Australian Society of Archivists
1999 Conference
Public Sector Ethics in Queensland Since Fitzgerald
Earlier this month, the tenth anniversary of the presentation of the
Fitzgerald Inquiry Report to Parliament was celebrated. Back- in
1989,The Fitzgerald Report was seen by Premier Ahern as virtually "holy
writ", a bible for reform of public life in Queensland. It was,
he said, to be implemented "lock, stock and barrel". A
decade on, the Report is safely in the custodianship of archivists and
librarians, no longer the manual for reform, though its clear warning
to retain eternal vigilance against official corruption is as relevant
as ever. Implementation of that Report has been a major influence on
the changes in public administration on many fronts in Queensland. In
fact, on so many fronts that it would be folly of me to attempt to
analyse all the reforms that could be labelled as “ethics and
anti-corruption measures” instituted across a decade which has
seen five Premiers and government administrations. The editorial in
The Courier Mail on the anniversary of the Fitzgerald Report
summarised the achievements since Fitzgerald completed his work, in
the following terms:
Mr Fitzgerald's inquiry did not just lead to the prosecution of a
number of police and politicians (together with some underworld
figures). It also reshaped public life in Queensland. Following the
dismissal of the National Party at the December 1989 election, the
Goss government set about implementing the Fitzgerald prescription for
reform. Fair electoral laws produced boundaries drawn independently, a
Criminal Justice Commission set about reinventing the police service
and an Electoral and Administrative Review Commission started the
'still- unfinished creation of a proper public service and political
system, based on ethical standards. (The Courier Mail
3/7/99)
Queensland, which had lagged well behind other Australian
jurisdictions in administrative law reform and in the structure of its
public service, no longer does. The changes in the public sector are,
of course, not merely due to ethical concerns; in fact, other factors
(chiefly a concern for efficiency) have transformed the landscape of
public service through privatisation, corporatisation, contracting of
senior executive positions and the like. Yet, through all this,
primarily because of the work of the Fitzgerald inspired commissions,
the Criminal Justice Commission (CJC) and the Electoral and
Administrative Review Commission (EARC), there has been a consistent
attempt to develop transparency, accountability and ethical awareness
in Queensland public sector agencies.
In this paper the focus will be on initiatives emanating from EARC.
I will say virtually nothing about the CJC which, as a powerful
investigative standing commission, has had a chequered career, but is
undoubtedly mainly responsible for improvements in ethical standards
of the Police Service. At times its actions have been controversial
and, as Fitzgerald intended, it needs monitoring by its Parliamentary
Committee. Despite political opposition across the years, partly as a
result of recent changes coinciding with the Beattie regime, the role
of the CJC is now widely affirmed in the Queensland community and
remains essential in the fostering of an ethical public service.
Initially I will present an assessment of the implementation of the
Public Sector Ethics Act in Queensland, and follow- that
with brief comment on three associated issues:
- The so-called Heiner affair;
- Freedom of Information in practice; and
- Ethics in the Parliamentary sphere.
However, before I conclude these introductory remarks I want to
situate this conversation in a wider context, namely: the increasing,
international focus on ethics in professional and public life.
The applied and professional ethics industry (as it has been
uncharitably termed) is a feature of the nineties, around the world,
spawning new University programs, much literature, anti-corruption
commissions, ethics committees, numberless professional codes as well
as associations and bodies like Transparency International. In part,
it is a proper response to the truism of our times: "the human
capacity to determine what we can do (our technological capacity) has
outstripped our ability to decide what we ought to do (our sense of
the ethical if you like)". We are realising as we approach a new
millennium that, on too many fronts, our achievements are out of
kilter with the well being of the human community and life on earth
itself.
In the area of public and professional life, especially as that
affects the operation of governments, a specific ethics agenda has
emerged. So, bodies such as the Organisation of Economic Cooperation
and Development in conjunction with national government agencies (like
the Office of Government Ethics in the USA) are explicitly
establishing ethics benchmarks and an infrastructure to support this.
