David Blunt AM was made a Member of the Order of Australia in the King's Birthday Honours
MEMBER OF THE ORDER OF AUSTRALIA (AM)
David Michael BLUNT AM
Parliament
For significant service to the Parliament of New South Wales.
Mr Blunt has been the Clerk of the Parliaments and Clerk of the Legislative Council at the Parliament of New South Wales since 2011.
• Why are parliamentarians seen to have so little of it?
• How do we address breaches integrity, and the damage this does to trust and confidence in parliamentarians and the Parliament?
Openness and accountability in the Westminster system
The evolution of the Westminster system, where the legislature has primacy, has led to high levels of accountability within a framework of responsible government. One element of accountability is the Parliament’s ability to provide independent scrutiny of the role of the executive
Many Westminster parliaments have implemented specific measures to ensure the accountability of the government of the day. Measures like:
• inquiries into government initiatives;
• budget estimates;
• the auditing of financial accounts;
• performance audits;
• standing commissions such as ICAC in NSW or the CMC in QLD;
• integrity agencies like ombudsmen;
• protection of integrity agencies by making them officers of the Parliament;
all provide additional scrutiny of government, and in particular the executive.
This demonstrated collective commitment to honesty and transparency in government, however, has not translated into improvements in the reputation of members of Parliament.
The reputation of parliamentarians
As politicians, we don’t expect to be universally loved – though it might be nice. This is not just about ethics. We do after all make decisions that affect people’s lives, in ways they don’t always agree with. Also, the dynamic of most Parliaments means that policy disagreements are often personalised, and presented as accusations of failures of competence or compassion – so we can be seen as petty and argumentative.
This is regrettable, but today I want to focus mainly on perceptions of integrity.
In the English-speaking world there are regular surveys of people’s perceptions of the ethics and honesty of various professions. Almost universally, the most trusted or perceived most ethical professions are considered to be nurses and other caring professions such as paramedics and doctors (see below).
While journalists and even public opinion pollsters bob around the middle, politicians continue to be bottom dwellers, along with real estate agents, advertising people and car salesmen.
Why, despite our collective fixation with separation of powers, rule of law, honesty in government, accountability in government, audits and setting up integrity of agencies, does parliamentarians’ own integrity get such a bashing?
Integrity means being complete, intact; with reference to persons, specifically having no moral defect. In positive terms, this means being principled, trustworthy, honest, and sincere. Integrity in public office is essential to ensure that all the democratic structures are not impaired or diminished by corruption or dishonesty, but remain trustworthy and trusted.
(This may be one reason parliamentarians are subject to more scrutiny than others: the risks of corruption are so much greater. Like Caesar’s wife, we have to be above suspicion.)
Our democratic structures are only as strong as the weakest link. If one branch of government is underperforming, the entire system can be undermined. If one arm of government is seen not to be behaving with integrity, then public confidence is undermined. That confidence can be undermined by the actions of individuals or groups within any arm of government: a judge or magistrate in the judicial arm; individual ministers or officials in the executive arm; or an individual parliamentarian in the legislative arm.
Well, how do parliamentarians undermine the reputation and integrity of the legislative arms?
Let me count the ways:
taking cash for questions;
sending questionable “selfies” to your mistress while being the chair of the parliamentary ethics committee;
using parliamentary privilege to deny using a corporate credit card to buy trips to brothels;
trying to circumvent electoral donation laws through slush funds; using parliamentary allowances for private purposes;
failing to list gifts on members’ statements of interests;
editing Cabinet minutes to say the opposite of what was agreed so as to provide a financial benefit to “mates”.
(These are all drawn from Australian cases. I am in no position to say whether other Parliaments are better or worse, but I suspect the problems – and the remedies – may be similar.)
Resurrecting the reputation of parliamentarians
Well we’ve covered some of the reasons why members’ reputation for integrity and trustworthiness is embarrassingly and consistently bad. So how do Parliaments improve their actual and perceived integrity?
Most of the issues above have emerged from large-scale star-chamber-style inquiries into parliamentary misconduct. Given that such problems exist among Parliamentarians, it is obviously better that they be revealed in this way than remaining hidden. However there are possible unsatisfactory outcomes:
• These enquiries, like the mills of God, grind slowly: the process is protracted, expensive and unedifying, and the outcomes distant and uncertain;
• The process is often politicised, as the accused’s party seeks to maintain their numbers and reputation, and their opponents to attack these, regardless of their merits;
• A quasi-judicial approach to onus/burden of proof, and the difficulty of obtaining evidence especially after years have passed – and witnesses may not be disinterested - means that there is a sense that cases where there is a finding of misconduct may be the tip of the iceberg;
• In consequence, parliamentarians have their reputations damaged by merely being involved in public hearings even when they are finally exonerated.
The overall approach might be summarised as “too much, too late” – and with too little certainty.
Instead of the big, showpiece commissions, it might be better it to focus on the more modest approaches that create a culture of integrity through every-day vigilance. In this area, it seems to me self-evident that prevention, if achievable, is better than cure, whether considered from the perspective of public finance, trust in Parliament or the integrity of the political process.
