 4002

B3

Submission Name/Organisation Address DateNo. Received

16 The Local Government G T HoffmanAssociation of Executive DirectorQueensland (Inc.) The Local Government

Association of Queensland(Inc.)

PO Box 130NEWSTEADQLD 4006

04/10/91

17 C W Thatcher PO Box 770DARLINGHURSTNSW 2010

18 Cr H Schwabe M.S. 1852KENILWORTHQLD 4574

19 Queensland Watchdog C GriffithCommittee Secretary

Queensland WatchdogCommittee

PO Box 998TOOWONGQLD 4066

20 Brisbane City Council P W BertholdTown ClerkBrisbane City CouncilGPO Box 1434BRISBANEQLD 4001

07/10/91

07/10/91

07/10/91

04/10/91

21-23 The information pertaining to these submissions has been omittedas they are confidential or contain defamatory information.

24 Public Sector Dr G DavisManagement Commissioner for PublicCommission Sector Equity

Public Sector ManagementCommission

PO Box 190NORTH QUAYQLD 4002

09/10/91

25 B Marney 50A Alford StreetTOOWOOMBAQLD 4350

26 The Queensland N J NicolaidesBranch of Australian PresidentMedical Association The Queensland Branch of

Australian MedicalAssociation

PO Box 123RED HILLQLD 4059

10/10/91

11/10/91

B4

Submission Name/Organisation Address DateNo. Received

27 Woongarra Shire Council R B KernkeShire ClerkWoongarra Shire CouncilPO Box 540BUNDABERG

11/10/91

QLD 4670

28 Bribie Island Chamberof Commerce Inc.

J HobbsHon. SecretaryBribie Island Chamber of

Commerce Inc.PO Box 223BRIBIE ISLAND

14/10/91

QLD 4507

29 Criminal JusticeCommission,Queensland

Sir Max Bingham QCChairmanCriminal Justice CommissionPO Box 157NORTH QUAY

12/11/91

QLD 4002

30 R J Tramacchi 58 Kylie AvenueFERNY HILLS

14/11/91

QLD 4055

31 Queensland Departmentof Transport

D G StevensonDirector-GeneralQueensland Department ofTransport

GPO Box 1549BRISBANE

20/11/91

QLD 4001

32 The information pertaining to this submission has been omitted asit is confidential or contains defamatory information.

33 C W Thatcher PO Box 770DARLINGHURST

28/11/91

NSW 2010

34 Independent CommissionAgainst Corruption

E MoorePrincipal Corruption

Prevention OfficerIndependent CommissionAgainst Corruption

Box 500 GPOSYDNEY

02/11/91

NSW 2001

35 T N Quinn PO Box 1512BUNDABERG

18/12/91

QLD 4670

B5

Submission Name/Organisation Address DateNo. Received

36 Brisbane City Council P W BertholdTown ClerkBrisbane City CouncilGPO Box 1434BRISBANE

31/01/92

QLD 4001

37 J Shirley M/S 944PINE MOUNTAIN

10/02/92

QLD 4306

38 Dr R Robinson Carnley AvenueKOTARA

02/03/92

NSW 2289

39 National Party ofAustralia - Queensland

J G Gillan M.P.R.I.AResearch/Liaison OfficerNational Party of Australia

QueenslandPO Box 403SPRING HILL

12/03/92

QLD 4004

Cl

8.45-9.00

9.00-9.30

9.30 - 10.30

10.30 - 11.00

11.00 - 11.30

11.30 - 12.10

12.10 - 12.30

12.30-1.45

1.45-2.10

2.10-2.20

2.20-3.00

APPENDIX C

FREE PUBLIC SEMINAR

"PUBLIC ETHICS, PUBLIC TRUST -CODES OF CONDUCT FOR PUBLIC OFFICIALS"

MONDAY 4 NOVEMBERTUESDAY 5 NOVEMBER 1991

Seminar Room - State Works Centre80 George Street, Brisbane

Introduction Tom ShermanChairman, EARC

Theme One: Public SectorEthics - Legal and PoliticalPerspectives

Australian ConstitutionalFrameworks

Westminster Traditions andPublic Service in AustraliaConflicting Conventions andCompeting Loyalties

Panel Discussion

Chair - Prof Colin HughesCommissioner, EARC

Dr John UhrPublic Policy, ANU

Mr Denis IvesC'wth Public ServiceCommissionerDr Glyn Davis, PSMCDr John PatersonCommunity Services Vic.

Dr UbrMr IvesDr DavisDr Paterson

MORNING TEA

Misconduct, Corruption andthe Integrity of Officials

Prof. Paul Finn, ANUMr Peter RobertsC'wth Attorney-General's Dept.

Questions/Discussion

LUNCH

Elected and AppointedOfficials - Public OfficialsPolitics and "the PublicInterest"

Prof. C Selby-SmithPublic SectorManagement InstituteMonash University

Questions/Discussion

Administrative Ethics in aCorporatised Public Sector:the Impact of Business Ethicson Public Service

Dr Helen McKennaCanberra Bulletin ofPublic AdministrationMr Frank Haly AM FCAQueensland President,Australian Institute ofCompany Directors

C2

(DAY ONE cont'd)

3.00-3. 10 Questions/Discussion

3.10-3.30 AFTERNOON TEA

Theme Two: Codes of Conductfor Public Officials

3.30-4. 15 Codes of Conduct in Theoryand Practice

4.15-5.00 Official Capacity vs PrivateCapacity - Competing Interestsand Conflicting Responsibilities

5.00-5. 30 Panel Discussion

TUESDAY 5 NOVEMBER

Theme Three: AdministrativeEthics and Good Public SectorManagement

8.45-9.50 "Professional Ethics" in thePublic Sector

9.50-10.00 Questions/Discussion

10.00 - 10.55 Codes of Conduct - SomeImplications for Administration

10.55 - 11.15 MORNING TEA

11.15 - 12.15 Codes of Conduct - SomeImplications for SeniorManagers

12.15 - 12.30 Questions/Discussion

12.30 - 12.40 Concluding Remarks

Chair - Ms Virginia HallCommissioner, EARC

Prof. Gordon ClarkInstitute of Ethics andPublic Policy, MonashUniMs Elizabeth Moore,NSW ICAC

Cr John Kelly, CJCMr Greg Hoffman, LocalGovernment Associationof QueenslandMr Mike Reynolds AMJames Cook University

Prof ClarkMs MooreCr KellyMr HoffmanMr Reynolds

Chair - Ms Virginia HallCommissioner, EARC

Prof. Charles SampfordFaculty of Law,Griffith UniversityMs Janine Walker,QSSUDr Graham Row, AMA

Ms Ann ForwardMerit Protection andReview AgencyMs Jennifer Norton,PSMCMr Peter ForsterThe Consultancy Bureau

Dr Carol DalglishQld Police ServiceProf. Vic CallanGraduate School ofManagement, Universityof QldMr Barry NutterDEVETIR

Matt Foley, MLAChairman,ParliamentaryCommittee for Electoraland AdministrativeReview

C3

QUEENSLAND

ELECTORAL ANDADMINISTRATIVEREVIEW COMMISSION

DATES: MONDAY 4 NOVEMBER, 1991 (8.30 AM-5.00 PM)TUESDAY 5 NOVEMBER 1991 (8.30 AM-12.30 PM)

VENUE: SEMINAR ROOM, STATE WORKS CENTRE80 GEORGE STREET, BRISBANE

The Electoral and Administrative Review Commission will hold a free publicseminar as part of its Review of Codes of Conduct for Public Officials inQueensland . The Seminar will cover several themes including-• Codes of conduct - legal and political perspectives• Misconduct, corruption, and the integrity of officials• The relevance of Westminster traditions of government today• Business ethics and the public sector• Conflict of interest in the public service and local government• Codes of conduct - implications for senior managers• Professional ethics In the public sectorSpeakers will be drawn from a wide range of bac kgrounds In Queenslandand other States. The Public Sector Management commission, the CriminalJustice Commission, the Commonwealth Public Service Commission, theNSW Independent Commission Against Corruption, the private sector, localgovernment , unions , and professional bodies will be represented. Otherspeakers will Include:• Prof. Charles Sampford (Law, Griffith University)• Dr Carol Dalglish (Queensland Police Service)• Mr Frank Haly (Australian Institute of Company Directors, Brisbane)• Prof. Chris Selby-Smith (Public Sector Management Institute, Monash

University)• Ms Janine Walker (Queensland State Service Union)• Dr John Paterson (Director General, Community Services Victoria)• Mr Greg Hoffmann (Local Government Association of Queensland)• Prof. Victor Callan (Graduate School of Management, University of

Queensland)• Mr Mike Reynolds (Local Government, James Cook University).• Prof. Gordon Clark (Institute for Ethics and Public Policy, Monash

University)• Mr Peter Forster (Management Consultant, Brisbane)Enquiries and Registration:Sharon 11reveton 'telephone: (07) 237 9696PO Box 349 (008) 177 172NORTH QUAY Q 4002 Fax (07) 237 9778

Registration Forms should be lodged with EARC by Monday 28 October1991.

Jim LowthExecutive Officer

H4"IC

Dl

APPENDIX D

CODE OF CONDUCT FOR OFFICERS OF THEQUEENSLAND PUBLIC SERVICE 1988

CODE OF CONDUCT

for

Officers of the

Queensland Public Service

Approved by the Governor in Council

D2

TABLE OF CONTENTS

Acknowledgement il

Definitions iii

1. OVERVIEW AND GUIDING PRINCIPLES 1

2. PERFORMANCE OF DUTIES 22.1 Service to the Government and the Public 22.2 Conduct Towards Other Departmental Employees 22.3 Standards of Dress 32.4 Use of Alcohol and Drugs 32.5 Use of Official Resources 32.6 Lawful Directions 3

3. HANDLING CONFLICTS OF INTEREST 43.1 General Procedures 43.2 Acceptance of Benefits 43.3 Reporting Offer of Benefits 53.4 Influence to Secure Advantage 53.5 Political Activity by Officers 6

4. OFFICIAL INFORMATION AND PUBLIC COMMENT 74.1 Use of Official Information 74.2 Release of Official Information 74.3 Public Comment. 84.4 Attendance at Court or Official Enquiries 8

ATTACHMENT IRelated Provisions in the Act and Regulations

9

D3

Ii

ACKNOWLEDGEMENTS

In developing this Code, the Queensland Governmentacknowledges the use ofpublic sector codes of conductoperative in other Australian States, the Commonwealthand overseas. Particular acknowledgement is made of the"Guidelines on Official Conduct of Commonwealth PublicServants" (1987).

D4

DEFINITIONS

In this Code, the following definitions apply-

"Benefit" includes g!ft, gratuity , remuneration , allowance,fee, subsidy , consideration , free service and entertainment.

"Chief Executive" means the Chief Executive of a departmentor an officer acting as delegate of the Chief Executive

"Officer" means an officer of the Public Service defined inSection 4(2) of the Act.

"Restricted Drugs" and "Dangerous Drugs" mean thosesubstances listed in Schedules 4 and 8 respectively of thePoisons Regulations of 1973.

"The Act" means the Public Service Management andEmployment Act 1988 and Regulations

D5

i

1. OVERVIEW AND GUIDING PRINCIPLES

This Code of Conduct outlines general standards of workperformance and ethical conduct expected of all officers based onthe following guiding principles -

m

m

m

Officers should perform their duties with professionalismand integrity , and effectively and efficiently serve theGovernment and the public;

Fairness and equity should be observed by officers inall official dealings , including dealings with the publicand other departmental employees; and

Real or apparent conflicts of interest should be avoided.However , officers should not be subject to unnecessaryrestrictions on their private activities purely as aresult of their employment with the Crown, wheresuch activities do not involve a conflict of interest oradversely affect their work performance.

This Code of Conduct does not replace any other code of conductlawfully approved for application to individual classes of officerwithin the Service and should be read in conjunction with anysuch code.

Officers should -

•• familiarise themselves with this Code; and

•• ensure that its provisions are observed.

Failure to comply with the provisions of this Code may begrounds for disciplinary action under Section 29 of the Act.

D6

2

2. PERFORMANCE OF DUTIES

2.1 Service to the Government and the Public

Officers should -

devote themselves to the efficient and effective achievement ofthe Government's declared objectives;

adhere to the highest standards of professional competence,integrity and honesty;

provide conscientious service to the elected Governmentirrespective of the political allegiance of the officer;

provide conscientious, effective, efficient and courteousservice to all those with whom they have official dealings; and

•• be guided by principles of fairness and equity especially incircumstances where officers exercise a particularresponsibility for the care or supervision of clients and otherpersons.

2.2 Conduct Towards Other Departmental Employees

Officers should -

treat other departmental employees with respect and dignity;

not mistreat other employees, or distract them from carryingout their duties. Examples of unacceptable conduct are -

inducements to infringe this Code; andall forms of intimidation and harassment, includingsexual and racial harrassment;

ensure the confidentiality of matters of a personal naturerelating to departmental employees; and

not allow personal relationships, both inside and outside thework environment, to adversely affect their work performanceor that of other departmental employees.

D7

3

2.3 Standards of Dress

Officers should conform to standards of dress determined bytheir Chief Executive.

2.4 Use of Alcohol and Drugs

Officers should not -

at any time, allow the consumption of alcohol or restricted ordangerous drugs to adversely affect their work performanceor official conduct: or

consume alcohol while on duty except where related to theofficer's official duties and subject to the Chief Executive'sapproval and conditions.

2.5 Use of Official Resources

Departmental facilities and other physical resources should beused for their proper purpose and provided with due care andmaintenance.

2.6 Lawful Directions

Officers should obey any lawful direction given -

by their supervisor, or

in the absence of their supervisor , any person having theauthority to give the direction.

Where on reasonable grounds an officer believes that a directionis improper or illegal, the officer -

should refer the grounds for objection to their supervisor orthe person responsible for the direction;

where instructed to proceed as originally directed and if theofficer continues to consider the direction improper or illegal,may refer the objection to the Chief Executive and shouldconfirm the objection in writing at the earliest opportunity.

D8

4

3. HANDLING CONFLICTS OF INTEREST

3.1 General Procedures

In the course of their duties, officers should not give preferenceto any person, organisation or interest (whether pecuniary,commercial, political, religious, or other) as a result of any

private association with that person, organisation or interest.

Immediately on becoming aware that a conflict between privateinterests and official duty, whether real or apparent, has arisenor is likely to arise (including any conflict of interest involvingremuneration or employment external to the Public Service),officers should disclose such details in writing to their ChiefExecutive.

Such disclosure should automatically be made by officersengaged in regulatory, inspectorial, personnel selection or otherdiscretionary functions when dealing with relatives, close friendsor business acquaintances.

On receipt of a disclosure from an officer, the Chief Executive willdetermine the extent of any conflict of interest and direct theaction required to resolve the conflict. Failure to comply withsuch direction may make the officer liable to disciplinary actionunder the Act.

At any time, an officer who is unsure whether a conflict ofinterest exists with official duties should consult any relevantdepartmental guidelines or, where appropriate, seek a directionfrom the Chief Executive.

3.2 Acceptance of Benefits

Officers should -

as a general principle, not solicit or receive any benefit (otherthan provided for as part of their terms and conditions ofemployment) in respect of services performed, whether duringworking hours or not, in connection with their duties; and

avoid situations in which the acceptance of a benefit orpotential benefit could give even the appearance of a conflictof interest with their official duties.

D9

5

Where an officer's duties require the acceptance of a benefit, andthe benefit is accepted, the fact of its acceptance should bereferred to the Chief Executive for determination as to whetherthe benefit should be returned, or accepted on a permanentbasis. Where permanently accepted, the Chief Executive mayspecify the conditions for such acceptance.

The Chief Executive may authorise an officer to accept free travelor hospitality where the Chief Executive is satisfied that -

•• acceptance does not constitute conflict of interest: and

•• where acceptance is necessary for the proper conduct ofofficial duties.

Where acceptance of such travel or hospitality could, in theopinion of the Chief Executive, lead to real or apparent conflict ofinterest, the Chief Executive will determine the appropriateaction to be taken.

Chief Executives may issue directions in relation tocircumstances in which officers generally, or certain classes ofofficers, may accept specific benefits without reference to theChief Executive and to impose conditions relating to theirretention and disposal. Where such directions are issued, theChief Executive should be satisfied that no real or apparentconflict of interest is likely to arise in the absence of specificreference.

3.3 Reporting Offer of Benefits

An officer should immediately report to the Chief Executive anycircumstances where an offer of a benefit is made, regardless ofwhether it is accepted or not, if the officer feels that suchcircumstances involve an attempt to induce favoured treatment.

3.4 Influence to Secure Advantage

Officers should -

•• not seek the improper influence or interest of any person toobtain promotion, transfer or other advantage; and

D10

6

•• manage their personal finances so as not to come underpecuniary obligation to their subordinates.

3.5 Political Activity by Officers

Officers have the same right as any other citizen to freedom ofpolitical association. However, any political activity by officersshould clearly be conducted in a private capacity.