Of course the efficacy of all this, and the capacity of ethics regimes
to withstand other pressures, is not proven. But, my simple point here
is to establish the fact that the ethics initiatives in public
administration in Queensland, and in other Australian jurisdictions
(particularly in New South Wales and West Australia) are part of an
international trend. A profession such as your own is inevitably
caught up in this process. Your profession has much to contribute to
it, because, as guardians of the public record and history, you are
intrinsically involved in the cultivation of just and democratic civil
societies by supporting the integrity and accountability of public
institutions.
Back to the Queensland story. Fitzgerald recommended that among its
long list of tasks EARC should review the extremely limited Code of
Conduct for public officials adopted in the mid-1980s. The end result
of this process was the passage of the Public
Sector Ethics Act in 1994. Not all of the EARC Reports were
accepted. Some have been totally ignored like the four-volume
Administrative Review Tribunal Report submitted in EARC's dying days
and claimed by some to be EARC's greatest achievement. Queensland's
adoption of the Public Sector Ethics Act represents one of
the few examples in the world, 'of the enactment of specific
legislation for ethical conduct in public management. Of course, the
reform process led to other and earlier initiatives which aimed at the
establishment of a more ethical public service. Instances of this are:
the official misconduct provision of the CJC Act, equal employment
opportunity measures and judicial review. Then there was the parallel
passage of Whistleblowers Protection legislation.
The Public Sector Ethics Act states explicitly a set of
professional expectations as values to be socialised into the public
service. These are the five fundamental ethical obligations of the
Act:
- Respect for the law and the system of government;
- Respect for Persons;
- Integrity;
- Diligence;
- Economy and Efficiency.
These standards are not hierarchical and the legislation is
fundamentally aspirational. It does not create new ethics offences but
relies on other legislation including the Criminal Justice
Commission Act and the Public
Service Act to provide discipline and sanctions.
The legislation covers all public sector entities (including
Universities for instance but regrettably exempting government owned
corporations). It requires all agencies to develop agency-specific
codes of conduct and training in the codes. Chief Executive Officers
are responsible for the implementation of the Act and its subsequent
codes. The codes (as codes of conduct, that is, not simply
aspirational codes of ethics) are to be consistent with the five
fundamental obligations.
Five years after the Act's passage it can be reported that most (if
not all) required agencies have completed and published their codes
and many have instituted training. My assessment of the effectiveness
of this process is informed by research done by myself and Charles
Sampford of Griffith University in recent years assisted by Professor
David Corbett. David Corbett in his 1997 Research report rather kindly
summarised the implementation record as "mixed".
Some agencies have done a creative and complete job in the
development of their codes. Fewer have instituted worthwhile, ongoing
education and training. Some ground breaking work has emanated from
the Premiers Department, producing codes for ministerial and
opposition staffers. Also the Police Service continues to lift the
profile of ethics through its now established Ethical Standards
Commands.
However, the overall picture is disappointing. The approach has had
its critics, sometimes from Union or whistleblower sources. In
practice many agencies have been uncertain how to use their code. In
some glaring instances, such as the Department of Family and Community
Services (the Chuwar Affair) the conflict of interest provisions of
the code enshrined in the Act's principle of integrity have been
ignored at the highest levels.
Reading between the lines of Professor Corbett's report it is clear
that in too many cases the Act has been implemented in a perfunctory
way with minimal practical impact on agencies.
The explanation for this is undoubtedly multi-factoral. Government
agencies in the post-Fitzgerald era have been subject to constant
waves of reform, which were often experienced as onerous external
impositions. In terms of bureaucratic priorities, the ethics agenda
may have been regarded as just another reform to be endured by a
public service that until recently has been in turmoil, with turnover
rates of employees being in excess of thirty percent annually in some
departments.
