Public Sector Ethics

Noel Preston, Charles Sampford, Noel Preston, Charles Sampford

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781134648023
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Politique

This study, with contributions from both scholars and practitioners, examines the theory and practice of public sector ethics across a broad range of environments.

PART I

FINDING VALUES

1

PUBLIC SECTOR ETHICS

Prospects and Challenges

Tom Sherman

INTRODUCTION

The recognition and exposition of ethics in the public sector have made considerable progress in the last decade. Whether or not this has produced higher standards of ethical conduct in public administration is harder to measure. Progress is also evident in the private sector, both in the business and professional areas.

It is equally difficult to assess progress at the political level.¹ For example, a code of conduct for federal members of the Australian parliament and their staff was recommended in 1978 by the Report of the Committee of Inquiry into Public Duty and Private Interest (the Bowen Report) (Bowen, 1979). Although registers of interests have now been established in the House of Representatives and the Senate, no general code of ethics has been established applying to all members of parliament. A similar situation applies in most of Australia’s State and Territory legislatures.²

Australian Prime Minister Howard’s Guide on Key Elements of Ministerial Responsibility (April 1996) represents another evolution of a practice which commenced in 1983, whereby prime ministers advise their ministers of appropriate standards of conduct based on the recommendations in the Bowen Report (Office of the Prime Minister and Cabinet, 1996). These guidelines developed a sting very quickly. In October 1996, two members of the Howard Ministry resigned because of breaches of the guidelines relating to the holding of shares in companies in respect of which they had made favourable ministerial decisions. Subsequently, several others have followed suit for a variety of other reasons.

As attested to throughout this volume, these developments are not particular to Australia. However, they do demonstrate the growing concern with public sector ethics and developments which seek to address this concern.

This increased awareness of the importance of public sector ethics has several sources. First, there have been a number of inquiries into scandals in recent years which demonstrated a less than desirable state of affairs in public sector conduct. The cash for questions scandal in the-United Kingdom, the Gingrich and Wright affairs in the United States and the repeated prime ministerial corruption scandals in Japan are to name but a few. Notable among those in Australia were the Fitzgerald Report on police corruption and related matters in Queensland (1989) and the report of the WA Inc Royal Commission in Western Australia (1993).³ Both reports exposed quite high levels of official corruption in those jurisdictions. Such scandals diminish confidence in public administration and often have adverse electoral consequences for the governments perceived as responsible.

The recent Royal Commission into Police Corruption in New South Wales reinforces this trend. Further, the Independent Commission Against Corruption (ICAC) in New South Wales and the Criminal Justice Commission in Queensland (CJC) are now in the process of conducting inquiries into the conduct of ministers and officials in those States.

As elsewhere, there have also been a number of other inquiries and controversies in Australia over the last few decades which have examined allegations of improper conduct particularly by federal ministers. Examples of these are:

• the Finnane inquiry in 1979 in relation to dealings in Ian Sinclair’s family companies;

• the Senate Standing Committee on Finance and Government Operations inquiry in 1981 into the Australian Dairy Corporation and its Asian subsidiaries which examined Ian Sinclair’s involvement in the activities of the corporation and its subsidiaries;

• the Colour TV affair in 1982 involving conduct by Federal ministers John Moore and Michael MacKellar;

• the Combe-Ivanov affair where the Hope Royal Commission in 1983 found that federal minister Mick Young made improper or unauthorised disclosures of official information to journalists Eric Walsh and Rod Cameron; and

• the Black inquiry in 1984 into the Paddington Bear affair relating to the conduct of federal minister Mick Young concerning customs documentation.

In fairness to some of the ministers concerned, not all inquiries found that ministers engaged in improper conduct.⁴

These problems in relation to unethical conduct in the public sector demonstrate quite effectively that such behaviour occurs quite regularly and at all levels of government.

Another source of increased awareness of the need for proper standards of ethical conduct in the Australian public sector has arisen from the work of a number of bodies (in some cases, following on from inquiries such as those noted above) which has led to the establishment of frameworks and principles to encourage more ethical conduct. In Australia, such bodies include the Independent Commission Against Corruption, the Criminal Justice Commission and the Electoral and Administrative Review Commission (EARC) in Queensland, as well as the Commission on Government in Western Australia. More recently at the federal level, there has been the publication of a report on ethics in the Australian public service by the Management Advisory Board (Management Advisory Board, 1996).