For officers engaged in political activity, such as holding office ina party or membership of a party committee, care should beexercised that a conflict of interest does not arise with officialduties.

Dll

7

4. OFFICIAL INFORMATION AND PUBLIC COMMENT

4.1 Use of Official Information

Official information should not be used by officers to gainimproperly any kind of advantage for themselves, or for anotherperson or organisation.

Unless approved by their Chief Executive, officers presentingmaterial at meetings or lectures sponsored by individuals ororganisations outside the Public Service should not accept feeswhere -

officers utilize a skill, knowledge or information deriveddirectly from their employment with the Government ratherthan a professional/specialist skill;

meetings / lectures are supported by the respectiveDepartment and conducted during normal working hours:

the Crown has ownership of the intellectual or physicalproperty involved;

there may be a breach of the common law principles of theemployee's duty of fidelity to the interests of the employer,including the use of the employer's materials or property.

Where a fee is received by an officer in the above circumstances,it should be paid immediately into departmental funds.

4.2 Release of Official Information

Officers are not prohibited from disclosing official informationwhich would normally be given to any member of the publicseeking that information. However, official information of aconfidential or privileged nature should not be disclosed tounauthorised persons or organisations, except with the approvalof the Chief Executive.

D12

s

4.3 Public Comment

As members of the community, officers have a right to makepublic comment and enter into public debate on political andsocial issues. However, there are circumstances where publiccomment or debate by officers is not acceptable. These includecircumstances where -

a public comment made in a private capacity gives rise topublic perception that it is in some way an official comment ofthe Government or the department in which the officer isemployed;

an officer is directly involved in advising on or directing theimplementation or administration of Government policy, andthe public comment would compromise the officer's ability todo so;

•• a public comment amounts to criticism sufficiently strong orpersistent to give rise to a perception that the officer is notprepared to implement or administer the policies of theGovernment;

a public comment on departmental administration causesserious disruption in the work place; and

a public comment amounts to personal attack.

Where officers are in any doubt as to the propriety of a proposedpublic comment they should consult their supervisor or ChiefExecutive, and should observe any directions made by theirChief Executive governing public comment relating to theirindividual departments.

4.4 Attendance at Court or Official Enquiries

Officers who are summoned, subpoened or called as a witness orjuror at a court of law or any legally constituted enquiry shouldimmediately advise their supervisor and, unless otherwiseexempted. attend the court or enquiry as specified.

D13

9

ATTACHMENT I

RELATED PROVISIONS IN THE ACT AND REGULATIONS

Sections of the Act and Regulations which relate to this Code are identifiedbelow.

PROVISION SUBJECT

Public Service Management and Employment Act

Section 6 Principles of public administration in theQueensland Public Service

7 Principles of personnel management in theQueensland Public Service

12 Responsibilities of Chief Executives for the efficientand proper management of their departments

29 Discipline provisions including grounds fordiscipline , penalties , and responsibilities ofMinisters and Chief Executives

30 Suspension of officers

32 Appeals against promotional appointments anddisciplinary action

Public Service Management and Employment Regulations

Number 6 Officers to be familiar with the provisions of the Act,Regulations and Code of Conduct

7 Officers to report any breach of the Regulations

45 Regular performance appraisal and remedial actionfor officers

46 Right of officers to view adverse reports and providewritten explanation

48 Notification of indictable offences

51-62 Promotion and Discipline appeals

63 Departmental grievance procedures for officers

65 Access to an officer's file

V. R. Ward , Government Printer , Queensland-1991

El

APPENDIX E

DRAFT BILL FOR PUBLIC SECTOR ETHICS ACT 1992

PUBLIC SECTOR ETHICS BILL 1992

TABLE OF PROVISIONS

Section

PART 1-PRELIMINARY

Page

1 Short title ..................................................... 2

2 Crown bound ................................................... 2

3 Definitions ....................................................

PART 2--ETEIICAL PRINCIPLES

2

4 Declaration of ethical principles ..................................

PART 3-PRIMARY OBLIGATIONS OF PUBLIC OFFICIALS

Division 1-Application of primary obligations

4

5 Application .................................................... 5

6 Compliance ...................................................

Division 2-Primary obligations of elected public officials

5

7 Respect for the law and the system of government ................... 5

8 Respect for persons ............................................. 6

9 Integrity ....................................................... 6

10 Diligence ..................................................... 6

11 Economy and efficiency .........................................

Division 3-Primary obligations of appointed public officials

6

12 Respect for the law and the system of government ................... 7

13 Respect for persons ............................................. 7

14 Integrity ....................................................... 7

15 Diligence ..................................................... 8

16 Economy and efficiency .........................................

PART 4-CODES OF CONDUCT FOR PUBLIC OFFICIALS

Division 1-Codes of conduct

8

17 Preparation of codes ............................................ 8

18 Application of codes ............................................ 8

19 Purpose of codes ............................................... 9

20 Contents of codes ............................................... 9

21 Approval of codes .............................................. 10

E2

Division 2-Adjuncts to codes of conduct

22 Preparation of adjuncts to codes ................................... 10

23 Application of adjuncts to codes .................................. 10

24 Purpose of adjuncts to codes ...................................... 11

25 Contents of adjuncts to codes ..................................... 11

26 Approval of adjuncts to codes .....................................

PART 5-RESPONSIBILITIES OF CHIEF EXECUTIVES

11

27 Definition ..................................................... 11

28 Distribution of ethics codes ....................................... 11

29 Inspection of ethics codes ........................................ 12

30 Training of staff ................................................ 12

31 Procedures and practices of public sector units ...................... 12

32 Implementation statements .......................................

PART 6-INVESTIGATIONS

12

33 Definition ..................................................... 13

34 Investigations by chief executives ................................. 13

35 Investigations by Director ........................................ 13

36 Investigations by members ....................................... 14

37 Procedure for investigations ...................................... 14

38 Powers of investigators .......................................... 15

39 Submissions by public officials concerned .......................... 15

40 Power to obtain information from other sources ......................

PART 7-ENFORCEMENT

15

41 Contraventions by parliamentary members .......................... 16

42 Contraventions by local authority members ......................... 16

43 Contraventions by appointed public officials ........................ 16

44 Submissions by Office arising out of disciplinary actions ..............

'PART 8-ADMINISTRATION

Division 1-Office of Public Sector Ethics

17

45 Establishment of Office .......................................... 17

46 Functions of Office ............................................. 17

47 Powers of Office ................................................ 18

48 Composition of Office ........................................... 18

49 Reports ....................................................... 18

E3

Division 2-Director of the Office

50 Director ....................................................... 19

51 Powers of Director .............................................. 19

52 Delegation of powers by Director .................................. 19

53 Acting Director .................................................

Division 3 -Advisory Panel on Public Sector Ethics

19

54 Establishment of Advisory Panel .................................. 20

55 Functions of Advisory Panel ...................................... 20

56 Powers of Advisory Panel ........................................ 21

57 Composition of Advisory Panel ................................... 21

58 Appointment of members ........................................ 21

59 Fees and allowances ............................................ 21

60 Leave of absence ............................................... 22

61 Resignation .................................................... 22

62 Terms of appointment ........................................... 22

63 Termination of appointment ...................................... 22

64 Acting member ................................................. 22

65 Times and places of meetings .................................... 23

66 Proceedings at meetings ......................................... 23

67 Reports .......................................................

PART 9-MISCELLANEOUS

24

68 Immunity ...................................................... 24

69 Regulations .................................................... 24

PART 10-TRANSITIONAL

E4

1992

A BILLFOR

An Act relating to public sector ethics

E5

2Public Sector Ethics

BE IT ENACTED by the Queen's Most Excellent Majesty, by and with Ithe advice and consent of the Legislative Assembly of Queensland in 2

Parliament assembled, and by the authority of the same, as follows. 3

.PART 1-PRELIMINARY 4

Short title 5

1. This Act may be cited as the Public Sector Ethics Act 1992. 6

Crown bound 7

2. This Act binds- 8

(a) the Crown in right of Queensland; and 9

(b) the Crown in all its other capacities so far as the legislative power 10

of the Parliament permits. 11

Definitions 12

3. In this Act- 13

"Advisory Panel" means the Advisory Panel on Public Sector Ethics; 14

"appointed public official" means a public official other than an elected 15

public official; 16

"approved adjunct to a code of conduct" means an adjunct to a code of 17

conduct approved by the Office under section 26; 18

"approved code of conduct" means a code of conduct approved by the 19Governor in Council under section 21; 20

"chief executive", in relation to a public sector unit, means- 21

(a) if the unit is a department-the chief executive (however 22described) under whose control the department is placed; or 23

(b) if the unit is the Legislative Assembly-the Speaker; or 24

(c) if the unit is a local authority-the chairperson of the authority; or 25

(d) in the case of another unit-the person who is the most senior 26

E6

3Public Sector Ethics

person within the management of the unit; I

"code of conduct for appointed officials" means a code of conduct 2relating to appointed public officials prepared under section 17(2); 3

"code of conduct for elected officials" means a code of conduct relating to 4elected public officials prepared under section 17(1); 5

"Director" means the Director of the Office; 6

"elected public official" means a public official who is- 7

(a) a member of the Legislative Assembly; or 8

(b) a member of a local authority; 9

"member" means a member of the Advisory Panel; 10

"Office" means the Office of Public Sector Ethics; 11

"officer", in relation to a public sector unit, includes- 12

(a) a constituent member of the public sector unit, whether holding 13office by election or selection; and 14

(b) an employee of the public sector unit; 15

"primary obligation" means- 16

(a) in relation to an elected public official-an obligation set out in 17Division 2 of Part 3; or 18

(b) in relation to an appointed public official-an obligation set out in 19Division 3 of Part 3; 20

"public official" means- 21

(a) a person who is an officer of a public sector unit; or 22

(b) if a public sector unit is a corporation-a person (if any) who 23constitutes the public sector unit; 24

"public sector unit" means- 25

(a) the Legislative Assembly and the Parliamentary Service; or 26

(b) the Executive Council; or 27

(c) the courts of the State of whatever jurisdiction and the registries 28and administrative offices of the courts; or 29

(d) a department of the government of the State; or 30

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4Public Sector Ethics

(e) a Commission established under an Act; or 1

(f) the Queensland Police Service; or 2

(g) Queensland Railways; or 3

(h) a local authority; or 4

(i) a corporation sole, another corporation or an instrumentality- 5

(i) representing the Crown; or 6

(ii) constituted under an Act or other law; or 7

(iii) constituted for a purpose in relation to the government of the 8State; or 9

(j) another body prescribed by regulation; 10

"Queensland Police Service" means the Queensland Police Service 11maintained under the Police Service Administration Act 1990; 12

"Queensland Railways" means the corporation continued in existence 13under that name under the Transport Infrastructure (Railways) Act 141991, and includes its organisation; 15

"Speaker" means the Speaker of the Legislative Assembly. 16

PART 2-ETHICAL PRINCIPLES 17

Declaration of ethical principles 18

4.(1) The ethical principles mentioned in subsection (2) are declared to be 19fundamental to good government and good public administration. 20

(2) The ethical principles are- 21

(a) respect for the law and the system of government; and 22

(b) respect for persons; and 23

(c) integrity; and 24

(d) diligence; and 25

(e) economy and efficiency. 26

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5Public Sector Ethics

PART 3-PRIMARY OBLIGATIONS OF PUBLIC 1OFFICIALS 2

Division 1-Application of primary obligations 3

Application 4

5. In recognition of the ethical principles and to further enhance the 5principles- 6

(a) the obligations set out in Division 2 apply to elected public 7officials; and 8

(b) the obligations set out in Division 3 apply to appointed public 9officials. 10

Compliance 11

6.(1) An elected public official must comply with the primary obligations 12applicable to the official. 13

(2) An appointed public official must comply with the primary 14obligations applicable to the official. 15

Division 2-Primary obligations of elected public officials 16

Respect for the law and the system of government 17

7.(1) An elected public official must uphold the laws of the State and the 18Commonwealth unless there is just cause for not doing so. 19

(2) An elected public official must- 20

(a) act with respect for the institutions of Parliament and local 21government; and 22

(b) ensure that the official's conduct, whether in a personal or official 23capacity, does not- 24

(i) bring Parliament or local government into disrepute; or 25

(ii) damage public confidence in the system of government. 26

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6Public Sector Ethics

Respect for persons 1

8.(1) An elected public official must treat members of the public and 2

other public officials- 3

(a) honestly and fairly; and 4

(b) with proper regard for their rights and obligations. 5

(2) An elected public official must act responsively in the performance of 6

the official's functions. 7

Integrity 8

9.(1) In recognition that public office involves a public trust, an elected 9

public official must seek to advance the common good of the community 10

that the official serves. 11

(2) Having regard to the obligation under subsection (1), an elected 12

public official- 13

(a) must not improperly use, or allow to be used, any of the official's 14

powers or the official's position; and 15

(b) must ensure that any conflict that may arise between the official's 16

personal interests and official functions is resolved in favour of 17

the public interest. 18

Diligence 19

10. In the performance of an elected public official's functions, the 20

official must- 21

(a) exercise proper diligence, care and attention; and 22

(b) seek to achieve the highest standards practicable. 23

Economy and efficiency 24

11. An elected public official must- 25

(a) avoid waste, abuse and extravagance in the provision or use of 26

public resources; and 27

(b) expose fraud and corruption of which the official is aware. 28

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7Public Sector Ethics

Division 3-Primary obligations of appointed public officials I

Respect for the law and the system of government 2

12. An appointed public official must- 3

(a) uphold the laws of the State and the Commonwealth; and 4

(b) implement the decisions and policies of the Government; 5

unless there is just cause for not doing so. 6

Respect for persons 7

13.(1) An appointed public official must treat members of the public and 8other public officials- 9

(a) honestly and fairly; and 10

(b) with proper regard for their rights and obligations. 11

(2) An appointed public official must act responsively in the performance 12of the official's functions. 13

Integrity 14

14.(1) In recognition that public office involves a public trust, an 15appointed public official must seek- 16

(a) to maintain and enhance public confidence in the integrity of 17government administration; and 18

(b) to advance the common good of the community that the official 19serves. 20

(2) Having regard to the obligation under subsection (1), an appointed 21public official- 22

(a) must not use, or allow to be used, any of the official's powers or 23the official's position improperly; and 24

(b) must ensure that any conflict that may arise between the official's 25personal interests and official functions is resolved in favour of 26the public interest. 27

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8Public Sector Ethics

Diligence 1

15. In the performance of an appointed public official's functions, the 2official must- 3

(a) exercise proper diligence, care and attention; and 4

(b) seek to achieve high standards of public administration. 5

Economy and efficiency 6

16. An appointed public official must- 7

(a) avoid waste, abuse and extravagance in the provision or use of 8public resources; and 9

(b) expose fraud and corruption of which the official is aware. 10

PART 4-CODES OF CONDUCT FOR PUBLICOFFICIALS

1112

Division 1-Codes of conduct 13

Preparation of codes 14

17.(1) The Office must, at the request of the Speaker, prepare a code of 15conduct relating to elected public officials. 16

(2) The Office may, on its own initiative, prepare a code of conduct 17relating to appointed public officials. 18

Application of codes 19

18.(1) A code of conduct for elected officials is, subject to subsection (3), 20to apply to all elected public officials. 21

(2) A code of conduct for appointed officials is, subject to subsection (3), 22to apply to all appointed public officials. 23

(3) A code of conduct may provide for an exception, exemption or 24

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9Public Sector Ethics

variation in the application of the code to specified public officials or a 1specified class of public officials. 2

Purpose of codes 3

19. The purpose of a code of conduct is to assist persons to understand 4the nature and scope of the primary obligations in their application to the 5public officials to whom the code applies. 6

Contents of codes 7

20.(1) A code of conduct may (subject, in the case of a code of conduct 8for elected officials, to any directions of the Speaker) contain such 9information as the Office considers appropriate in order to achieve the 10code's purpose. 11

(2) Without limiting subsection (1), a code may contain- 12

(a) information to explain the purpose of the primary obligations 13generally or a particular primary obligation; and 14

(b) information to explain the object intended to be achieved by the 15application of the primary obligations generally or a particular 16primary obligation; and 17

(c) guidelines relating to the application of a primary obligation; and 18

(d) examples of the operation of a primary obligation; and 19

(e) explanatory notes relating to a primary obligation; and 20

(f) material expressed in the form of obligations to be complied with 21by public officials in relation to a primary obligation. 22

(3) If material that is expressed in the form of an obligation is included in 23a code of conduct, the purpose of the material is merely to indicate that 24conduct consistent with the obligation is a way in which compliance with 25the relevant primary obligation may be achieved. 26

(4) Material included in a code of conduct in the form of obligations is 27not to be treated as an exhaustive statement of conduct that will achieve 28compliance with the relevant primary obligation. 29

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10Public Sector Ethics

Approval of codes 1

21.(1) The Governor in Council may, by regulation, approve a code of 2conduct prepared by the Office. 3