However, a major reason for the lukewarm approach to implementation
of the Public Sector Ethics Act (certainly in the period
1995-97) was the failure of both the Goss and Borbidge governments to
provide proper resources for its implementation. The Goss
administration failed to follow EARC and its Parliamentary Committee's
recommendations for an independent Office of Public Sector Ethics.
This meant that there was no real ongoing coordination and monitoring
of the Act's implementation although there was loose networking across
agencies. It may be reasonably concluded that from this poor
resourcing gave a message to public sector managers and local
government that the Ethics Act and its associated measures are a low
priority,
In making this assessment I am not inferring that the Queensland
ethics regime has been a waste of time. Far from it, and this
conclusion is supported in Professor Corbett's report. What I am
saying is that what has been done overall is not enough and that the
approach must be augmented by further initiatives which are adequately
resourced. A "code of conduct" ethics driven regime always
was and certainly is too limited. For a start, it too easily becomes
focussed on the conduct of individual employees rather than on the
ethos of the public sector Organisation itself; when that happens
codes become managerial tools and the prior requirement of ethical
leadership from the top becomes sidelined.
The next stage of a public sector ethics regime in Queensland (and
elsewhere for that matter) needs to go beyond development and focus on
a strategic, comprehensive ethics program integrated into the good
governance policies and practices of each public administration unit.
Essential to that process is ongoing ethics education and training
from top to bottom with a special focus on ethical decision-making for
public officials. Allied to that, there must be some adequately
resourced and mandated coordinating office able to monitor and advise
on ethics across government. In my view, the West Australian public
sector through the West Australian Public Sector Standards Commission
is closer to best practice in this regard than Queensland is or is
likely to be.
Associated issues
Throughout virtually the entire decade since the Fitzgerald Report,
one public issue has simmered as a seemingly unending saga in
Queensland. It is generally known as "the Heiner affair",
taking that name from the retired magistrate who conducted the aborted
inquiry into irregularities (through the 1980s) at the government run
John Oxley Youth Detention Centre. It must be noted that this matter
was played out in the first months of the Goss government at a time
when there was no Public Sector Ethics Act, Whistleblower or Freedom
of Information legislation.
I cannot recount the chronology of this matter nor analyse it in any
depth here but I raise it because I understand it has been of
continuing interest to some members of the Australian Society of
Archivists.
That interest centres on the fact that the Queensland State
archivist in early 1990 agreed to the shredding of documents which
contained the evidence put to the Heiner inquiry. This involved
evidence, which some subsequently claimed, may have been important in
court proceedings defending the interests of a key player in the John
Oxley disputation. That shredding occurred after the matter had been
discussed in Cabinet by the Goss government, which resolved in favour
of the shredding option. The archivist then, presumably, acted
lawfully in agreeing to the shredding of public documents. Questions
remain however; was the law adequate, or was adequate advice taken
about the legal implications of shredding, and, in any event, were
there ethical, that is professional ethical considerations which might
have persuaded an archivist, acting in the public interest as a public
official, to challenge the cabinet determination to shred?
This is only one angle on the Heiner affair which, on any
interpretation, is a fertile case study in the ethical exercise of
public office involving a range of public officials and their capacity
to give frank and fearless advice. Having said this, as I have written
elsewhere, I do not favour any further inquiry into a matter that has
been looked at by several half-baked inquiries including a Senate
Committee hearing. Given the effluction of time, I see no public
virtue in apportioning blame to individuals for actions which, I
suspect, will not easily be repeated, especially given the public
accountability measures since put in place in Queensland plus the
embarrassment this matter has caused some in government, together with
the recent Forde Inquiry into child abuse at State Institutions.
Furthermore, as I have previously put on the public record, "there
is no evidence that any official profited personally or even
politically from this exercise or conspired to protect cronies".
(The Courier Mail 6/10/98).