Parliamentarians need to be vigilant to avoid damaging the institution. We need to build a culture where even small lapses are not tolerated. Bending the rules, even the smallest ones, can lead to an environment where misconduct thrives.
In this mode, David Blunt in his paper at last year’s POCC, A Parliamentary Commissioner for Standards for New South Wales?, drew parallels between the ‘no broken window’ theory of crime prevention and having a mechanism for addressing minor breaches of the rules before they become big breaches. David said:
Arguments continue as to whether the implementation of the theory explains the rapid reduction in crime rates in New York and other major US cities during the 1990s. However recent European studies have also demonstrated that an orderly environment free of graffiti or litter influences ethical behaviour: it “fosters a sense of responsibility not so much by deterrence... as by the signalling of a social norm: this is the kind of place where people obey the rules.” A Parliamentary Commissioner for Standards that resolves more common minor infringements quickly and effectively may help create a parliamentary environment where more serious corruption is inhibited.1
This veritable tsunami of salacious evidence that has come since then from the NSW ICAC has only heightened the need to address the cultural dimension of parliamentary integrity.
A better approach
I agree with David that the better approach is the ‘no broken window’ model. This is the path taken by the ACT Legislative Assembly, through developing, adopting and refining a code of conduct.
The ACT Legislative Assembly has had a members’ code of conduct since 2005, and an ethics and integrity adviser since June 2008.
The Ethics and Integrity Adviser is appointed by the Speaker for the life of each Assembly, plus three months after each election, to allow for continuity. The current (and only) Ethics and Integrity Adviser has extensive public service, and legal experience in both the public sector and in private practice. After establishing and filling the position, the next logical step was to have the Adviser, as an independent apolitical expert, revisit the code of conduct.
During the term of the previous Speaker, the Assembly commissioned its Ethics and Integrity Adviser to review the members’ code of conduct, including looking at strengthening it. The review recommended that the Assembly:
• adopt an updated the Code of Conduct;
• re-affirm the Code at the beginning of each Assembly term; and
• appoint a Commissioner for Standards to inquire into reported breaches of the Code.
The content of this report was agreed to in 2013, and fully implemented in February 2014 with the appointment of the inaugural Commissioner for Standards, the Hon Ken Crispin QC, a former justice of the ACT Supreme Court and an eminent, scholarly lawyer.
1 Blunt, David, A Parliamentary Commissioner for Standards for New South Wales? - Paper presented at the 44th Presiding Officers & Clerks’ Conference Canberra, 1-4 July 2013. https://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/AParliamentaryCommissionerforStandardsforNe wSouthWales/$File/Paper+-+By+David+Blunt+- +A+Parliamentary+Commissioner+for+Standards+for+New+South+Wales.pdf
In accordance with the resolution2, the Commissioner of Standards is independent, and is responsible for investigating complaints referred by the Speaker (or in very limited circumstances the Deputy Speaker), including possible breaches of the members’ Code of Conduct3. The Commissioner is required to report any findings to the Standing Committee on Administration and Procedure, which will recommend action to the Assembly.
The newly appointed Commissioner for Standards is on a retainer, and is currently preparing protocols for the investigation of possible breaches of the code of conduct.
The Office of the Legislative Assembly has budgeted $40,000 in the first year and $20,000 annually thereafter to support the role of the Commissioner. The Assembly’s Standing Committee on Administration and Procedure will review these arrangements in 2016. If we can avoid ‘broken windows’ in the ACT, then I’d say that was money well spent.
Finally I’d like to say a word about temptation.
It seems to me that corruption often starts with quite small, almost trivial examples, often connected with misuse of allowances. We should discourage these through creating a climate of integrity, as I’ve said – but we should also think about designing allowance schemes so as to minimise temptation. Grey areas, like a blurring of the distinction between remuneration and allowances for specific purposes, or the somewhat artificial distinction between campaigning and what are seen as the “legitimate” activities of parliamentarians like, say, informing electors on issues, can help to create the impression that the rules are arbitrary and not to be taken seriously.
We all saw the tremendous damage done to the Mother of Parliaments as a result of the scandal over allowances for “second homes”. (As a Canberran, I’ve always thought it ironic that in the UK, MPs are paid an allowance for time spent out of London in their constituencies, whereas Australian MPs and Senators have to be compensated for putting up with Canberra!)
MPs were criticised for claiming for excessive or inappropriate expenditure (in one case, for moat cleaning!), for trivially small expenditure (in one case, a bath plug!) – as well as for claiming expenses for mortgages for houses they in fact owned outright, or didn’t live in.
I wonder whether those guilty of the more blatant frauds may have started off with dubious characterisations of expenses – and getting away with it?
In any case, it seems to me that a scheme that paid MPs a standard allowance, possibly based on the location of their constituency, would have avoided these scandals, which in some cases may have been a “gateway drug” for large-scale corruption and untold damage to the integrity of politics – as well as being at least as fair, and much cheaper to administer.