(2) The code of conduct must be set out in the regulation. 4

Division 2-Adjuncts to codes of conduct 5

Preparation of adjuncts to codes 6

22.(1) At any time after a code of conduct for elected officials has been 7approved, the chief executive of a public sector unit in which there are 8public officials to whom the code applies may prepare an adjunct to the 9code relating to public officials of the unit. 10

(2) As soon as practicable after a code of conduct for appointed officials 11has been approved, the chief executive of a public sector unit in which there 12are public officials to whom the code applies must prepare an adjunct or 13adjuncts to the code relating to public officials of the unit. 14

Application of adjuncts to codes 15

23.(1) An adjunct to a code of conduct for elected officials is to apply to 16all public officials of the relevant public sector unit. 17

(2) An adjunct to a code of conduct for appointed officials is to apply- 18

(a) if paragraph (b) does not apply-to all public officials of the 19relevant public sector unit; or 20

(b) if more than 1 adjunct is prepared by the chief executive-to 21public officials of a specified part of the relevant public sector 22unit. 23

(3) If more than 1 adjunct to a code of conduct for appointed officials is 24prepared by the chief executive of a public sector unit, the chief executive 25must ensure that there is no public official of the unit to whom an adjunct 26does not apply. 27

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11Public Sector Ethics

Purpose of adjuncts to codes 1

24. The purpose of an adjunct to a code of conduct is to assist persons to 2understand the nature and scope of the primary obligations in their 3application to the public officials to whom the adjunct applies. 4

Contents of adjuncts to codes 5

25. An adjunct to a code of conduct may contain such information as the 6chief executive concerned considers appropriate in order to achieve its 7purpose. 8

Approval of adjuncts to codes 9

26.(1) The Office may, at the request of the chief executive of a public 10sector unit, approve, in relation to an approved code of conduct, an adjunct 11to the code prepared by the chief executive. 12

(2) The approval must be in writing. 13

PART 5-RESPONSIBILITIES OF CHIEF 14EXECUTIVES 15

Definition 16

27. In this Part- 17

"ethics code" means- 18

(a) an approved code of conduct; or 19

(b) an approved adjunct to a code of conduct. 20

Distribution of ethics codes 21

28. The chief executive of a public sector unit must seek to ensure that 22each public official of the unit is given a copy of any ethics code applicable 23to the official. 24

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12Public Sector Ethics

Inspection of ethics codes 1

29.(1) The chief executive of a public sector unit must keep available for 2inspection by any person ( including a member of the public) an appropriate 3number of copies of each ethics code applicable to public officials of the 4

unit. 5

(2) The copies must be made available during office hours on business 6days at- 7

(a) the unit's head office; and 8

(b) each regional office of the unit; and 9

(c) such other places as the chief executive considers appropriate. 10

Training of staff 11

30.(1) The chief executive of a public sector unit must ensure that staff 12are provided with proper training in relation to matters concerning public 13

sector ethics. 14

(2) In particular, the training must relate to- 15

(a) the operation of this Act; and 16

(b) the application of primary obligations to the staff; and 17

(c) the contents of relevant ethics codes. 18

Procedures and practices of public sector units 19

31. The chief executive of a public sector unit must ensure that the 20administrative procedures and management practices of the unit have proper 21regard to- 22

(a) this Act and, in particular, the primary obligations applicable to 23staff of the unit; and 24

(b) relevant ethics codes. 25

Implementation statements 26

32. The chief executive of a public sector unit must ensure that there is 27included in the annual report (if any) of the unit an implementation 28

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13Public Sector Ethics

statement setting out details of- 1

(a) the action taken during the reporting period to comply with 2

sections 30 and 31; and 3

(b) any other action taken by or in relation to the unit during the 4

period in the administration of this Act. 5

PART 6-INVESTIGATIONS 6

Definition 7

33. In this Part- 8

"investigator", in relation to an investigation conducted under this Part, 9

means- 10

(a) the Director; or 11

(b) the chief executive or member by whom the investigation is 12

conducted. 13

Investigations by chief executives 14

34.(1) If the Director believes on reasonable grounds that an appointed 15public official has contravened a primary obligation applicable to the 16

official, the Director may request the chief executive of the relevant public 17

sector unit- 18

(a) to conduct an investigation into the matter; and 19

(b) to give to the Office a written report of the results of the 20

investigation. 21

(2) The chief executive must comply with the request. 22

Investigations by Director 23

35.(1) If the Director believes on reasonable grounds that an appointed 24public official has contravened a primary obligation applicable to the 25official, the Director may conduct an investigation into the matter if a 26

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14Public Sector Ethics

prescribed circumstance exists. 1

(2) A prescribed circumstance exists- 2

(a) if- 3

(i) the Director has made a request of a chief executive under 4

section 34(1); and 5

(ii) the chief executive has failed to comply with the request; and 6

(iii) the Director considers the matter to be sufficiently significant 7

to warrant investigation; or 8

(b) if the relevant public sector unit no longer exists; or 9

(c) if the chief executive is involved, or is likely to become involved, 10

in the matter. 11

Investigations by members 12

36.(1) A matter is a matter to which this section applies if- 13

(a) the Minister believes on reasonable grounds that an appointed 14public official has contravened a primary obligation applicable to 15the official; and 16

(b) the Minister believes that, because of the sensitivity or complexity 17of the matter, the matter should not be investigated by the chief 18executive of the relevant public sector unit or the Director. 19

(2) The Minister may give a written direction to a member- 20

(a) to conduct an investigation into a matter to which this section 21applies; and 22

(b) to give to the Minister a written report of the results of the 23

investigation. 24

(3) The member must comply with the direction. 25

Procedure for investigations 26

37.(1) The procedure to be followed by the investigator in conducting the 27investigation is, subject to this Act, within the discretion of the investigator. 28

(2) The procedure must be fair. 29

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15Public Sector Ethics

Powers of investigators 1

38.(1) In conducting the investigation, the investigator may require the 2public official concerned- 3

(a) to answer any question; or 4

(b) to give the investigator any information; or 5

(c) to produce to the investigator any document or other thing; or 6

(d) to give the investigator a copy of any document. 7

(2) The requirement must- 8

(a) be in writing; and 9

(b) specify or describe the information, document or thing required; 10and 11

(c) specify a reasonable time for compliance. 12

(3) Any question of the investigator, and the information, document or 13thing specified or described in the requirement, must relate to the matter 14being investigated. 15

(4) The public official must not, without reasonable excuse, fail to 16comply with the requirement. 17

(5) It is a reasonable excuse for the public official to fail to comply with 18the requirement if compliance might tend to incriminate the official. 19

Submissions by public officials concerned 20

39.(1) In conducting the investigation, the investigator must allow the 21public official concerned to make such submissions relating to the matter as 22the official wishes. 23

(2) A submission may be made orally or in writing. 24

Power to obtain information from other sources 25

40. In conducting the investigation, the investigator may- 26

(a) obtain information from such persons other than the public 27official concerned; and 28

(b) make such inquiries; 29

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16Public Sector Ethics

as the investigator considers appropriate. I

PART 7-ENFORCEMENT 2

Contraventions by parliamentary members 3

41. If, in relation to elected public officials who are members of the 4Legislative Assembly, the Legislative Assembly determines the 5consequences of failing to comply with the primary obligations applicable 6to the officials, any failure to comply by such an official is to be dealt with 7in accordance with the determination. 8

Contraventions by local authority members 9

42.(1) The Minister for the time being administering the Local 10Government Act 1936 may, in relation to elected public officials who are 11members of local authorities, determine the consequences of failing to 12comply with the primary obligations applicable to the officials. 13

(2) If the Minister concerned makes the determination, any failure to 14comply by a public official to whom the determination relates is to be dealt 15with in accordance with the determination. 16

(3) Section 28A of the Acts Interpretation Act 1954 applies to a 17determination under this section as if it were a regulation. 18

Contraventions by appointed public officials 19

43. If an appointed public official of a public sector unit- 20

(a) contravenes section 6(2) by failing to comply with a primary 21obligation applicable to the official; or 22

(b) contravenes section 38(4) by failing to comply with a 23requirement given by an investigator in the course of conducting 24an investigation; 25

the contravention is taken, for the purposes of another law or instrument 26relating to the matters in relation to which disciplinary action may be taken 27

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17Public Sector Ethics

against public officials of the unit, to be such a matter. I

Submissions by Office arising out of disciplinary actions 2

44. The Office may make submissions, orally or in writing, to any 3person or body hearing an appeal against a decision, or otherwise reviewing 4

a decision, involving the taking of disciplinary action against a public 5official for a contravention of section 6(2) or 38(4). 6

PART 8-ADMINISTRATION

Division 1-Office of Public Sector Ethics

Establishment of Office

45. An Office of Public Sector Ethics is established.

7

8

9

10

Functions of Office 11

46. The Office has the following functions- 12

(a) subject to the Minister, to administer this Act; 13

(b) to make and keep under review policies concerning the 14administration of this Act; 15

(c) to keep under review the operation of this Act; 16

(d) to keep under review the development of matters concerning 17public sector ethics; 18

(e) to keep under review the contents of- 19

(i) approved codes of conduct; and 20

(ii) approved adjuncts to codes of conduct; 21

(f) to a list in the training of persons in relation to matters 22conc ruing public sector ethics; 23

(g) to consult and cooperate with such persons, organisations and 24

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18Public Sector Ethics

bodies as the Office considers appropriate in relation to matters Iconcerning public sector ethics; 2

(h) to give advice on matters concerning- 3

(i) the operation of this Act and, in particular, the application of 4

the primary obligations; or 5

(ii) the contents of an approved code of conduct; or 6

(iii) the contents of an approved adjunct to a code of conduct; 7

(i) any other functions conferred on the Office under this or another 8

Act; 9

(j) to perform functions incidental to a function under another 10

paragraph of this section. 11

Powers of Office 12

47.(1) The Office has the powers given by this Act. 13

(2) The Office also has power to do all things that are necessary or 14convenient to be done for or in connection with the performance of its 15

functions. 16

17Composition of Office 18

48.(1) The Office consists of the Director and other staff of the Office. 19

(2) The staff are to be appointed or engaged under the Public Service 20

Management and Employment Act 1988. 21

Reports 22

49.(1) As soon as practicable after, but not later than 4 months after, the 23end of each financial year, the Office must prepare and give to the Minister 24a report on the operations of the Office during that year. 25

(2) The report must include any separate report of the Advisory Panel 26received by the Office under section 67 for the year. 27

(3) The Office must also give to the Minister such reports relating to the 28performance of its functions as the Minister requests. 29

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19Public Sector Ethics

(4) The Office may give to the Minister such other reports relating to the Iperformance of its functions as the Office considers appropriate. 2

(5) The Minister must cause a copy of each report given to the Minister 3under this section to be laid before the Legislative Assembly as soon as 4

practicable, but not later than 7 sitting days, after the Minister receives it. 5

Division 2--Director of the Office 6

Director 7

50.(1) There is to be a Director of the Office. 8

(2) The Director is to be appointed under the Public Service Management 9and Employment Act 1988. 10

(3) The Director is to be responsible to the Minister. 11

(4) The office of Director may be held in conjunction with any other 12office in the public service. 13

Powers of Director 14

51.(1) The Director has the powers given by this Act. 15

(2) The Director also has power to do all things that are necessary or 16convenient to be done for or in connection with the performance of the 17functions of the Office. 18

Delegation of powers by Director 19

52. The Director may delegate the Director's powers to a member of the 20staff of the Office. 21

Acting Director 22

53. The chief executive of the department may appoint a person to act as 23the Director- 24

(a) during a vacancy in the office of Director; or 25

(b) during any period, or during all periods, when the Director is 26

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20Public Sector Ethics

absent from duty or from Australia or is, for another reason, Iunable to perform the functions of the office. 2

Division 3 -Advisory Panel on Public Sector Ethics 3

Establishment of Advisory Panel 4

54. An Advisory Panel on Public Sector Ethics is established. 5

Functions of Advisory Panel 6

55. The Advisory Panel has the following functions- 7

(a) at the request of the Minister, to give information or advice to the 8Minister on any of the following matters specified by the 9Minister- 10

(i) public sector ethics; 11

(ii) the application of the primary obligations; 12

(iii) the contents of an approved code of conduct; 13

(iv) the contents of an approved adjunct to a code of conduct; 14

(b) on its own initiative, to give information or advice to the Minister 15on a matter mentioned in paragraph (a); 16

(c) on its own initiative, or at the request of the Office, to give advice 17to the Office on a matter mentioned in paragraph (a); 18

(d) to conduct research in relation to a matter mentioned in paragraph 19(a); 20

(e) any other functions conferred on the Advisory Panel under this or 21another Act; 22

(f) to perform functions incidental to a function under another 23paragraph of this section. 24

Powers of Advisory Panel 25

56. The Advisory Panel has power to do all things that are necessary or 26convenient to be done for or in connection with the performance of its 27

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21Public Sector Ethics

functions. 1

Composition of Advisory Panel 2

57.(1) The Advisory Panel is to consist of not fewer than 3, nor more 3than 7, members. 4

(2) One member is to be appointed by the Governor in Council as the 5chairperson of the Advisory Panel. 6

Appointment of members 7

58.(1) The members are to be appointed by the Governor in Council. 8

(2) A person must not be appointed as a member unless the person- 9

(a) has extensive knowledge of, or extensive experience or a 10demonstrated interest in, matters concerning public sector ethics; 11and 12

(b) has standing in the community because of the knowledge, 13experience or interest. 14

(3) Subject to sections 61 and 63, a member holds office for such term 15(not longer than 7 years) as is specified in the member's instrument of 16appointment. 17

(4) Members are to be appointed on a part-time basis. 18

(5) The appointment of a person as a member is not invalid merely 19because of a defect or irregularity in relation to the appointment. 20

Fees and allowances 21

59. A member is to be paid such fees and allowances as are determined 22by the Governor in Council. 23

Leave of absence 24

60. The Minister may grant leave of absence to a member on such terms 25as the Minister considers appropriate. 26

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22Public Sector Ethics

Resignation 1

61. A member may resign office by signed notice given to the Governor. 2

Terms of appointment 3

62. A member holds office on such terms, not provided for by this Act, 4

as are determined by the Governor in Council. 5

Termination of appointment 6

63.(1) The Governor in Council may terminate the appointment of a 7

member if the member- 8

(a) becomes physically or mentally incapable of satisfactorily 9

performing the duties of office; or 10

(b) is guilty of misconduct of a kind that could warrant dismissal 11from the public service if the member were an officer of the 12

public service. 13

(2) The Governor in Council must terminate the appointment of a 14

member if the member- 15

(a) is convicted of an indictable offence (whether in Queensland or 16

elsewhere); or 17

(b) becomes bankrupt, applies to take the benefit of any law for the 18relief of bankrupt or insolvent debtors, compounds with creditors 19or makes an assignment of remuneration for their benefit; or 20

(c) is absent, except with leave of absence, from 3 consecutive 21meetings of the Advisory Panel. 22

Acting member 23

64.(1) The Governor in Council may appoint a person to act as 24member- 25

(a) during a vacancy in the office of a member; or 26

(b) during any period, or during all periods, when a member is 27absent from duty or from Australia or is, for another reason, 28unable to perform the functions of the office. 29

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23Public Sector Ethics

(2) A person must not be appointed to act as a member unless the person 1is eligible for appointment as a member. 2

Times and places of meetings 3

65.(1) Subject to this section, meetings of the Advisory Panel are to be 4

held at such times and places as the Advisory Panel determines. 5

(2) The Advisory Panel must meet at least 3 times in each calender year. 6

(3) The chairperson- 7

(a) may at any time convene a meeting; and 8

(b) must convene a meeting when requested in writing by the 9majority of the members. 10

Proceedings at meetings 11

66.(1) At a meeting of the Advisory Panel- 12

(a) the chairperson is to preside; or 13

(b) if the chairperson is not present-a member chosen by the 14members present is to preside. 15

(2) At a meeting of the Advisory Panel- 16

(a) a majority of the members constitutes a quorum; and 17

(b) a question is to be decided by a majority of votes of the members 18present and voting; and 19

(c) each member present has 1 vote on any question arising for 20decision and, if the votes are equal, the member presiding also 21has a casting vote. 22

(3) The Advisory Panel may invite a person to attend a meeting for the 23purpose of advising or informing it on any matter. 24

(4) The Advisory Panel- 25

(a) may regulate proceedings at its meetings as it considers 26appropriate; and 27

(b) must keep minutes of its proceedings. 28

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Reports 1

67. The Advisory Panel must, as soon as practicable after the end of each 2

financial year, prepare and send to the Office a report on the operations of 3

the Advisory Panel during that year. 4

PART 9-MISCELLANEOUS 5

Immunity 6

68.(1) A person concerned with the administration of this Act incurs no 7

civil liability for an honest act or omission in the exercise or purported 8

exercise of powers under this Act. 9

(2) A liability that would, but for this section, attach to a person 10

concerned with the administration of this Act attaches instead to the State. 11

(3) In this section, a reference to a person concerned with the 12

administration of this Act is a reference to a person who is, or has been- 13

(a) the Director; or 14

(b) a member of the staff of the Office; or 15

(c) a member of the Advisory Panel. 16

Regulations 17

69. The Governor in Council may make regulations for the purposes of 18

this Act. 19

PART 10-TRANSITIONAL 20

(to be drafted) 21

Fl

APPENDIX F

DRAFT CODE OF CONDUCT FOR APPOINTED PUBLIC OFFICIALS

CODE OF CONDUCT FOR APPOINTED PUBLIC OFFICIALS

1992

Table of Contents

1 Standards of Conduct for Appointed Public Officials F2

2 Authority and Purposes of the Code of Conduct. F2

3 Organisations and Officials Covered by this Code F4

4 The Obligations of an Appointed Public Official F5

5 Personal and Professional Ethics F6

6 General Obligation 1: Respect for the Law and the Systemof Government F8

7 General Obligation 2: Respect for persons F10

8 General Obligation 3: Integrity F11

9 General Obligation 4: Diligence F22

10 General Obligation 5: Economy and Efficiency F10

11 Breaches of the Public Sector Ethics Act 1992 or the Code ofConduct for Appointed Public Officials F26

Appendix 1: Relevant Legislation F27

Appendix 2: Draft Proforma for the Registration ofPecuniary Interests F33

F2

1. STANDARDS OF CONDUCT FOR APPOINTED PUBLICOFFICIALS

1.1 Background

The standards of conduct which may be expected of public officials at alllevels are a matter for legitimate and continuing concern by the public.This Code of Conduct provides guidelines on what those standards are, ingeneral terms, and how appointed public officials can put them intopractice in their work.