Nonetheless, one important conclusion that must be drawn from the
Heiner affair shredding, a conclusion which I am led to believe has
support from this Society, is that the independence from government of
a State archivist should be statutorily ensured. The fundamental
reason for that (and this applies generally to professional ethics in
the public sector) lies in a proper understanding of the nature of the
office or role. In this case the office or role is that of a state
archivist, an office that arises from the public's right to know, and
the sacred guardianship of public documents which is a key democratic
principle.
Let's now turn to the second of these associated issues. A crucial
element in any regime of public accountability is the access to
government records that Freedom of Information (FOI) Legislation may
provide. The adoption of FOI is one of the legacies of Fitzgerald
through the EARC review process under the Goss government (the Act was
passed in 1992). However, there is reason for disquiet about the
practical operation of FOI in Queensland. In comparison with other
Australian jurisdictions, Queensland has the highest rate of FOI Act
refusals (De Maria 1999). In opposition, both the ALP and the
Coalition have been critical of amendments to FOI legislation, which
arguably have diminished its effectiveness. In Government, both sides
have failed to remedy the situation, although, currently, the
Parliamentary Legal Constitutional and Administrative Review Committee
is conducting a comprehensive review on the legislation.
The most contentious change was initiated by the Goss government to
exempt from FOI access to documents that have been part of Cabinet
submissions. This has led to the scandalous instance of documents
being wheeled into the cabinet room for the express purpose of
avoiding disclosure.
While Cabinet/Executive Council business requires confidentiality
and some level of secrecy, albeit for a limited time, the exemption
clauses now in this legislation are too broad. They place too many
limits on access. Cabinet/Executive Council are effectively
quarantined from FOI. Moreover, the executive branch of government can
use FOI to exempt documentation that should be accessible. Anecdotal
reports of a recent Queensland Government "manufacturing"
reasons for bringing documentation under the auspice of Cabinet simply
to make it exempt from FOI scrutiny is a scenario which offends
against the spirit of legislation. This breeds cynicism about the
political process in the community and must be avoided.
The 1997-98 Information Commissioner's Annual Report made a clear
statement about this:
With respect the amendments to s.36 and s.37 (made in 1993
and 1995), I have expressed in previous annual reports the view that
those amendments exceed the bounds of what is necessary to protect the
traditional concepts of collective ministerial responsibility (and its
corresponding need for Cabinet secrecy) to such an extent that they
are antithetical to the achievement of the professed aims of the FOI
Act, i.e. to promote openness, accountability, and informed public
participation in the processes of Government (page 14).
The Commissioner noted the concern that the legislation now gives
scope for the manufacture of an exemption claim by giving blanket
exemption to documents before Cabinet or Executive Council, even for
documents that were not prepared for the purpose of submission to
Cabinet or Executive Council, and indeed even for documents which have
previously been published.
Those who jealously protect the public's right to know and the
sacred guardianship of public documents would, I expect, support the
Information Commissioner’s concerns and desire to remedy this
matter.
There is a further dimension of public sector ethical reform that
should at least be noted. Many argue, quite properly I believe, that
leadership in ethical performance is essential in our institutional
life. In the public sector, the credibility of measures to encourage
ethical conduct amongst unelected officials will rest, in a large
measure, on the example of elected officials, not just Cabinet
Ministers but all members of the Parliament. This fact was recognised
by Fitzgerald and emphasised in the EARC Report reviewing Codes of
Conduct for public officials. That Report's recommendation,
subsequently endorsed by the Parliamentary EARC Committee, was for the
development of a Code of Conduct for Members of the Queensland
Parliament; five years later no code has been adopted. However, in
1995 a Parliamentary Ethics and Privileges Committee was established
in the Queensland Parliament - a direct result of the Fitzgerald
reforms. This committee was given the task of preparing a Code for
Parliamentarians. In July 1998, the Committee published a draft Code
for members - a Code that, in my opinion, would be a worthwhile
contribution especially if it were accompanied by significant
education in ethics for Members of Parliament and ancilliary advisory
services. The sad fact is that twelve months later, after a new
Committee took charge, the present Ethics Committee has not finalised
its work and the Parliament has not debated a Code (though I am
assured by the Committee Chair that day is not too far away).
