by Colleen Lewis
There cannot be a more important office or more challenging role than being a member of parliament. This is especially so for government MPs and ministers, including the newly elected Victorian ministry sworn in on Thursday. As former federal Liberal minister Fred Chaney has explained, all persons elected to parliament bring with them values, loyalties and obligations to self, family and other supporters, and their parties, but also obligations to people in their electorate and the state – not to mention personal political ambitions and the pursuit of power. Much of the time, two or more of them will be in conflict.
Cabinet ministers have to add to the mix their loyalty and confidentiality obligations. Chaney observed that most decisions of policy that MPs and cabinet ministers must make involve issues for which there are competing solutions, none perfect, which will affect members of the community differently.
Chaney advised that the guiding principle to resolve conflicts must be what is in the public interest.
Public office is a public trust
The oaths politicians take as MPs and ministers commit them to compliance with the law but give little guidance. Guidance from the law can be found in a principle of law and ethics, which states that public office is a public trust. Regrettably, that principle has been largely forgotten.
Victorian MPs and ministers are covered by two codes of conduct. However, these focus on specific issues of conflicts of interest between their personal financial interests and public duties and roles in parliament and government.
Guidance could be found in the current benchmark for codes, the Commonwealth Standards of Ministerial Ethics, initially published by former prime minister Kevin Rudd. The code begins by stating:
1.1. The ethical standards required of Ministers in Australia’s system of government reflect the fact that, as holders of public office, Ministers are entrusted with considerable privilege and wide discretionary power.
1.2. In recognition that public office is a public trust, therefore, the people of Australia are entitled to expect that, as a matter of principle, Ministers will act with due regard for integrity, fairness, accountability, responsibility and the public interest, as required by these Standards.
While expressly based on the public trust principle, it does not appear to have revived that principle in the consciousness of those in government or the community.
When we entrust people with power over our lives, that power should be exercised in our interests; that obligation must always prevail over the interests of the people given the power. This is what the law recognises as a fiduciary relationship.
It follows that when a minister is making a decision and the common good of the people requires one decision, but his or her personal or political loyalties and future require a different decision, he or she must always give priority to the common good.
An ancient principle fallen into disrepair
This is not a new principle. It goes back to Plato.
About 100 years ago, that proposition that “public office is a public trust” was regularly used in public discussion of government and parliamentarians’ actions. It is not a metaphor: it is a fundamental ethical principle and a principle of the common law of Australia.
Former High Court chief justice Sir Gerard Brennan explained:
It has long been an established legal principle that a member of Parliament holds ‘a fiduciary relation towards the public’ and ‘undertakes and has imposed upon him a public duty and a public trust’. The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by, the interests of the trustee.
Sir Gerard acknowledged that:
… the fiduciary duties of political officers are often impossible to enforce judicially – the motivations for political action are often complex – but that does not negate the fiduciary nature of political duty.
Sir Gerard’s conclusion left little room for doubt about the obligations of public trust:
Power, whether legislative or executive, is reposed in members of the Parliament by the public for exercise in the interests of the public and not primarily for the interests of members or the parties to which they belong. The cry ‘whatever it takes’ is not consistent with the performance of fiduciary duty.
The courts have applied the legal principle in other areas. These include legality of contracts, common law criminal offences and the sentencing of convicted offenders whose offence involved a breach of their public trust obligations.
The courts have also applied the principle when interpreting legislation that gives discretionary statutory powers to ministers. The courts have held that such powers are “conferred as it were upon trusts”. They are to be exercised in the public interest to promote and not defeat or frustrate the objects of the legislation.
Court action can be taken to challenge the exercise of such powers relying upon the legal principle that public office is a public trust. One example is the powers held by planning ministers to intervenein planning applications.
Issue of integrity affects all policy
In the area of open and accountable government our public trustees – both elected and appointed public servants – inevitably have to deal with a conflict of interest arising from their obligation to give priority to the public interest over their personal and political interests. This is an area of policy that affects how all other policy areas are addressed.
Open and accountable government is critical to the operation of our democracy. If provided, it would also result in better government for the whole community, reduce opportunities for corruption of government and significantly help economic growth. In late 2013, British Prime Minister David Cameron said:
… the best way to ensure that an economy delivers long-term success, and that success is felt by all of its people, is to have it overseen by political institutions in which everyone can share. Where governments are the servants of the people, not the masters. Where close tabs are kept on the powerful and where the powerful are forced to act in the interests of the whole people, not a narrow clique.
He acknowledged that transparency in government is not easy, that it “brings risks”. The risks are personal for our public trustees. Giving priority to the public interest by strengthening open and accountable government requires moral courage.
Probably the best-known recent failure in the government integrity system in Victoria has been the creation of the Independent Broad-based Anti-corruption Commission (IBAC). If the creators of IBAC had been more aware of their obligations as public trustees, would the outcome have been different?
Would they have dealt with the conflict of interest they faced by including the community in the decision-making process, publishing draft legislation for discussion and involving relevant civil society groups in their deliberations? Instead, they lacked, at every critical stage, the benefit of input from the key stakeholders – the people of Victoria.
How do we all repair government?
The new Labor government made election commitments to strengthen the state’s integrity system. While their proposals, if carried out well, will make some important incremental improvements, much more could have been promised. For example, the government could replace our FOI legislation with the best-practice “Right to Know” approach of Queensland and refer the political funding of parties and candidates to the Joint Electoral Matters Committee for inquiry.
Again, did a failure to properly consider the public trust principle contribute to the shortcomings of what has been promised? If so, that can be easily rectified.
In his victory speech on election night, new Victorian premier spoke in terms that reflected the public trust principle when he identified two key objectives of his new government: serving the people and winning back their trust.
The government can win back people’s trust by demonstrating that it is serious about strengthening Victoria’s integrity system by implementing Australian best practice. There is no better way to serve the people and regain their trust than bringing them into the decision-making process on all integrity-related issues.
To change the culture to one that accepts and gives primacy to the public trust principle, it needs to become an accepted part of public discussion and expectation. Where does responsibility for this lie? The short answer is with us all: members of the community; the teaching professions; governments; parliaments and the media.
Ultimately, however, the buck stops with those who vote every four years. If we want our democracy to work as it should, we cannot afford to disengage from it. And if we continue our disengagement, we must accept ultimate responsibility for the failures of our democratic system.
Is there hope? The rise of these matters as a political issue in Victoria and at the national and international level suggest there is. Australia has made commitments under the UN Convention Against Corruption (UNCAC) and through the G20 and the Open Government Partnership.
And as Victor Hugo said:
All the forces in the world are not so powerful as an idea whose time has come.
The public trust principle’s time is here.
Adjunct Professor Colleen Lewis works at the National Centre for Australian Studies at Monash University.
This article has appeared in The Conversation.
Tim Smith QC was one of the authors of this article. He chairs the Accountability Round Table and is a former Supreme Court judge and former commissioner of the Australian Legal Reform Commission and Victorian Legal Reform Commission. More of his speeches and writing on this issue can be seen here.