Public officials at all levels take action and make decisions which can havesignificant effects on the lives of ordinary citizens, who are expected totake on trust that the powers exercised by those officials were usedproperly, and were used in their interests.

Public officials also control, in various ways, the use of financial and othervaluable resources provided by the taxpayer. The use, and misuse, ofthose resources raises important questions of ethics which the Codeexamines in order to minimise waste, fraud and corruption.

Because of their privileged position, public officials have the potential todamage public confidence in the integrity of the government of the day andthe system of public administration. This is a particular cause for concernwhere public officials (especially those in positions of authority orsensitivity) become involved in the misuse of official information, orinappropriate party-political activity, or questionable personal conduct, orconflicts between their personal interests and their duty as an official, orin being seen as criticising the policy of the government.

How public officials use their official positions, their powers and theresources available to them are the central concerns of this Code ofConduct.

1.2 The Public Interest

The idea of "the public interest" lies at the centre of the concept ofresponsible public service, which has its roots in the conventions of the"Westminster" tradition of democratic government and publicadministration.

The Code of Conduct explains how that idea is expected to guide theconduct of officials. The Code also explains the related idea ofresponsibility, or the duty of trusteeship owed by all public officials for theway they use the powers of their official positions, and the resourcesprovided to them.

2. AUTHORITY AND PURPOSES OF THIS CODE OF CONDUCT

2.1 Authority

This Code of Conduct is authorised under the Public Sector Ethics Act 1992(the Act). It is binding on those non-elected public officials defined in Part1 of the Act that is, all appointed and employed officers in all units of thepublic sector and Local Authorities in Queensland.

The obligations of appointed public sector officials in relation to ethicalconduct generally are set out in the Act (see Part 3).

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Breaches of the Act (ie. "failure to act in accordance with the obligations ofan official"), and breaches of the Code of Conduct or an agency's adjunctrules may be dealt with as disciplinary matters by the relevant ChiefExecutive under the Public Sector Ethics Act 1992, or other relevant powerwhere appropriate.

2.2 Purposes

This Code of Conduct is not an additional set of instructions on how staffare to do their jobs.

The Code is part of a four-part strategy adopted by the Government as away of assisting appointed public officials (i) to identify and apply theethical standards which are expected in the Queensland public sector, and(ii) to recognise and deal with ethics issues arising in the course of theiremployment in accordance with those standards.

The four parts of the strategy are:

(a) the Public Sector Ethics Act 1992, which identifiesfundamental ethical principles for the whole of the publicsector, and identifies specific obligations which govern theconduct of officials at all levels;

(b) this Code of Conduct and other Codes for other categories ofpublic official;

(c) agency-specific rules developed as formal adjuncts to the Codeof Conduct by individual departments and public sectoragencies, identifying in detail how particular matters ofconcern to that organisation are to be dealt with; and

(d) the Office of Public Sector Ethics, the functions of whichinclude -

(i) ensuring as far as possible a reasonable and consistentapproach to ethics matters, especially disciplinary action,for the whole public sector;

(ii) giving independent advice on specific matters; and(iii) contributing to appropriate new training and

development activities for staff at all levels and in allpublic sector agencies.

It is a responsibility of all officials to become familiar with the provisionsof the Public Sector Ethics Act 1992, this Code of Conduct, and the specificrules issued by their employing organisation as an adjunct to the Code.

It is a responsibility of Chief Executives of public sector agencies (asdefined in the Public Sector Ethics Act 1992) to ensure that their staffreceive adequate and appropriate training in relation to the provisions ofthe Act and the Code of Conduct, and reasonable access to a copy of theCode and relevant adjuncts to the Code.

For a comprehensive understanding of the standards of official conductwhich are required, it is necessary that managers and individual officialsread the Public Sector Ethics Act 1992 and this Code as a whole, ratherthan rely on individual provisions in isolation.

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The major purposes of this Code of Conduct are to provide consistent,authoritative and relevant guidance, expressed in terms of generalprinciples, on the standards which govern official conduct in situationslikely to be faced by an official.

Where the application of principles has proved difficult in the past, orwhere particular forms of conduct are so unacceptable as to need specificdiscussion, the Code indicates what is regarded as legitimate (andillegitimate) action by a public official.

All public sector units are required by the Act to develop and, subject tothe endorsement of the Office of Public Sector Ethics, issue statements oftheir particular standards or requirements in relation to official conductmatters covered by this Code as adjuncts to this Code in relation to theirstaff.

This Code of Conduct declares and explains for all categories of appointedpublic official -

(a) the principles underlying the requirements of the Code;

(b) a rational and defensible means of deciding betweenconflicting or competing values in relation to the conduct ofofficials, in order to resolve ethical dilemmas in favour of "thepublic interest"; and

(c) what conduct is acceptable, and unacceptable, in situations ofethical difficulty most commonly experienced by publicofficials.

3. ORGANISATIONS AND OFFICIALS COVERED BY THIS CODE

3.1 Coverage

The Code -

(a) replaces the Code of Conduct for Officers of the QueenslandPublic Service ( 1988); and

(b) over-rides any other Code of Conduct or formal rules issued byan organisation for the purpose of regulating the conduct ofemployees in a public sector unit ( as defined in Part 10 of thePublic Sector Ethics Act 1992), to the extent that such otherCode or rules are inconsistent with this Code.

The Public Sector Ethics Act 1992 provides for officials in the followingcategories of organisations to be subject to this Code -

(a) the Parliamentary Service;

(b) the courts of the State of whatever jurisdiction and theregistries and administrative offices of the courts;

(c) department of the government of the State;

(d) Commissions established under an Act;

(e) the Queensland Police Service;

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(f) Queensland Railways;

(g) a Local Authority;

(h) a corporation sole, a body corporate or an instrumentality -

(i) representing the Crown;

(ii) constituted by or under any Act or law; or

(iii) constituted for a purpose in connection with thegovernment of the State; and

(i) other bodies prescribed by regulation.

"Queensland Police Service" means the Queensland Police Servicemaintained under the Police Service Administration Act 1990.

"Queensland Railways" means the corporation continued inexistence under that name under the Transport Infrastructure(Railways) Act 1990 and its organisation.

Agencies falling outside this definition are able, under Part 1 of the Act, toopt for coverage under the Act as though they were covered by the abovedefinition, subject to the concurrence of the responsible Minister and thePremier.

3.2 Transitional Provisions

Where formal disciplinary action affecting an individual has been taken inaccordance with the Code of Conduct for Officers of the Queensland PublicService (1988) or any other Code or rules, and is not finalised, the relevantCode or the rules are preserved in relation only to the individual againstwhom action has been taken , until the action has been finalised (ie. a finaldecision has been taken where the decision is not subject to appeal, orwhere any right of appeal has been exhausted. - see Part 10 of the PublicSector Ethics Act 1992).

Where any unit of the public sector has issued a Code of Conduct or rulesof any form, that Code or rules should be reviewed for consistency with thePublic Sector Ethics Act 1992 and Regulations, and this Code of Conduct.After revision, the agency's code or rules may be promulgated as a formaladjunct to this Code of Conduct, subject to the endorsement of the Office ofPublic Sector Ethics.

4. THE OBLIGATIONS OF AN APPOINTED PUBLIC OFFICIAL

The fundamental principles and their associated general obligations areset out in the Public Sector Ethics Act 1992 and the regulations to thatAct, and are as follows -

(a) Respect for the Law and the System of Government - publicofficials shall uphold the laws of Queensland and Australia,and shall implement the decisions and policies of theGovernment, and shall not, without just cause, be a party totheir breach, evasion, or subversion;

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(b) Respect for Persons - public officials shall treat members ofthe public and other officials honestly and fairly, and withproper regard for their rights, entitlements, duties andobligations, and shall at all times act responsively in theperformance of official duties;

(c) Integrity - public officials shall at all times seek to maintainor enhance public confidence in the integrity of public sectoradministration, and to advance the common good of thecommunity which they serve, in recognition that public officeinvolves a public trust. In particular, officials shall ensurethat their official powers and position are not used improperlyfor personal advantage, and that any conflict betweenpersonal interests and official duty which may arise isresolved in favour of the public interest;

(d) Diligence - public officials shall exercise due diligence, careand attention, and at all times seek to achieve high standardsof public administration in relation to the duties andresponsibilities of their official position; and

(e) Economy and Efficiency - public officials shall avoid waste,abuse and extravagance in the provision or use of publicresources, and shall expose fraud and corruption of which theofficial is aware.

5. PERSONAL AND PROFESSIONAL ETHICS

This Code of Conduct recognises that, depending on the circumstances,three distinct standards of conduct may be relevant to public officials.Conflicts between the demands of these different standards may arise, andneed to be resolved. The three standards are -

(a) "functional obligations" (ie. arising from the functional andstatutory roles of the official, and relevantemployment-related obligations);

(b) "professional ethics" standards; and

(c) "personal ethics" standards.

5.1 Functional Obligations

Officials are expected to act lawfully in implementing an electedGovernment's policies and programs, to serve the public interest to thebest of their ability, and not to act in ways which might undermine publicconfidence in the Government or the administration. These expectationsare characteristic features of the role of the public official in our society,and arise as structural consequences of the way this society's chosensystem of government operates. Codes of Conduct for public officialsusually deal with such obligations in some detail, as they are central to anunderstanding of the role of the public official.

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In addition, the law in relation to the duty of service owed by an employeeto an employer (eg. the responsibility to respect the employer's legitimateinterests, the requirement to obey lawful directions, and the expectationthat employees will give "a full day's work for a full day's pay") gives riseto specific legal obligations. Codes of Conduct usually set down theemployer's expectations of appropriate standards of conduct relevant to thefunctions performed by employees.

In summary, the functional obligations of appointed officials reflect theircapacity as employees and are predominantly structural and legal ratherthan ethical in character. Where a dispute arises about the priority to begiven to the professional or personal ethical standards and theemployment obligations of an official., the functional and employmentobligations of a public official should normally take priority. Where thisapproach would result in substantial violation of professional or personalethics standards (see 5 .2 and 5.3 below), a compromise solution willusually be appropriate.

5.2 Professional Ethics Standards

Professional obligations, by contrast, arise from the fact that publicofficials exercise discretionary power, without being accountable orresponsible to an electorate. General professional expertise, judgementand responsibility are thus central to the ethical character of public servicedecision-making.

Codes of Professional Ethics promulgated by the established professionsmay give rise to conflict with perceived legal duty for members of thoseprofessions employed in the public sector. Such conflicts are usually basedon differing perceptions of what is in the public interest in a particularcase - the organisation's and the profession's.

Such conflicts may be open to resolution by reference to two generalprinciples which are embodied in the structure of our system ofgovernment -

(a) the ultimate right to determine what is in the public interest,insofar as the public sector is concerned, belongs to theresponsible elected representative, ie. the Minister; and

(b) the employed professional's principal obligation is to theemployer.

It is important to recognise that, strictly speaking, the employedprofessional provides professional services or skills to clients of theemployer, on terms which the employer may determine. Where a disputearises between an employed professional's official duty and relevantprofessional ethics standards, a compromise will often need to be soughtwhich recognises the Minister's ultimate right to determine what is to bedone.

In practice, confusion and disputes may arise where employing agencies,for various reasons, leave much to the professional discretion of theindividual professional, or adopt the Professional Ethics Code of theprofessional body concerned, either positively or by default.

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Where a significant dispute arises between an employed professional andthe employing organisation on a professional ethics matter, it isappropriate that the professional body become involved as early aspossible, to ensure that the justification of the profession's ethicsstandards does not become the task of the individual professional.

5.3 Personal Ethics Standards

It is important to recognise that personal ethics standards may be relevantto public administration, and that officials should be encouraged to applytheir personal ethics standards in appropriate circumstances.

An individual official's personal ethics standards, to the extent that theyare broadly consistent with the values of the community, can provide avalid basis for the critical evaluation, on behalf of that community, of theformal legal and professional aspects of official conduct standards.

Officials are not bound to follow official instructions which are clearlyunlawful or contrary to established community values or ethicalstandards. An official has an obligation to test what appears to be anunlawful official instruction against the higher moral, religious, or humanrights standards adopted by the community.

This principle may be difficult to put into practice in particular situations.However, in order to avoid undue disruption in the workplace, anappropriate process for dealing with disputed instructions needs to bedeveloped by agencies and understood by staff at all levels. This process isdealt with in Section 6.1 of this Code.

6. GENERAL OBLIGATION 1: RESPECT FOR THE LAW AND TIESYSTEM OF GOVERNMENT

Public officials shall uphold the laws of Queensland and Australia,and shall implement the decisions and policies of the Government,and shall not , without just cause, be a party to their breach, evasion,or subversion.

This general obligation governs the conduct of appointed officials inrelation to -

(a) the primary duty of public officials to act in accordance withthe principle of the rule of law, and to observe therequirements of relevant laws to the best of their knowledgeand ability, when acting in an official capacity;

(b) the responsibility of public officials to implement an electedGovernment's policy and decisions, in accordance withdemocratic principles; and

(c) the expectation that public officials in their capacity asprivate citizens, will observe the laws of Queensland andAustralia to the best of their knowledge and ability, and willavoid any improper involvement with others who fail toobserve either the letter or the spirit of those laws.

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The obligation is qualified by the condition - "without just cause". Thisexception is provided in order to recognise that on exceptional occasionsthe public interest would be better served by not complying with therequirements of a law or policy which can be demonstrated to be in conflictwith another law or policy, or which would result in substantial andunintended effects which would be contrary to the public interest.

In every such case, the individual official involved should discuss with asuperior any proposed action which would involve a breach of, or failure tocomply with, a law or Government policy, with a view to ensuring that theconflict of principles is adequately resolved, or that the proposed course ofaction is supported by the official's organisation.

6.1 Procedure for Dealing with Directions Subject to Challenge

Where an official has reasonable grounds to believe that an officialdirection is improper, contrary to law or Government policy, or not inaccordance with the public interest, or otherwise wrong, a number oflegitimate courses of action are available, depending on the seriousnessand urgency of the matter.

The official is obliged to carry out the direction until such clarification isreceived, unless doing so would cause serious adverse consequences forpublic health and safety, or the official's or another individual's health andsafety, the official's or another individual's rights and entitlements, orotherwise be seriously contrary to the public interest.

In cases of directions subject to challenge, the following courses of actionare required or available, according to the circumstances:

(a) The official has the right and an obligation to seek immediateclarification of the matter, first from an appropriately seniorlevel of management in the organisation unless there is nomore senior person in the organisation, or to seek suchclarification would be unreasonable in the circumstances.The Office of Public Sector Ethics can be consulted in suchcircumstances.

(b) Where the matter is not resolved within the department, theofficial also has the right to seek advice on the matter from arelevant authority outside the agency but within the publicsector, such as the Office of Public Sector Ethics, theAuditor-General, the Ombudsman, the Criminal JusticeCommission, or the Public Sector Management Commission,as appropriate.

(c) Subject to any confidentiality considerations which may beinvolved, the official may also seek the advice of the relevantprofessional association or union.

6.2 Directions in Relation to Employment Matters

The obligation also covers the common law employment contract to complywith the lawful directions of an employer or supervisor in relation toemployment matters, such as the allocation of duties.

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Employees may question specific directions in relation to specific duties, orthe way in which they are to be performed, or the timeframes to be met, ifit appears to them that there may be a more effective or appropriate way ofundertaking a task, or if a direction appears to be unreasonable.