Enhancement of the capacity of Parliament to scrutinise executive
government in a state which has no Upper House or House of Review, was
one of the implied concerns of Fitzgerald who was fundamentally
critical of an unaccountable executive government. So, out of the EARC
review process came firm recommendations about expanding the number
and role of Parliamentary Committees.
The activity of Parliamentary Committees has been a positive feature
recently in Queensland parliamentary reform. Another initiative of
this order was the establishment in 1990 of a Pecuniary Interests
Register for Queensland Members of Parliament which has this year been
improved, with belated amendments, adopting an Ethics Committee Report
which sat around for three years. These developments represent
movement in the right direction, though it is far from clear how
conscious the average Member of Parliament is of ethical
responsibilities; certainly confusion about conflicts of interest
still surface from time to time.
Perhaps the most important ethics infrastructure initiative in the
past ten years affecting Parliamentarians and Executive Government is
the plan of the Beattie Government to institute the Office of
Integrity Commission. Amendments to the Public Sector Ethics Act are
before State Parliament to create this position. The result hopefully
will be to create an office which should enhance an official focus on
ethics concerns with special reference to Ministers, senior public
officials, and government members of Parliamentary Committees. The
powers of this office will not include investigation or sanctions but
be primarily advisory and of an ongoing educative nature.
Notwithstanding this, providing the role has the active support of the
Premier's office, the Queensland Integrity Commissioner is potentially
one of the most significant developments in public sector ethics in
any Australian jurisdiction. (Certainly it is the kind of office that
might have saved the Howard government its many ethics
embarrassments.)
Conclusion
Now, to bring this overview to a conclusion. I hope that the story I
have told - laced as it is with plenty of criticism - has
unambiguously pointed to the fact that Queensland has undergone
worthwhile public sector reform and has a much more ethical government
than it had a decade ago. At the same time, the reformation is not
over, nor will it ever really be. Attempts to implement a public
sector ethics program remain easily derailed by two omnipresent
tendencies in practical politics: firstly, the temptation to
politicise ethics i.e., for political opponents or even administrative
rivals to use ethical issues to score short-term political gain and,
with that, to focus on individual conduct rather than focus on the
overall ethical improvement of the system of government; and secondly,
because politics and public administration, in a media dominated
society especially, is so fixated on "appearance" and "perceptions",
there is a temptation to see ethics initiatives as an exercise in
public relations or image-making. Where these tendencies prevail, a
public sector ethics regime is likely to be subverted and treated in a
minimalist and perfunctory manner as just another fad to be appeased
(and this is a considerable factor though I only give it a passing
mention).
Moreover, the struggle to find appropriate democratic institutions
where those in power are not easily seduced into exercising that power
unaccountably remains. The struggle is even more intense in a
globalised economy.
As citizens and, for some of us, as public officials, it remains
timely to heed the warning of one of the most respected public
officials of the twentieth century, Dag Hammersjold, former United
Nations Secretary-General, "Only they deserve power who justify
its use daily". I wish you well as professionals in the
cultivation of the art of justification in an ethical sense.
Further references
Corbett, D C (1997) Institutionalising Ethics: the Queensland
Case, unpublished report.
De Maria, W (1999) ‘Revealing State Secrets’, The
Courier Mail, April 12, p.1 3.
Preston, N (ed) (1994) Ethics for the Public Sector, Education
and Training, Federation Press.
Sampford, C, Preston, N and Bois, C-A (eds) (1998) Public
Sector Ethics: Finding and Implementing Values, Federation Press.
Also,
Preston, N. Courier Mail feature articles 3 March, 1998;
10 October, 1998. |