The third source has been the growing public demand (expressed principally through the media) for more openness and accountability in public administration. The work of a number of academics has also contributed to this process (see, eg, Harman, 1994, p 8; Jackson and Smith, 1996 p23; Kernaghan, 1996; Mancuso, 1995; Rosenthal, 1996; and Thompson, 1995).

CORE ETHICAL VALUES

Increasingly, a number of jurisdictions have put in place codes or guidelines relating to ethical conduct particularly for public servants on both state/provincial and national levels. In some instances, those standards are finding expression in legislation.⁵

These codes and guidelines refer to a number of core ethical values to shape public sector conduct. What follows is a composite listing of the more common values included.⁶

• honesty and integrity

• impartiality

• respect for the law

• respect for persons

• diligence

• economy and efficiency

• responsiveness

• accountability

This listing is intended to be illustrative, not exhaustive. There are other values which might be added, such as ‘courage’ and ‘neutrality’. On the other hand, some may question the relevance of ‘economy and efficiency’ and ‘responsiveness’ in a statement of core ethical values.

Some of these tensions concerning which values are ‘essential’ go to the heart of the debate about the role of the public sector in a democratic society. There is a discernible trend in many countries at all levels of government to see the public sector increasingly as utterly loyal instruments of the government of the day. Proponents of this view would give greater emphasis to the values of ‘responsiveness’ and ‘economy and efficiency’.

Others would argue that the public sector has a more fundamental role than simply to serve the government of the day. They contend that public officials (including elected officials) are holders of a public trust and ethical values have to be considered in the context of the official’s ultimate objective to serve the public interest. Proponents of this view would give greater emphasis to values such as integrity and impartiality.

These views raise complex issues which cannot be further developed within the constraints of this single chapter. However, the tensions need to be recognised and accounted for when developing and implementing codes or guidelines for ethical conduct.

By way of comparison, it is worth noting the core principles developed by the Nolan Committee in its Report on Standards in Public Life in the United Kingdom (Committee on Standards in Public Life, 1995). The important work of this committee originated in the cash for parliamentary questions scandals in the UK Parliament in the early 1990s. The seven principles of public life developed by the Nolan Committee were:

• selflessness;

• integrity;

• objectivity;

• accountability;

• openness;

• honesty; and

• leadership.

These two lists of values illustrate the point that ethical values will vary from country to country and they will also vary between the categories of public officials to whom they are intended to apply. The Nolan Committee principles are intended to apply to members of the UK Parliament. The composite Australian list is drawn from codes and guidelines which apply principally to public servants. Nevertheless, it is significant that both lists contain the important values of integrity, honesty and accountability.

Support Mechanisms for Core Values

Before leaving the area of core ethical values, it is relevant to consider the negative side of these values which serves to emphasise their importance, Clearly, developing positive values aims to deter negative conduct, such as dishonesty, secretiveness, partiality, nepotism, unfairness and, at the base line, criminal conduct.

Yet it is generally recognised that the mere promulgation of legislative standards or codes and guidelines is not enough. They must be supplemented and supported by measures, legislative and otherwise, to create a climate where ethical conduct is more likely to prosper. Such measures can include:

• administrative law mechanisms, such as freedom of information and merits and judicial review of administrative decisions (see Douglas, Chapter 10);

• whistleblower protection legislation (see Taylor and Waghorne, Chapter 11);

• effective enforcement of the criminal law, particularly in the areas of serious misconduct and corruption;

• establishment of effective auditing and monitoring regimes; and

• training in, and systemic support of, the application of ethical standards (see Corbett, Chapter 12).

While measures such as these are in place in one form or another in many jurisdictions concerned with public sector ethics, the challenges for the future will be their continuous improvement in the light of experience and greater harmony amongst domestic jurisdictions, in the case of multilevel or federal states.

The issue of harmony has particular relevance to federal structures, where the unwillingness of some jurisdictions to implement reform has a debilitating and deleterious effect on the whole federation. Unitary systems of government generally do not have this problem. Once again, it is essential to bear in mind the particular institutional, cultural and social characteristics of a state and its public sector when developing and implementing a program of ethics (Mancuso (1998) specifically addresses the institutional element of the ethics formula).