Employees need to recognise however, that management has the primaryresponsibility for the business of the organisation, including priorities andthe preferred means of achievement.

6.3 Protection in Respect of Challenges to Directions

An official shall not be subjected to adverse personnel management actionor other adverse treatment of any kind as a consequence of raising anobjection, on grounds reasonably consistent with the general grounds forchallenge identified in sections 6.1 and 6.2 above, to an official order ordirection, policy, or administrative practice, or law, where the official hascomplied or has taken reasonable steps to comply with the relevantprocedures set down in this Code or in any adjunct to this Code establishedby the official's employing authority.

7. GENERAL OBLIGATION 2: RESPECT FOR PERSONS

Officials shall treat members of the public and other officialshonestly and fairly, and with proper regard for their rights,entitlements, duties and obligations, and shall at all times actresponsively in the performance of official duties.

The obligation covers the conduct of officials in their dealings with others,whether members of the public, other officials in the same organisation, orother officials elsewhere in the Queensland public sector.

The obligation sets out a positive requirement that officials recognise thattheir role is essentially one of service to the public, or to other officials whoserve the public, directly or indirectly. This implies that officials arerequired to be responsive to the legitimate demands of the public and otherofficials, by avoiding unnecessary delay, and by being courteous, helpfuland reasonable, especially where a member of the public is unaware oftheir rights and entitlements, is uncertain of precisely what to ask for, orignorant of official procedures.

The obligation requires officials to recognise, in essence, that public sectoragencies are a means of meeting the needs of the society which maintainsthem, rather than an end in themselves. Public officials are thereforeproperly regarded as servants of the community.

In practice, the obligation implies that officials will be expected, as far asthey are able, to -

(a) provide responsive, effective and courteous service to all thosewith whom they have official dealings;

(b) actively seek to ensure that members of the public receivetheir entitlements in a timely and efficient manner;

(c) assist all persons to establish what they are entitled to, andwhat services, benefits and other forms of official assistancemay be available to them, and under what circumstances;

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(d) act honestly and fairly at all times;

(e) respect the rights to confidentiality in relation to personalinformation of members of the public and other officials;

(f) avoid all forms of unjustified discrimination, and any conduct,action, or form of harassment, which prevents or distractsother officials from performing their proper functions; and

(g) deal with subordinates and other officials and the publicreasonably and constructively, and in accordance with anobjective and fair assessment of their merits, especially wherethey are applicants for appointment, advancement or otherbenefit, or are liable to any form of adverse action inconnection with their employment (see also Public SectorManagement and Employment Act and Regulations, and anyformal Standard issued under that Act, or other relevantemployment legislation, in relation to personnel managementmatters.)

Chief Executives may prescribe a minimum standard of dress and personalpresentation on the basis of appropriateness to the workplace, havingregard to occupational health and safety, cultural diversity, localcommunity standards, climate and the need to ensure that the Service oran agency is not brought into disrepute.

Where such standards are prescribed Chief Executives are required toobserve appropriate consultative processes in developing such standards,and ensure that any resulting standard is not arbitrary, improperlydiscriminatory, or unfair in its application to affected staff.

8. GENERAL OBLIGATION 3: GRRITY

Public officials shall at all times seek to maintain or enhance publicconfidence in the integrity of government administration, and toadvance the common good of the community which they serve, inrecognition that public office involves a public trust for which anofficial may be held accountable. In particular , officials shall ensurethat their official powers and position are not used improperly forpersonal advantage, and that any conflict between personalinterests and official duty which may arise is resolved in favour ofthe public interest.

This general obligation requires individual public officials to recognise thatintegrity in government administration encompasses a wide range ofmatters which have in common the idea that public service involves aposition of trust for which individual officials are responsible.

The obligation governs appointed public sector officials in relation to theiractions, conduct and relationships, if these are such as to give rise toreasonable doubt that an official will -

(a) serve the government of the day, through the responsibleMinister, in a politically and ideologically non-partisanmanner, to the best of their ability;

(b) use the powers, influence, resources and information availableto their official position only for proper public purposes;

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(c) maintain the proper confidentiality of official information; and

(d) refuse to use, or avoid using, the powers or influence of publicoffice, official resources, or official information improperly forpersonal or sectional advantage.

Public confidence in the integrity of the public sector is put at risk whenthe conduct of an official involves or appears to involve a conflict ofloyalties - usually stated as "a conflict between private interests andofficial duty".

In this context, the public interest is served when officials recognise thatthe trust placed in them by the community requires that they -

(a) base official decisions, advice, and administrative practices ona proper consideration of the common good of the community(subject to the requirements of the law and Governmentpolicy), and exclude improper private or sectional advantageto any person or sectional interest group (including anypolitical, religious, ideological, professional, commercial,sporting or other specific-interest or community group);

(b) ensure that the potential for conflict between personalinterests, whether pecuniary or otherwise, and therequirements of official duty, is minimised; and

(c) ensure that any conflict, including apparent conflict, betweenpublic duty and private interests which does arise is resolvedas quickly as possible, and in favour of the public interest.

8.1 Use of Official Powers and Position

The following activities or conduct by officials, acting in or connected withtheir official positions, have a strong potential to damage public confidencein the integrity of government, for a variety of reasons -

8.1.1 Acceptance of Gifts or Benefits. An official shall not solicit or acceptfor personal benefit, any form of benefit whatsoever (eg. gifts, loans,discounts, considerations, etc. - see s.422m of the Criminal Code,and the Criminal Justice Act 1989-1991 in relation to secretcommissions and official misconduct) in connection with theperformance of official duties, except as may be provided:

(a) as part of their determined entitlements in accordancewith their terms and conditions of employment; and

(b) by fellow employees on the official's resignation,retirement, transfer or similar occasions.

A Chief Executive may authorise an official or officials of an agencyto accept a gift or benefit in connection with the performance ofofficial duties, in an official capacity on behalf of the agency,provided that the gift becomes the property of the agency to beretained or disposed of in accordance with procedures authorised bythe Chief Executive.

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Chief Executives may authorise an official of the agency to purchasethe item from the agency at the price determined by an independentprofessional valuation, the cost of which is to be met by the officialconcerned.

Gifts or benefits of nominal value and expressions of normalcustomary hospitality may be dealt with as determined by a ChiefExecutive. Officials should refer to the Public Finance Standardsfor guidance on how to deal with registrable gifts.

A Chief Executive may authorise an official to accept, on behalf ofthe agency, any benefit (eg. free or subsidised transportation;hospitality and accommodation, the use of equipment or resourcesincluding human resources, or any other benefit or form ofassistance) provided that the Chief Executive is satisfied in eachinstance that -

(a) acceptance of the benefit will not bring the agency'sintegrity into question; and

(b) acceptance of the benefit is necessary, or in the agency'sinterests and in the public interest.

8.1.2 Disclosure of Official Information. Officials are not prevented fromdisclosing official information which may be released with lawfulauthority to any member of the public.

An official shall not disclose information obtained from a non-government source, without the consent of the supplier, unless -

(a) the information was supplied for a purpose which permitsits disclosure; or

(b) there is lawful authority for the disclosure.

An officer shall disclose official information except where -

(a) authority for its release has been explicitly denied orwithheld; or

(b) lawful authority for its non-disclosure is required.

Such disclosures will have lawful authority if, and to the extent that

(a) it is permitted in the ordinary discharge of official dutyand is consistent with the obligations of an official set outin this Code; or

(b) it is authorised or required by a statute or by-law.

Subject to the specific requirements of any law or this Code ofConduct, officials should be sensitive and responsive to the needs ofthe public, the news media, and elected representatives, forappropriate access to factual and technical information on thecontent and administration of government policy, in the interests ofreasoned and informed public discussion of governmentadministration. (See also "Public Comment" - section 8.1.4 of thisCode.)

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8.1.3 Use of Official Information. An official shall not make an improperuse of information obtained in office, or of any official document -

(a) in the interests of the officer or of any other person orbody; or

(b) to the detriment of any person or body, including theauthority or agency in which, or under which the office isheld.

In this context, "improper use" means any use by an official which isnot compatible with the obligations of an official as set out in thisCode, in particular any use for personal advantage of officialinformation involving a disclosure which does not have lawfulauthority, including a use which occurs after an official has ceasedto be an employee of a public sector unit (see s.2.22 and s.2.23 of theCriminal Justice Act 1989-1991 - "Official misconduct").

8.1.4 Public Comment on Government Policy or Administration. "Publiccomment" is to be understood as covering a wide range of activitieswhich involve providing information about, or evaluative commenton, government policy or administration.

Public officials are increasingly being required to provideinformation on the administration of government policy, as part oftheir official duties, in the interests of a better-informedcommunity. The circumstances will be important in decidingwhether a particular comment in a particular context is acceptableor not.

For example, writing a letter to the editor of a newspaper, writingan article for a professional journal, contributing to a paneldiscussion on radio or television, organising a public demonstration,or making a speech to an interest-group may, depending on thecircumstances, be regarded as a form of public comment for thepurposes of this Code. Comment, including criticism, made in apurely private context, such as at a dinner party at which onlyfamily and friends are present, would not fall within the scope ofthis Code.

Public officials have the same rights as any member of theircommunity to enter into discussion of community and social issuesin a private capacity.

Public officials wishing to take part in public discussion, includingcriticism, of government policy or administration in a privatecapacity should recognise that they may be seen as speaking onbehalf of the Government or their agency from a privileged position.

Depending on the circumstances, doubts about the official's loyaltyto the employer, political neutrality, or the proper use of officialinformation may also arise.

Considerable care needs to be exercised by officials to ensure thatthe capacity in which any comment is made, and its authority andpurpose, are not misunderstood.

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Contributing to public discussion of government policy oradministration, in an official capacity is acceptable in circumstanceswhere -

(a) providing information on government policy is part of theofficial's duties, or is consistent with those duties, or hasbeen appropriately authorised by the official'sorganisation; and

(b) the official respects the government's rights toconfidentiality; and

(c) the official does not misrepresent the facts concerninggovernment policy or administration, deliberately orotherwise; and

(d) the official does not misrepresent the authority of thecomment; and

(e) the comment does not disclose official informationimproperly (see para.8.1.2 in relation to disclosure ofofficial information).

Contributing to analysis and criticism of a policy of the Governmentor the Opposition in a private capacity, for example, during anelection campaign, is acceptable provided that -

(a) the comment or discussion is not likely to raisereasonable doubt about the official's ability or willingnessto implement the policies of the Government or apotential alternative government objectively; and

(b) the comment respects the Government's rights toconfidentiality; and

(c) the comment or discussion does not misrepresent thefacts concerning Government or Opposition policy oradministration, deliberately or otherwise; and

(d) the comment does not misrepresent the authority of thecomment, or the capacity in which it is made; and

(e) the comment does not amount to an abuse of theprivileged access to information which is available topublic officials in the course of their employment (seepara.8.1.2 in relation to disclosure of official information).

It is the responsibility of the official concerned to take all reasonablesteps to ensure that any comment will be understood asrepresenting the personal views of the official as a private citizen.

8.1.5 "Whistleblowing" Activity. Whistleblowing activity by publicofficials is the subject of specific legislation, the WhistleblowersProtection Act 1992. It provides for officials to bring relevantmatters of concern to the attention of "proper authorities", includingChief Executives, the Criminal Justice Commission, the Electoraland Administrative Review Commission, the Parliamentary PublicAccounts Committee, the Ombudsman or the Auditor General, orappropriate. Chief Executives are required to establish proceduresand provide advice to their staff on the operation of theWhistleblowers Protection Act 1992.

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8.1.6 Use of Political and Other Influence to Secure Advantage. A publicofficial shall not use, or seek to obtain, the improper influence of anyperson to obtain appointment, promotion, advancement, transfer orany other advantage, either personally or on behalf of another, or toaffect the proper outcome of any procedure established underlegislation for the management and administration of a unit of thepublic sector.

A public official responsible for the making of a decision underlegislation regulating any aspect of the management oradministration of a unit of the public sector, or for arecommendation for the purpose of making such a decision, shall nottake account of any attempt by any person whatsoever to influencethe making of that decision unless the involvement of that person isrequired by or consistent with the provisions of the relevantlegislation.

8.1.7 Party-political Activity and Trade Union Activity. The integrityobligation requires officials to recognise that party-political andtrade union activity, especially by officials who are senior enough tobe identified by the public in relation to their official capacity, cangive rise to perceived conflicts of interest.

An official employed in a public sector unit who seeks election to theLegislative Assembly is therefore required to take leave without pay("campaign leave") from their public sector employment from thedate of nomination as a candidate until such time as it is clear thatthey have been successful or unsuccessful at the election. Accruedleave entitlements will be available to such officials on requestduring this period.

An official employed in a Local Authority, who seeks election as aMember of an Authority, is required to take leave without pay("campaign leave") from their employment with the employingAuthority from the date of nomination as a candidate until suchtime as it is clear that they have been successful or unsuccessful atthe election. Accrued leave entitlements are available to suchofficials under section 7(1A) of the Local Government Act 1936-1991.

A Chief Executive (or equivalent officer) may at any time re-assignthe duties of an employed official, or, with the concurrence of theChair of the Public Sector Management Commission, may transferthe official to another position at the same or an equivalent level, inorder to resolve a conflict of interests arising from any partisanpolitical activity or affiliation of the official which may reasonably beexpected to bring the integrity of the agency or the system ofgovernment into question.

In general, the issues dealt with elsewhere in this part of the Code,in relation to use of official information, improper use of politicalinfluence, and public comment, have direct implications forparty-political and trade union activity by officials.

8.1.8 Personal Conduct In and Outside the Workplace. Public officialsshall ensure that their personal conduct within the workplace andelsewhere does not adversely affect -

(a) their ability to perform their official duties;

(b) the ability of other employees to perform their officialduties; and

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(c) public confidence in the official's function, ororganisation, or in the integrity of the public sector.

8.2 Conflicts of Interests

8.2.1 General Comments. "Interests" take two forms, usually referred toas "pecuniary interests " (involving financial advantage) and"non-pecuniary interests" (involving other forms of advantage, forexample, the advantaging of a particular political, religious orideological position).

For the purposes of this Code, "pecuniary interests" are subject toannual registration, (see para.8.3.2 below), and are referred to as"Registerable Interests". A conflict of interests involving aregisterable interest is also required to be the subject of anappropriate declaration as and when it occurs, to the appropriateperson or body (see para.8.3.1 below).

Registration of non-pecuniary interests is not feasible, because ofthe potentially endless range of matters which could give rise toconflicts of interests. Such interests are referred to in this Code as"Non-registerable Interests". A conflict of interests involving anon-registerable interest is required to be the subject of anappropriate declaration as and when it occurs, to the appropriateperson or body.

8.2.2 Examples. Activities and relationships requiring specific attentionby public officials under this obligation include -

(a) Acting as a Director, employee, advocate orrepresentative for, or being a member of or significantshareholder in, a company, association, or body which isinvolved with Government in any capacity. (Examples ofsuch conflicts include, for example, working as or for acontractor which provides goods or services, or is arecipient of or applicant for a Government grant orsubsidy, or which is subject to licensing or regulatorycontrol by Government.)

(Sections 89 and 90 of the Criminal Code of Queenslandspecifically prohibit public officials from holding aninterest in certain forms of Government contract orbusiness - see Appendix 1 "Relevant Legislation").

(b) Being in receipt of an offer of employment from acompany or organisation which is involved with theofficial's department or agency in any significant capacity.

(c) Being directly involved in the making of an officialdecision affecting the rights, entitlements, activities orprospects of a company, association, community group,political organisation or other body of which the official isa member or in which the official has a significantinterest.

(d) Being significantly involved in the making of an officialdecision affecting the rights, entitlements, livelihood,prospects or employment of a relative, family member, orclose personal friend.

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(e) Accepting or retaining any form of benefit, including anoffer of appointment, position, discount or otherconsideration which could appear to be likely to influencean official in the performance of his or her official duty,whether it was intended to or not.

8.3 Requirements for Declaration or Registration of a Conflict ofInterests

8.3.1 Declaration. An official shall immediately declare to an appropriatesenior officer any actual or apparent conflict between therequirements of official duty and any personal interest (whether apecuniary interest or other form of interest ), whenever such aconflict becomes known to the official , and irrespective of whetherthe interest involved is the subject of separate registration. Anofficial shall provide on request any further relevant information ina form and to the extent required.

8.3.2 Registration. In addition, all members of the Senior ExecutiveService (SES), officials acting in an SES position for more than threemonths, officials at equivalent senior levels in units of the publicsector other than Public Service departments, and officialsoccupying identified sensitive positions at any level as determinedby the relevant Chief Executive, shall register in writing with theChief Executive all significant pecuniary and other materialinterests which have a potential to give rise to a real or apparentconflict of interests.

Chief Executives and their equivalents shall register in writing allsignificant pecuniary and other relevant interests which have apotential to give rise to a real or apparent conflict of interests, withthe responsible Minister.

Such registrations of interests shall be made annually. The form ofregistration provided at Appendix 2 to this Code may be used as abasis for such returns. Relevant supplementary information may berequired by Chief Executives at their discretion in particular cases.Chief Executives shall avoid unreasonable intrusion into thepersonal affairs of members of staff and their families.

Where an official fails to resolve a conflict of interests, the ChiefExecutive or the responsible Minister may take such reasonableaction as is necessary or expedient to resolve the conflict, includingby way of transfer of the officer involved to other duties or anotherposition at the same level, re-arrangement of the officer'sresponsibilities, or requiring that the officer dispose of the interest.

Chief Executives may declare specified interests or classes ofinterests which may not be held by the occupants of specifiedpositions, or by specified categories of officials. A Chief Executivemay require an official to dispose of an unacceptable interest.

A Chief Executive may take any action necessary to resolve anofficial's conflict of interests, including the transfer of the official toother duties at an equivalent level (subject to the concurrence of theChair of the Public Sector Management Commission).

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Registration documents shall be treated as confidential to the ChiefExecutive or Minister concerned. Arrangements for the securestorage and eventual disposal of documents shall be theresponsibility of the Chief Executive or Minister as appropriate.Each registration statement shall be returned to the official towhom it relates on the lodgement of a subsequent registration, andnot later than 12 months after the official leaves the agencyconcerned.

8.4 Employment in the Private Sector

8.4.1 Concurrent Private Sector Employment. Employment in the privatesector while concurrently employed in any unit of the public sector,in either a full-time or part-time capacity, or on a contract or casualbasis, can give rise to a real or apparent conflict of interests,especially if the private sector employment uses specific skills,knowledge or official contacts which the official concerned isrequired to use in his or her official position.

Depending on the circumstances, an official's ability to functionefficiently may also be adversely affected.

8.4.2 Private Sector Employment for Which Approval is Required.Working in a private sector business (including self-employment) inthe same profession as that in which a person is employed in thepublic sector, for example as an engineer, architect, accountant,psychologist, or teaching in a tertiary education institution, is to besubject to approval by the official's Chief Executive.

In approving applications to undertake other employment thefollowing criteria need to be addressed -

(a) staff should not engage in employment outside the publicsector if that employment places them in a conflict withtheir official duties; and

(b) outside employment should not affect the effectiveness ofthe organisation or the performance of staff in theirofficial positions, and the outside employment should beperformed wholly in their private time.

In considering applications, Chief Executives should ensure a properbalance between the interests of the public sector employer and therights of public servants to lead their private lives free ofunnecessary intrusions.

Acting as a Director of a Company raises particular concerns. Inaddition to the general requirements governing private sectoremployment Chief Executives should take account of the followingmatters in assessing whether an unacceptable conflict of interest islikely to be created by the directorship -

(a) whether the company is in, or is in the process of enteringinto, a contractual relationship with the government orits agencies;

(b) whether the company is in receipt of governmentassistance, the entitlement to which depends on theexercise of discretion by a public official;

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(c) whether the company's primary purpose is to lobbyMinisters, Members of Parliament, governmentdepartments and agencies or to provide consultancyservices; and

(d) whether the public official's agency is in a regulatoryrelationship with the company.

8.4.3 Private Sector Employment for Which Approval is Not Required.Private sector employment in a capacity which does not involvespecific skills, knowledge or official contacts which the officialconcerned is required to use in his or her official position, and is notlikely to be seen as giving rise to a conflict of interests (for example,driving a taxi, or coaching a sporting team), is not subject to formalapproval, but the details of such should be notified to an appropriatesupervisor.

8.4.4 Voluntary Work. It is a matter for management and the individualstaff member concerned to consider whether formal approval shouldbe required before a staff member engages in unpaid voluntarywork. As a general rule management should not interfere with staffinvolving themselves in outside activities of a voluntary and unpaidnature. Where a conflict of interest arises between these activitiesand official duties, staff have an obligation to raise the issue withdepartmental management.

8.4.5 Applications for Approval to Engage in Other Employment.Applications for approval to engage in other employment should besubmitted to the Chief Executive and should include the followinginformation:

(a) details of the proposed employment and hours ofemployment envisaged;

(b) whether in the applicant's opinion the employment willadversely affect the applicant's efficiency andperformance of duties;

(c) whether in the applicant's opinion the employment willbe likely to cause any conflicts in relation todepartmental requirements for overtime, `on call'situations, rostered shifts, etc.; and

(d) whether in the applicant's opinion the employment isrelevant to confidential or particular information to whichthe applicant has access by virtue of the employment withthe government, or whether the employment mightreasonably be construed by the public as involving aconflict of interests, or whether the employment might bereasonably regarded as in the public interest (eg. tutoringat a university).

A Chief Executive may give conditional approval upon continuedsatisfactory performance of official duties. Where managementconsiders that a conflict of interests has subsequently arisen orperformance of official duties is being adversely affected, forexample because of fatigue or limited availability, the approval maybe withdrawn after discussion of concerns with the official.

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Officials should inform their department of any material change inthe nature or circumstances of the employment for which approvalhas been given.

Permission to engage in private sector employment should not beanticipated. It is necessary that the approval of the Chief Executivebe obtained before an official commences such employment.

Officers should obtain specific approval of their Chief Executive toretain fees from any private activity which could. reasonably be seento be part of or connected with their official duties.

8.4.6 Appointments or Employment After Retirement or Resignation.These procedures should be followed in cases where a public officialresigns or retires to take up a private-sector appointment. They areintended, without unduly hindering mobility between the public andprivate sectors, to protect the integrity of government by limitingthe conflicts of interests that can arise or appear to arise in suchcases.

The procedures are concerned with a number of matters, forexample -

(a) the use of confidential information gained by virtue of aformer public official's position;

(b) the use of departmental contacts or personal influence bya former official to secure preferential treatment for anew employer; or

(c) any prior actions or decisions by an official, which mayappear to have been intended to give an advantage to acompany in anticipation of the public servant receiving anoffer of employment from that company.

The procedures apply to all Chief Executives, members of the SeniorExecutive Service, and to any other public official whose proposedprivate sector employment could give rise to a conflict of interests,including -

(a) those involved in purchasing or procurement functionsespecially when the capability of suppliers is closelyconnected with the determining of a specification;

(b) those concerned with contractual or regulatoryrelationships;

(c) those having a significant discretion in conferring someadvantage, for example, a licence, concession or grant; or

(d) those with privileged knowledge of Governmentintentions which could confer direct pecuniary advantage.

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8.4.7 Application for Assent to Employment After Retirement orResignation. When a relevant offer of employment is made to apublic official, the official should immediately apply for assent totake up the proposed employment, if there is a possibility that theemployment could give rise to an actual or apparent conflict ofinterests and the official intends to accept the offer. (Where theofficial does not intend to accept the offer or is undecided, theyshould ensure that appropriate action is taken immediately tominimise possible concerns about conflict of interests.)

The application should state any relationship that exists betweenany of the official's duties over the preceding two years and theproposed future employment, and should also include a statementdescribing any possible conflicts of interest perceived by the publicofficial.

Chief Executives should apply in similar terms to the Chair of thePublic Sector Management Commission for assent to private sectoremployment.

It would generally be appropriate for an undertaking to be obtainedfrom the applicant regarding the use of official information gainedby the applicant in the course of the applicant's public sectoremployment.

In some cases, consideration should be given to imposing conditionsregarding the nature of contacts to be made with units of the publicsector for a specified period.

Chief Executives are required to establish appropriateadministrative procedures to ensure that officials from theiragencies taking up private sector employment are aware of thegeneral or specific obligations applying to them in relation to the useof official information and contacts. Where such employment couldreasonable be seen as involving a conflict of interests for the official,or as likely to compromise the integrity of the public sector, theChief Executive is to advise the official of the period for which theobligations are to apply.

9. GENERAL OBLIGATION 4: DILIGENCE

Public officials shall exercise due diligence , care and attention, andshall at all times seek to achieve high standards of publicadministration in relation to the duties and responsibilities of theirofficial position.

9.1 Diligence , Care and Attention

The obligation requires officials to recognise that they have a duty toreturn "a fair day's work for a fair day's pay", and that they are expected toperform their duties to the best of their ability.

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In addition, officials have a duty to exercise appropriate standards of careand attention in the carrying out of their official functions, particularlywhere members of the public may reasonably expect to be able to rely onthe information or advice provided to them by an official, or from officialsources. That is to say, officials are expected to act responsibly, and to theextent that is appropriate, to be accountable for their decisions andconduct in their official capacity.

Individual officials are required to recognise that they have an obligationto ensure that personal use of alcohol and other drugs does not bring thepublic sector or an agency into disrepute, or result in unsatisfactory workperformance, or affect the performance or safety of others.

The obligation also extends to requiring officials to avoid distracting, orotherwise preventing other officials from complying with this obligation.

For the purposes of this obligation, the words "due diligence, care andattention" are to be taken as including any relevant professional ethicsstandard promulgated by a recognised professional body.

9.2 Standards of Good Administration

Officials are advised and encouraged to apply the following standards ofgood administration to the performance of their official duties, unless itcan be demonstrated that their implementation in a particular case wouldbe contrary to the public interest.

In the implementation of these standards with respect to any proposedadministrative action, account should be taken of the requirements of goodand efficient administration, the interests of any person(s) who might beaffected adversely by the action, the interests of any person(s) who mightbenefit from the action, and the public interest.

Where these requirements or interests make it necessary to modify orexclude one or more of these principles either in particular cases or inspecific areas of public administration, every endeavour shouldnevertheless be made to observe the spirit of the principles.

The term "discretionary power" means a power which leaves anadministrative authority some degree of latitude as regards the decision tobe taken, enabling the choice from among several legally permissibledecisions, of the one which is considered to be the most appropriate.

9.2.1 Procedural Fairness

(a) In respect of any administrative decision or action of sucha discretionary nature which is likely to affect adversely aperson's rights, liberties, interests or legitimateexpectations, the person concerned should be afforded aneffective opportunity to put forward facts and argumentsand, in appropriate cases, call evidence, which will betaken into account by the administrative authority.

(b) In appropriate cases, the person concerned should beinformed in due time and in a manner appropriate to thecase, of the rights stated in the preceding paragraph, andof the particulars of any adverse material which theperson may wish to address.

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9.2.2 Access to Information

Upon request, the person concerned should be informed, before anadministrative decision or action is taken, by appropriate means, ofall factors relevant to the taking of that decision or action.

9.2.3 Assistance in Representation

The person concerned may be assisted or represented in theadministrative procedure, except where such assistance orrepresentation has been specifically prohibited by legislation.

9.2.4 Statement of Reasons

Where an administrative decision or action is of such a nature asadversely to affect a person's rights, liberties or interests, the personconcerned should be informed of the reasons on which it is based.This should be done either by stating the reasons with notification ofthe decision or the action, or by communicating them, on request, tothe person concerned, in writing, within a reasonable time.

9.2.5 Indication of Remedies

Where an administrative decision or action adversely affecting therights, liberties or interests of a person is notified in written form,the notification should indicate any rights of appeal, or normalremedies against it, as well as the time limits for their utilisation.

9.2.6 Discretionary Powers

An administrative authority or official acting in an official capacity,when exercising a discretionary power -

(a) shall not pursue a purpose other than that for which thepower has been conferred;

(b) shall observe objectivity and impartiality, taking intoaccount only the factors relevant to a particular case;

(c) shall observe the principle of equality before the law byavoiding unfair discrimination;

(d) shall maintain a proper balance between any adverseeffects which its decision may have on the rights, libertiesor interests of persons, and the purpose which it pursues;

(e) shall take its decision within a time which is reasonablehaving regard to the matter at stake; and

(f) shall apply any general administrative guidelines in aconsistent manner while at the same time taking accountof the particular circumstances of each case.

9.2.7 Procedure

(a) Any general administrative guidelines which govern theexercise of a discretionary power should be:

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(i) made public, or

(ii) communicated in an appropriate manner and to theextent that is necessary to the person concerned, onrequest, be it before or after the taking of thedecision or action concerning the person.

(b) Where an administrative authority, in exercising adiscretionary power, departs from a generaladministrative guideline in such a manner as to affectadversely the rights, liberties or interests of a person, thelatter should be informed of the reasons for this decision,either by stating the reasons in the notification of thedecision, or by communicating them, on request, to theperson concerned, in writing, within a reasonable time.

9.2.8 Fact Finding

It shall be the duty of an authority in proceeding to a decision totake all reasonable steps to ascertain the facts which are material tothe decision.

9.2.9 General

Where a written request is made to any authority or official forinformation relating to the discharge of its duties or the exercise ofits powers, being information that ought reasonably to be given, itshall be the duty of the authority to take all reasonable steps toensure that such information is given expeditiously and is accurate.

Where any authority or official receives a request in writing fromany person to make a decision in pursuance of any statutory duty,power or discretion, it shall be the duty of that authority to makethe decision to which the request relates within a reasonable time ofthe date of the receipt of the request by the authority.

An authority or official shall take all reasonable steps to ensure thatits decisions are made known to those persons likely to be affectedby them.

No decision shall have retrospective effect unless the decision istaken to relieve particular hardship resulting from an earlierdecision.

10. GENERAL OBLIGATION 5: ECONOMY AND EF ICIENCY

Public officials shall avoid waste , abuse and extravagance in theprovision or use of public resources, and shall expose fraud andcorruption of which the official is aware.

This obligation requires officials to recognise that they have a duty toensure that taxpayer-provided resources of all kinds should be usedeconomically for the purposes for which they were provided and intended,treated with appropriate care and maintenance, and should be properlysecured against theft or misuse.

In addition, this obligation requires officials to be economical, and to avoidwaste and extravagance in the provision of resources for the programpurposes of a public sector agency.

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Part II and Part IIA of the Financial Administration and Audit Act1977-1991 set out relevant requirements in relation to the avoidance ofwaste and extravagance in the expenditure of public resources (seeAppendix 1).

The Criminal Justice Commission Act 1989-1991 (s.2.28) requiresidentified public officials to notify the Commission of suspected officialmisconduct.

The Public Service Management and Employment Act 1988-1991 containsprovisions requiring the efficient and effective use and deployment ofresources (eg. ss .6, 12(3), 28, 34(1)).

11. BREACHES OF THE PUBLIC SECTOR ETHICS ACT 1992 ORTHE CODE OF CONDUCT FOR APPOINTED PUBLICOFFICIALS.

A breach of, or failure to comply with, the requirements of the Act, theCode, or any formal adjunct to the Code, may, by virtue of Part 7 of the Actbe deemed to be a breach of the disciplinary provisions of the legislationunder which the public official is appointed or employed.

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APPENDIX 1

RELEVANT LEGISLATION

1. SECTIONS OF THE CRIMINAL CODE OF QUEENSLANDDEALING WITH OFFICIAL OFFENCES

[s.86]86. Disclosure of other official secrets . Any person who, being employed in

the Public Service, publishes or communicates any fact which comes to hisknowledge by virtue of his office and which it is his duty to keep secret, or anydocument which comes to his possession by virtue of his office and which it is hisduty to keep secret, except to some person to whom he is bound to publish orcommunicate it, is guilty of a misdemeanour, and is liable to imprisonment for twoyears.

[s.87]87. Official corruption.Any person who -(1) Being employed in the Public Service, or being the holder of any

public office, and being charged with the performance of any duty byvirtue of such employment or office, not being a duty touching theadministration of justice, corruptly asks, receives, or obtains, oragrees or attempts to receive or obtain, any property or benefit ofany kind for himself or any other person on account of any thingalready done or omitted to be done, or to be afterwards done oromitted to be done, by him in the discharge of the duties of his office;or

(2) Corruptly gives, confers or procures, or promises or offers to give orconfer, or to procure or attempt to procure, to, upon, or for, anyperson employed in the Public Service, or being the holder of anypublic office, or to, upon, or for, any other person, any property orbenefit of any kind on account of any such act or omission on thepart of the person so employed or holding such office;

is guilty of a crime, and is liable to imprisonment for seven years, and to be fined atthe discretion of the court.

The offender cannot be arrested without warrant.

[s.88]88. Exertion by public officers . Any person who, being employed in the

Public Service, takes or accepts from any person, for the performance of his duty assuch officer, any reward beyond his proper pay and emoluments, or any promise ofsuch reward, is guilty of a misdemeanour, and is liable to imprisonment for threeyears.

[s.89]89. Public officers interested in contracts . Any person who, being

employed in the Public Service, knowingly acquires or holds, directly or indirectly,otherwise than as a member of a registered joint stock company consisting of morethan twenty persons, a private interest in any contract or agreement which is madeon account of the Public Service with respect to any matter concerning thedepartment of the Service in which he is employed, is guilty of a misdemeanour,and is liable to imprisonment for three years; and to be fined at the discretion ofthe Court.