Another important but often overlooked mechanism is that of training in ethics (see Corbett, Chapter 12; also see Preston, 1994). Formal training in ethics, both in educational institutions and as part of ‘on the job’ personal development training, is essential to fostering good ethical conduct. Unless ethical codes and guidelines are supported by appropriate training, they will quickly gather dust and lose vitality as well as relevance.

Another important aspect of ethical training is the example showed by leaders and managers to those for whom they are responsible. Training by example has two important aspects. First, there is the negative aspect. If leaders and senior managers are not themselves ethical, then their staff will quickly see ethical codes and guidelines as an essentially hypocritical exercise. Secondly, there is the positive aspect. Good managers who are seen to be ethical will have a much greater and lasting impact on ethical standards than any other form of training.⁷ It is not necessary for them to articulate core ethical values; simply demonstrating them by their own actions can inspire others to do the same. The power of the role model should not be overlooked, even in these cynical times.

It is also important that elected officials, such as ministers, lead by example. It makes little sense for public servants to try to conduct themselves ethically when their elected masters in many cases have not as yet developed their own ethical standards and where they have encounter difficulty in abiding by them.

International Mechanisms

There are of course some relevant developments at the international level. Notable amongst these are the 1991 Harare Declaration on Good Governance from the Commonwealth Heads of Government meeting in Harare, Zimbabwe and the 1995 Millbrook Commonwealth Action Programme, developed following the Harare Declaration. The Harare Declaration addresses democratic characteristics of good governance, such as respect for human rights, as well as the rule of law and the independence of the judiciary. The declaration also refers to the importance of just and honest government. The Millbrook Action Programme includes the development of an integrity in public office code. The Harare Declaration is particularly significant because it is an expression of political commitment at the highest level by 52 countries, covering a third of the world’s population.

International initiatives are particularly important because they reflect transnational standards. These initiatives will, in the context of the global village, influence developments in each country. The consequent challenge is for each nation to then make an effective contribution to these developments.⁸

THE CHALLENGES

The future for public sector ethics must be concerned with dealing with a number of significant challenges rather than with resting on past achievements. Systems change as do the players involved on both domestic and international levels and ethics structures must change with them to varying degrees.

The five principal challenges considered here are:

• the need to extend the application of ethical standards to other holders of public office, namely, ministers, parliamentarians, members of the judiciary and holders of statutory office;

• the growing politicisation of the public service;

• economic rationalism encompassing privatisation and commercialisation;

• arbitrariness in public sector appointments; and

• undue influence of interest groups in decision-making.

Before examining each challenge, two general points need to made clear. First, each challenge is a substantial topic in its own right and only some general observations that have relevance to public sector ethics can be made here. Secondly, describing these areas as challenges does not suggest that they are all necessarily undesirable developments. Rather, they constitute some potentially difficult issues for public sector ethics that must be worked through.

While many of the issues raised here are not easily solved, that shouldn’t be an impediment to discussing them. Indeed, we owe it to our forebears and future generations to keep them squarely on the agenda.

Extending Public Sector Ethics to Other Holders of Public Office

This proposal may not be palatable to many of our politicians. One of the paradoxes of the evolution of public sector ethics is that, while public servants are expected to observe the highest ethical standards, there doesn’t seem to be the same interest or progress in the development of ethical standards for ministers and other members of parliament. (See Preston et al (eds) (1998) on legislative codes of conduct.) Similar arguments could be put in relation to other important categories of public office, namely, members of the judiciary and statutory office holders.

Some may contend that it is unrealistic to expect politicians to observe ethical standards in their political activity because it is an inherently competitive business and politics is essentially about winning and holding office. I believe that this is an impoverished view of democracy. Politics should surely be pre-occupied with serving the public interest and delivering good government to the community. Ethical conduct is not an optional appendage to public office; it is an essential part of its exercise.

Further, it is generally recognised that the whole political process and those who participate in it are held in low regard in the community. The cynicism is well expressed in the old joke ‘Don’t tell Mum I’m a politician. She thinks I’m a piano player in a bordello’. There is a growing disillusionment in many countries with the standard of political conduct. Part of...