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[s.90]90. Officers charged with administration of property of a special character

or with special duties . Any person who, being employed in the Public Service, andbeing charged by virtue of his employment with any judicial or administrativeduties respecting property of a special character, or respecting the carrying on ofany manufacture, trade, or business, of a special character, and having acquired orholding, directly or indirectly, a private interest in any such property, manufacture,trade, or business, discharges any such duties with respect to the property,manufacture, trade, or business, in which he has such interest, or with respect tothe conduct of any person in relation thereto, is guilty of a misdemeanour, and isliable to imprisonment for one year, and to be fined at the discretion of the Court.

[s.91]91. False claims by officials . Any person who, being employed in the

Public Service in such a capacity as to require him or to enable him to furnishreturns or statements touching any remuneration payable or claimed to be payableto himself or to any other person, or touching any other matter required by law tobe certified for the purpose of any payment of money or delivery of goods to be madeto any person, makes a return or statement touching any such matter which is, tohis knowledge, false in any material particular, is guilty of a misdemeanour, and isliable to imprisonment for three years.

[s.92]92. Abuse of office. Any person who, being employed in the Public Service,

does or directs to be done, in abuse of the authority of his office, any arbitrary actprejudicial to the rights of another is guilty of a misdemeanour, and is liable toimprisonment for two years.

If the act is done or directed to be done for purposes of gain, he is liable toimprisonment for three years.

[s.121]121. Official corruption not judicial but relating to offences . Any person

who -(1) Being a justice not acting judicially, or being a person employed in

the Public Service in any capacity not judicial for the prosecution ordetention or punishment of offenders, corruptly asks, receives, orobtains, or agrees or attempts to receive or obtain, any property orbenefit of any kind for himself or any other person, on account ofanything already done or omitted to be done, or to be afterwardsdone or omitted to be done, by him, with a view to corrupt orimproper interference with the due administration of justice, or theprocurement or facilitation of the commission of any offence, or theprotection of any offender or intending offender from detection orpunishment; or

(2) Corruptly gives, confers,or procures, or promises or offers to give orconfer, or to procure of attempt to procure, to, upon, or for, any suchperson, or to, upon, or for, any other person, any property or benefitof any kind, on account of any such act or omission on the part of thejustice or other person so employed;

is guilty of a crime, and is liable to imprisonment for fourteen years, and to be finedat the discretion of the Court.

The offender cannot be arrested without warrant.

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[s.442M]422M . (1) Custom of itself no defence . In any prosecution under this

Chapter it does not amount to a defence to show that the receiving, soliciting,giving, or offering of any valuable consideration therein mentioned or referred to iscustomary in any trade, business, or calling.

(2) Burden of proof that gift not secret commission . If in any prosecutionunder this Chapter it is proved that any valuable consideration has been receivedor solicited by an agent from or given or offered to an agent by any person havingbusiness relations with the principal, without the assent of the principal, theburden of proving that such valuable consideration was not received, solicited,given, or offered in contravention of any of the provisions of this Chapter shall beon the accused.

(3) Consent to prosecution . No prosecution under this Chapter shall becommenced without consent of a Crown Law Officer.

2. PUBLIC FINANCE STANDARDS 625 ANDSECTION 46L FINANCIAL ADMINISTRATION AND AUDIT ACT 1977-1991

"PART IIB - PUBLIC FINANCE STANDARDS46L. Public Finance Standards . (1) The Treasurer shall from time to time

prepare and issue standards to accountable officers and statutory bodies withrespect to the policies and principles of financial administration to be observed andmay at any time amend, alter or vary standards so issued.

(2) Before issuing, amending, altering or varying the Public FinanceStandards the Treasurer shall furnish the Auditor-General with particulars of theproposed standards or any amendment, alteration or variation thereof and, to theextent that the Auditor-General may have an interest therein by reason of hisresponsibilities under this Act or any other Act or law or any convention, invite himto comment thereon.

(3) The Treasurer shall furnish the Auditor-General with a copy of thePublic Finance Standards and with a copy of every amendment, alteration orvariation thereof.

(4) A Public Finance Standard issued under this section may applygenerally or be limited in its application by reference to specified exemptions orfactors.

(5) Every accountable officer and statutory body shall, subject to theprovisions of this Act or of any other Act or law that applies, comply with the publicFinance Standards applicable to him or it.".

625 Conflicts of Interest. (1) Each accountable officer of a department andeach statutory body shall specify in the accounting manual and disseminate by wayof an approved code of conduct or otherwise, principles and procedures to safeguardmembers, officers or employees thereof from being involved in a situation whichcould lead to or be seen to give rise to a conflict of interest.

(2) This Public Finance Standard shall be read in conjunction withsections 87 and 88 of the Criminal Code and the matters to be specified pursuant toparagraph (1) hereof shall be read subject to that Code, any Act and these PublicFinance Standards. Where conflict in interpretation arises the Treasurer shall beadvised in writing.

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(3) A member, officer or employee of a department or statutory body shall not -(a) solicit any benefit from persons other than his employer in

connection with his official functions and duties;

(b) accept any benefit other than from his employer for any officialfunction or duties performed or not performed which could create aconflict of interest or be seen to create such conflict;

(c) accept any gift of money or benefit by way of loans and the like forany functions or duties performed or not performed.

Provided that this Public Finance Standard shall not be construed to prohibit thepursuit of financial assistance or donations to a department or statutory bodywhere such pursuit is in accordance with the Collections Act or is otherwiseauthorised in law.

(4) A member, officer or employee of a department or statutory body may accepta benefit, not being a benefit referred to in paragraph (3) hereof; provided that -

(a) in the case of normal entertainment, hospitality and minorpresentations of no significance or lasting real value which conformwith industry/country norms, the circumstances and the benefitinvolved are advised to his senior officer as specified in theaccounting manual;

(b) in all other cases, a reportable gift declaration shall be made in theform and in accordance with procedures set forth in the accountingmanual in order that the matter may be formally recorded inaccordance with this Public Finance Standard.

For the purposes of this Public Finance Standard -

"reportable gift" means any gift of property, travel, entertainment,hospitality or any other benefit which is not consistent withindustry/country norms. The term includes in any case valuableitems of property whether of a personal nature or otherwise (e.g.ornate or precision display items such as clocks, furniture, figurines,works of art and the like and other items of enduring valueincluding jewellery and personal items containing precious metals orstone or fine art work).

(5) Reportable gifts received by virtue of holding a position of the Crown or theposition of an officer, member or employee in a department or a statutory bodyshall be declared within fourteen days of receipt and recorded in accordance withparagraph (7) of this Public Finance Standard and, shall be accounted for as publicproperty, or, as the case requires, as property of the statutory body.

(6) Reportable gifts shall not be made without prior approval -(a) pursuant to section 77 of the Act in the case of a department;

or(b) of the statutory body.

(7) A record of reportable gifts made and a record of reportable gifts receivedshall be maintained in which particulars shall be recorded indicating the date ofthe reportable gift, parties involved, particulars of the reportable gift and -

(a) in the case of reportable gifts made, the approval given; or(b) in the case of reportable gifts received, the present location of the

reportable gift or application of proceeds.

(8) Reportable gifts received, after being declared and recorded in the mannerrequired by these Public Finance Standards, shall be kept by the department orstatutory body as an asset or otherwise disposed of as an asset under these PublicFinance Standards.

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3. CRIMINAL JUSTICE ACT 1989-1991

2.22 Official misconduct. (1) For the purposes of this Act, official misconduct is -(a) conduct that is in the general nature of official misconduct

prescribed by section 2.23;(b) a conspiracy or attempt to engage in conduct referred to in

paragraph (a).

(2) Conduct may be official misconduct for the purposes of this Actnotwithstanding that -

(a) it occurred before the commencement of this Act;(b) some or all of the effects or ingredients necessary to constitute

official misconduct occurred before the commencement of this Act;or

(c) a person involved in the conduct is no longer the holder of anappointment in a unit of public administration.

(3) Conduct engaged in by, or in relation to, a person at a time when he is notthe holder of an appointment in a unit of public administration may be officialmisconduct, if he becomes the holder of such an appointment.

(4) Conduct may be official misconduct for the purposes of this Act regardless of

(a) where the conduct is engaged in;(b) whether the law relevant to the conduct is a law of Queensland or of

another jurisdiction.

2.23 General nature of official misconduct . (1) Official misconduct is -(a) conduct of a person, whether or not he holds an appointment in a

unit of public administration, that adversely affects, or couldadversely affect, directly or indirectly, the honest and impartialdischarge of functions or exercise of powers or authority of a unit ofpublic administration or of any person holding an appointmenttherein;

(b) conduct of a person while he holds or held an appointment in a unitof public administration -(i) that constitutes or involves the discharge of his functions or

exercise of his powers or authority, as the holder of theappointment, in a manner that is not honest or is not impartial;

or

(ii) that constitutes or involves a breach of the trust placed in himby reason of his holding the appointment in a unit of publicadministration;

or

(c) conduct that involves the misuse by any person of information ormaterial that he has acquired in or in connexion with the dischargeof his functions or exercise of his powers or authority as the holderof an appointment in a unit of public administration, whether themisuse is for the benefit of himself or another person,

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and in any such case , constitutes or could constitute -

(d) in the case of conduct of a person who is the holder of anappointment in the unit of public administration, a criminal offence,or a disciplinary breach that provides reasonable grounds fortermination of the person 's services in the unit of publicadministration;

(e) in the case of any other person , a criminal offence.

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APPENDIX 2

DRAFT PROFORMA FOR THE REGISTRATION OF PECUNIARY INTERESTS

ATE All !t S#f

Particulars of my private interests and those of my immediate family of which Iam aware are set out in the attached form.

I confirm that I shall advise you should a situation arise where an interest ofmine or an interest of a member of my immediate family of which I am aware,whether that interest is pecuniary or otherwise , conflicts , or may reasonably bethought to conflict, with my public duty.

............................................................signature

...........................................................position

..............................date

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RETURN OF PRIVATE INTERESTS OF OFFICER AND IMMEDIATE FAMILY(Spouse and Dependent Children)

It is suggested that the accompanying Explanatory Notes be read before this returnis completed.

REAL ESTATE

Real Estate in which a beneficial interest is held:

Location Owner Purpose for which held

........................................

........................................

........................................

...........................................

...........................................

...........................................

...........................................

...........................................

...........................................

SHAREHOLDINGS

(other than nominal shareholdings by way of qualification for membership of acredit union, building society or other co-operative society):

Owner of shares

................................................................

.................................................... :...........

................................................................

Name of company(including holding companies and

subsidiary companies if applicable)

...................................................................

...................................................................

...................................................................

TRUSTS/NOMINEE COMPANIES

(a) Where any beneficial interest is held in a family or business trust or a nomineecompany:

Trust or Nature of Nature of Name of personnominee interest operations of holding the interestcompany trust or company

............................................................. ........................... ...............................

............................................................. ........................... ...............................

............................................................. ........................... ...............................

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(b) Where a trustee of a family or business trust:

Trust Name of Beneficiaries Nature oftrustee operations

...........................

...........................

...........................

...........................

...........................

...........................

DIRECTORSHIPS IN COMPANIES

...............................

...............................

...............................

..................................

..................................

..................................

In regard to any directorships, whether remunerated or not:

Name of Name of Activities of companydirector company whether public or private

.................................

.................................

.................................

.............................

.............................

.............................

................................................................

................................................................

................................................................

PARTNERSHIPS ETC

Person holding Nature of Nature of business interestinterest operations

................................. ............................. ................................................................

................................. ............................. ................................................................

................................. ............................. ................................................................

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1Mj `jy' IDl M

Investments in bonds, debentures, savings or investment accounts with banks orother financial institutions. Where the cumulative value of such investments isless than $5,000 no registration is required.

Person holding Type of Body in whichinvestment investment investment is held

........................................

........................................

........................................

...........................................

...........................................

...........................................

...........................................

...........................................

...........................................

ASSETSOTHER

List each asset valued at over $5,000 including collections. Household or personaleffects and motor vehicles for personal use are to be excluded:

Owner of asset Nature of asset

................................................................

................................................................

................................................................

...................................................................

...................................................................

...................................................................

OTHER SUBSTANTIAL SOURCES OF INCOME

Exclude salary from own public sector employment:

Person receiving income

................................................................

................................................................

................................................................

Nature of income

...................................................................

...................................................................

...................................................................

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ANY GIFTS, SUBSTANTIAL SPONSORED TRAVEL OR HOSPITALITY

Person receiving gift etc Nature of gift etc

................................................................

................................................................

................................................................

...................................................................

...................................................................

...................................................................

LIABILITIES

Liabilities other than ordinary short term credit arrangements:

Person concerned Nature of liability

........................................

........................................

........................................

OTHER INTERESTS

...........................................

...........................................

...........................................

Creditor

...........................................

...........................................

...........................................

.........................................................................................................................................

.........................................................................................................................................

.........................................................................................................................................

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RETURN OF PRIVATE INTERESTS

EXPLANATORY NOTES

General

The purpose of the return of private interests is to place on the recordinterests of officials which may conflict, or may be seen to conflict, withtheir public duty. As no form can cover all possible circumstances, officialsshould bear in mind the purpose and spirit of the return in deciding whichmatters should be declared.

Officials should include under all headings interests of immediate familymembers to the extent they are aware of them (spouse, including de factospouse, and dependent children). When interests are held jointly withspouse or dependants an appropriate annotation such as `jointly ownedwith spouse' should be made.

Where interests could be included under more than one heading, it issuggested they need be included only under the most specific heading,unless two aspects need to be disclosed (eg. real estate, plus a mortgageliability on that real estate).

In relation to a request for access from the Parliament or a committee ofthe Parliament, a Court or Tribunal or from a person pursuant to FOIprovisions, such a request will be dealt with according to law.

Returns will be made available to Ministers only on request and theofficial will be informed of a request for access to his or her return.

Real Estate

`Location': There is no need to specify street address - general location (e.g.suburb, or area, and State) is adequate.

`Purpose for Which Held': Specify whether property is used as a residence,as a holiday home, as a farm, or is held for investment or other businesspurposes.

Share Holdings

Notify any interest in any shares other than nominal shareholdings byway of qualification for membership of a credit union, building society orother co-operative society. Include equitable as well as legal interests,whether held directly or indirectly, which enable officials or members oftheir families to exercise control over the right to vote or dispose of thoseshares including interests held on behalf of officials or their families by anominee or by a nominee company.

Where interests are held in a `private holding company' (ie. a privatecompany formed for the purpose of investing in subsidiary companies) anysuch subsidiary company should also be named.

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Trusts/Nominee Companies

Note that both beneficial interests and trusteeship responsibilities shouldbe specified.

Partnerships etc.

Under `Nature of Operation' specify purpose of operations of partnership orjoint business undertaking (eg. investment, consultancy).

Under `Nature of Business Interests' specify level of current involvementin partnership or joint business interest (eg. `financial ( sleeping) partner',`consultant').

Other Investments

`Investments' mean any placement of monies, which attracts interest orother benefits

ordinary, non interest-bearing cheque accounts should not beincluded, but savings accounts, investment accounts, bonds,debentures, etc. should be included.where the cumulative amount held in savings accounts, portfoliosand other investments does not exceed $5,000 disclosure is notrequired.

Other Assets

List each asset valued at over $5,000 including collections. Household orpersonal effects and motor vehicles for personal use are to be excluded.

include collections or items valued at $5,000 or over (eg. stamps,paintings, antiques)do not list household items and personal effects e.g. family car(s),caravan and/or trailerdo not include items which might be listed under more specificheadings (eg. investments, gifts received).

Private life assurance policies should be included but superannuationentitlements need not be included as the scheme is common to all officials.

As a general rule of thumb, items of under $5,000 value may not requireinclusion under this heading unless they are of a nature which might bejudged to be an appearance of conflict of interests.

Other Substantial Sources of Income

Own salary not to be included here.

Include spouse's income from employment and any income by self, spouse,or dependants from investments, annuity arrangements, pensions or undergovernmental assistance schemes. A simple reference to `income frominvestments as set out above' is sufficient for investment income.

Note that no minimum income is specified. As a general rule of thumb,income over $5000 per annum might be notifiable, but smaller amountsfrom sources which might involve sensitivity or be capable ofmisconstruction should be included.

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Gift Sponsored TraveUHospitalit^

Officers will note the need to comply with the guidelines in relation to thereceipt of official gifts. Inclusions under this heading would normallyrelate only to gifts received by a spouse or dependants.

It is not necessary to declare gifts received from family members orpersonal friends in a purely personal capacity unless it is judged anappearance of a conflict of interests might otherwise exist.

Include all liabilities (eg. mortgages, hire purchase arrangements,personal loans and overdraft facilities), but not short term creditarrangements (eg. credit cards or department store accounts).

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APPENDIX G

DRAFT CODE OF CONDUCT FOR ELECTED REPRESENTATIVES

CODE OF CONDUCT FOR ELECTED REPRESENTATIVES

1992

Table of Contents

1 Standards of Conduct for Elected Representatives G2

2 Authority for this Code of Conduct. G3

3 The Obligations of a Member G4

4 General Obligation 1: Respect for the Law and the Systemof Government G4

5 General Obligation 2: Respect for Persons G5

6 General Obligation 3: Integrity G5

7 General Obligation 4: Diligence G9

8 General Obligation 5: Economy and Efficiency G9

9 Special Requirements in Relation to Ministers G9

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1. STANDARDS OF CONDUCT FOR ELECTED REPRESENTATIVES

Elected representatives participate in various ways in the making of decisionswhich can have significant effects on the lives of ordinary citizens. Thepowers exercised by them must be used properly, and in the public interest.

Because of their privileged position, elected representatives have the potentialto affect public confidence in the system of government and the integrity ofpublic administration. This is a particular cause for concern where electedrepresentatives become involved in the misuse of official information, orinappropriate involvement in administrative processes, or questionablepersonal conduct, or conflicts between their personal interests and theirpublic duty. Alternatively, the conduct of elected representatives can serve asa positive model for the public sector, and for the community.

The standards of conduct which may be expected of elected representativesare therefore a matter for legitimate and continuing concern by the public.This Code of Conduct provides guidelines on what those standards are, ingeneral terms.

This Code applies to Members of the Legislative Assembly of Queensland andelected Members of Local Authorities. Other Codes of Conduct promulgatedunder the Public Sector Ethics Act 1992 relate to other categories of publicofficial.

1.1 The Public Interest

The idea of "the public interest" lies at the centre of the concept of responsiblepublic service, which has its roots in the conventions of the "Westminster"tradition of democratic government and public administration.

This Code of Conduct explains how concern for the public interest is expectedto guide the conduct of elected representatives in Local Authorities and theLegislative Assembly, including Ministers. The Code also explains the relatedidea of responsibility, in the terms of the duty of trusteeship owed by electedrepresentatives for the way they use the powers and the resources provided tothem.

For consistency, the Code refers to all categories of elected representatives as"Members".

1.2 The Code of Conduct for Elected Representatives

This Code is intended to assist Members (i) to identify and apply the ethicalstandards which are expected in the Queensland public sector generally, and(ii) to recognise and deal with relevant ethics issues in accordance with thosestandards. The Code is part of a four part ethics strategy.

The parts of the strategy are:

(a) The Public Sector Ethics Act 1992, which identifies fundamentalethical principles for the whole of the Queensland public sectorincluding Members, and identifies general ethical obligations whichgovern the conduct of public officials at all levels.

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(b) This Code of Conduct and other Codes promulgated under the Act.

(c) Agency-specific rules developed by individual public sectoragencies, identifying how particular matters of concern to thatorganisation are to be dealt with.

(d) The Office of Public Sector Ethics, the functions of which include:

(i) ensuring as far as possible a reasonable and consistentapproach to public sector ethics matters, especially disciplinaryaction, for the whole public sector;

(ii) giving independent advice on specific matters;

(iii) contributing to appropriate new training and developmentactivities for staff at all levels and in all public sector agencies;and

(iv) consulting with the Advisory Panel on Public Sector Ethics.

The Code of Conduct provides consistent, authoritative and relevant guidance,expressed in terms of general principles, on the standards which are expectedto govern the conduct of Members acting in, or in connection with, theirofficial capacity.

It is a responsibility of Members to become familiar with the provisions of thePublic Sector Ethics Act 1992 and this Code of Conduct.

For a comprehensive understanding of the required standards of officialconduct in the Queensland public sector it is desirable that Members read thePublic Sector Ethics Act 1992 and this Code as a whole, rather than rely onindividual provisions in isolation.

2. AUTHORITY FOR THIS CODE OF CONDUCT

2.1 Authority

This Code of Conduct is formally constituted as a Regulation made under thePublic Sector Ethics Act 1992 (the Act). It is binding on all electedrepresentatives as defined in Part 3 of the Act, including Ministers and otherMembers of the Legislative Assembly, and Members of Local Authorities.

The obligations of Members in relation to their official conduct generally areset out in the Act (see Sections 3 to 8). The special obligations of Ministersare set out in section 9 of this Code.

2.2 Sanctions

Breaches of the Act and this Code may be dealt with as determined by theParliament. Breaches by Members of Local Authorities may be dealt with asdetermined by the Minister for Local Government.

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3. THE OBLIGATIONS OF A MEMBER

The general obligations are prescribed in the Public Sector Ethics Act 1992and the regulations to that Act. They are as follows:

(a) Respect for the Law and the System of Government - Membersshall uphold the laws of Queensland and Australia, and shall not,without just cause, be a party to their breach, evasion, orsubversion. Members shall act with respect towards theinstitutions of both Parliament and local government, and shallensure that their conduct, whether in a personal or officialcapacity, does not bring the Parliament or local government intodisrepute, or damage public confidence in the system of government.

(b) Respect for Persons - Members shall treat other Members,members of the public and other officials honestly and fairly, andwith proper regard for their rights, entitlements, duties andobligations, and shall at all times act responsively in theperformance of their public duties.

(c) Integrity - Members shall at all times seek to advance the commongood of the community which they serve, in recognition that publicoffice involves a public trust. In particular Members shall ensurethat their official powers or position are not used improperly forpersonal advantage, and that any conflict between personalinterests and public duty which may arise is resolved in favour ofthe public interest.

(d) Diligence - Members shall exercise due diligence, care andattention, and shall at all times seek to achieve the higheststandards practicable in relation to their duties andresponsibilities in their official capacity as a Member of theParliament or Member of a Local Authority.

(e) Economy and Efficiency - Members shall avoid waste, abuse andextravagance in the provision or use of public resources, and shallexpose fraud and corruption of which the Member is aware.

4. GENERAL OBLIGATION 1: RESPECT FOR THE LAW AND THESYSTEM OF GOVERNMENT

Members shall uphold the laws of Queensland and Australia , and shallnot, without just cause , be a party to their breach , evasion, orsubversion. Members shall act with respect towards the institutions ofboth Parliament and local government , and shall ensure that theirconduct, whether in a personal or official capacity, does not bring theParliament or local government into disrepute or damage publicconfidence in the system of government.

This general obligation governs the conduct of Members in relation to -

(a) the primary duty of all public officials to act in accordance with theprinciple of the rule of law, and to observe the requirements ofrelevant laws to the best of their knowledge and ability, whenacting in an official capacity; and

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(b) the expectation that public officials in their capacity as privatecitizens will observe the laws of Queensland and Australia to thebest of their knowledge and ability, and will avoid any improperinvolvement with others who fail to observe either the letter or thespirit of those laws.

The obligation is qualified by the condition - "without just cause". Thisexception is provided in order to recognise that on exceptional occasions thepublic interest would be better served by not complying with the requirementsof a law or policy which can be demonstrated to be in conflict with another lawor policy, or which would result in substantial and unintended effects whichwould be contrary to the public interest.

5. GENERAL OBLIGATION 2: RESPECT FOR PERSONS

Members shall treat other Members , members of the public, and otherofficials honestly and fairly, and with proper regard for their rights,entitlements, duties and obligations, and shall at all times actresponsively in the performance of their public duties.

The obligation covers the conduct of Members in their dealings with others,whether members of the public, other Members, or other public officials in theQueensland public sector.

The obligation requires Members to recognise, that the Parliament and localgovernment are both means to meeting the needs of the community whichmaintain them, rather than an end in itself. Members of Parliament and ofLocal Authorities are therefore properly regarded as servants of thecommunity.

In practice, the obligation implies that Members will be expected, as far asthey are able, to -

(a) provide responsive, effective and courteous service to all those withwhom they have official dealings;

(b) act honestly and fairly at all times;

(c) respect the rights to confidentiality in relation to personalinformation of members of the public and other officials;

(d) avoid all forms of unjustified discrimination; and

(e) avoid any conduct or action which prevents or distracts otherMembers or officials from performing their proper functions.

6. GENERAL OBLIGATION 3: INTEGRITY

Members shall at all times seek to advance the common good of thecommunity which they serve, in recognition that public office involves apublic trust. In particular Members shall ensure that their officialpowers or position are not used improperly for personal advantage, andthat any conflict between personal interests and public duty which mayarise is resolved in favour of the public interest.

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This general obligation requires individual Members to recognise thatintegrity in government encompasses a wide range of matters which have incommon the idea that public office involves a position of trust which Membersmust honour.

The obligation governs Members in relation to their actions, conduct andrelationships, if they are such as to give rise to reasonable doubt that aMember has used or is using the powers or influence of public office, officialresources, or official information in accordance with the public interest.

Public confidence in the integrity of the system of government is put at riskwhen the conduct of a public official involves or appears to involve a conflict ofloyalties - usually stated as "a conflict between private interests and publicduty".

In this context, the public interest is served when Members recognise that thetrust placed in them by the community requires that they -

(a) base their decisions and conduct on a proper consideration of thegeneral good of the community, (subject to the requirements of thelaw), and exclude improper advantage to any person or sectionalinterest group (including any religious, ideological, professional,commercial, sporting or other interest);

(b) ensure that the potential for conflict between personal interests,whether pecuniary or otherwise, and the requirements of publicduty, is minimised; and

(c) ensure that any conflict, including apparent conflict, betweenpublic duty and private interests which does arise is resolved asquickly as possible, and in favour of the public interest.

6.1 Improper Use of Political and Other Influence.

A Member shall not use improperly their influence in order to obtainappointment, promotion, advancement, transfer or any other advantagewithin the public sector on behalf of another, or to affect the properoutcome of any procedure established under legislation for themanagement of a unit of the public sector.

Members should recognise that a non-elected public official responsiblefor the making of a decision under legislation governing any aspect ofthe management of a unit of the public sector, or for a recommendationfor the purpose of making such a decision, is required to refuse to takeaccount of any attempt by any person whatsoever to influence themaking of such a decision unless the involvement of that person isrequired by or consistent with the provisions of the relevant legislation.

6.2 Personal Conduct In and Outside the Parliament

Members shall ensure that their personal conduct does not adverselyaffect -

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(a) their ability to perform their official duties;

(b) the ability of other Members or other public officials to performtheir official duties; and

(c) public confidence in the integrity of the system of governmentand public sector management.

6.3 Conflicts of Interest

"Interests" take two forms, usually referred to as "pecuniary interests"(involving financial advantage) and "non-pecuniary interests" (involvingother forms of advantage, for example, giving advantage to a particularreligious or ideological position).

Pursuant to a Resolution of the Parliament agreed to on 27 November1990 significant "pecuniary interests" of Members of the LegislativeAssembly are subject to annual registration . Under Standing Order 158,a conflict of pecuniary interest disqualifies a Member of the LegislativeAssembly from voting on any question in which they have a directpecuniary interest. Any such conflict of interests is required to be thesubject of an appropriate declaration as and when it occurs, directly tothe Parliament.

Conflicts of interests disqualify a Member of a Local Authority fromvoting on any matter in which the Member has a pecuniary interest.Any such conflict of interests is required to be declared by the Member,as and when it occurs.

Registration of non-pecuniary interests is not required, because of thepotentially endless range of matters which could give rise to a conflictbetween private interests and public duty. A conflict of interestsinvolving a non-registrable interest is also required to be the subject ofan appropriate public declaration as and when it occurs (see previousparagraph).

Members shall declare any personal interest, pecuniary or otherwise,which conflicts or appears to conflict with their duty to act in the publicinterest whenever such a conflict arises and in relation to a context inwhich the Member is, or may be seen to be, acting in an officialcapacity. Such a declaration shall be made irrespective of whether theinterest at issue is already the subject of formal registration or hasalready been declared on another occasion.

Examples. Activities and relationships requiring specific attention byMembers under this obligation include -

(a) Being a member of or significant shareholder in, a company,association, or body which is involved with Government in anycapacity.

(b) Being significantly involved in the making of arecommendation or decision affecting the rights, entitlements,activities or prospects of a company, association, communitygroup, political organisation or other body with which theMember is associated in a private capacity or in which theMember has a significant interest.

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(c) Being significantly involved in the making of arecommendation or decision affecting the rights, entitlements,livelihood, prospects or employment of a relative, familymember, or close personal friend.

(d) Accepting or retaining any form of benefit, including a gift,offer of appointment, position, discount or consideration whichcould appear to be likely to influence a Member in theperformance of their official duty, whether it was intended toor not.

6.4 Declaration or Registration of Interests

Declaration. A Member shall immediately declare publicly any actual orapparent conflict between the requirements of official duty and anypersonal interest (whether a pecuniary interest or other form ofinterest), whenever such a conflict becomes known to the Member andirrespective of whether the interest involved is the subject of separateregistration.

Registration. A Member shall provide a summary of their significantbusiness, financial and other material interests, and those of theirspouse, dependent children and any other dependants, and thissummary will be entered in a register of pecuniary interests.

Such registrations of interests shall be made as often in the form and tothe extent required by the relevant authority. It shall be the Member'sresponsibility to maintain their entry in the Register in an up to dateform.

6.5 Acceptance of Gifts or Benefits

A Member shall not solicit or accept for personal benefit, any form ofbenefit whatsoever (eg. gifts, loans, discounts, considerations, etc.) inconnection with the performance of official duties, except as may beprovided:

(a) as part of their determined entitlements in accordance withtheir terms and conditions of remuneration as Members;

(b) by other public officials on the Member's resignation,retirement, or on similar occasions.

A Member may accept, in an official capacity, any gift or benefitprovided that the Member is satisfied in each instance that -

(a) acceptance of the benefit will not bring their integrity intoquestion; and

(b) acceptance of the gift or benefit is in the public interest.

Use or disposal of such gifts shall be in accordance with the proceduresdetermined by Parliament.

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7. GENERAL OBLIGATION 4: DILIGENCE

Members shall exercise due diligence , care and attention, and shall at alltimes seek to achieve the highest standards practicable in relation totheir duties and responsibilities in their official capacity as a Member ofthe Parliament or a Member of a Local Authority.

7.1 Diligence, Care and Attention

The obligation requires Members to recognise that they have a duty to return"a fair day's work for a fair day's pay", and that they are expected to performtheir public duties to the best of their ability.

8. GENERAL OBLIGATION 5: ECONOMY AND EFFICIENCY

Members shall avoid waste, abuse and extravagance in the provision oruse of public resources , and shall expose fraud and corruption of whichthe Member is aware.

This obligation requires Members to recognise that they have a duty to ensurethat taxpayer-provided resources of all kinds should be used economically forthe purposes for which they were provided and intended, treated withappropriate care and maintenance, and should be properly secured againsttheft or misuse.

In addition, this obligation requires Members to be economical, and to avoidwaste and extravagance in the use of the resources provided to them in theirofficial capacity.

9. SPECIAL REQUIREMENTS IN RELATION TO MINISTERS

Of all the positions of trust the people of Queensland are capable of bestowingon individuals, none carries so much discretionary power as that of a Ministerof the Crown. For this reason, Ministers accept that the standards required ofthem are higher than those which apply to other office bearers.

In addition to the obligations detailed in sections 4 to 8 above, Ministers aretherefore required to:

Resign or decline membership of boards of public companies anddeclare membership of, and the nature and business of, any privatecompanies.

Divest themselves of shareholdings in any company in respect ofwhich a conflict between public duty and private interests exists, orcould be reasonably suspected to exist. Ministers will advise thePremier should they find themselves in a situation of conflict ofinterests and shall take no part in any Cabinet deliberation inrelation to a matter involving such a conflict of interests.

Undertake not to use information obtained in the course of officialduties to gain for themselves or any other person a direct orindirect financial advantage. Refuse, and not solicit, anyconsideration or benefit in respect of their exercise of theirdiscretion, either for themselves or any other person.

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Refuse any gift offered in a personal capacity in connection withthe discharge of their office. Gifts in an official capacity may beaccepted in an official capacity by a Minister in accordance withprocedures established by the Premier from time to time.

Avoid falling under an obligation to those in business or industry; aMinister will not knowingly accept travel or hospitality sponsoredwholly or partly by any person, organisation, business or interestgroup unless the travel or hospitality is provided at rates which areopenly available to the public or is of nominal value, such that itcould not be construed as creating an obligation.

Accept that they must resign or stand down from their positions ifthey are themselves under formal investigation by any governmentinstrumentality in respect of serious impropriety or alleged illegalbehaviour of a serious nature.

Accept that they and the Departmental officials responsible tothem are bound by the caretaker convention. In particular, duringthe period after the issue of the writs for an election, the Ministersshould not, except in cases of urgency, make any new significantappointments, enter into new contracts or undertakings or embarkon any policy initiatives that would bind an incoming government.

Accept that the talents and abilities of all public officials should bemaximally available to the people of Queensland. Ministers shouldemploy the talents of public officials to their fullest, whatever thepolitics of those public officials may be, provided that those publicofficials observe the provisions of the relevant Code of Conduct, inparticular in relation to the Westminster convention of politicallynon-partisan public service. Where a Minister has concerns aboutany aspect of an individual appointed public official's performance,the Minister should raise the matter with the relevant ChiefExecutive and/or the Chair of the Public Sector ManagementCommission, as appropriate.