Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

I move:

That this House:

(1) endorses the draft code of conduct at Appendix 5 of the report of the House of Representatives Standing Committee of Privileges and Members’ Interests, Draft Code of Conduct for Members of Parliament; and

(2) requests the Leader of the House to bring forward urgently for the House’s consideration the proposed changes to standing orders and resolutions of the House necessary to give effect to the code, procedures for considering complaints under the code, and for the role of the Standing Committee of Privileges and Members’ Interests in oversight of the code.

This code of conduct was agreed upon in 2010 by all parties and was point 19 in the Agreement for a better Parliament. There it is identified that:

A cross-party working group and inquiry process will be established to draft a code of conduct for members of the House and the Senate. Once established, this code will be overseen by the Privileges Committee.

I hope we all agree, and we did agree at the time, that this code is not the whole answer to better standards; but it remains one component and therefore, as that one component, has value. It is a document of wide principles rather than a prescriptive document. It is true that it can be criticised as 'stating the bleeding obvious' but sometimes, like now, stating the bleeding obvious is necessary.

The code of conduct is a reference point and reminder for all MPs, prior to any acts or omissions, of what basic and broad principles are expected. It is also a reference point and provides guidance for all MPs when a fellow MP is behaving outside these stated broad principles and values. This is not to overstate the ability of this code of conduct to deliver in isolation: I also accept the criticism that this code of conduct lacks sanctions and that it is not prescriptive in what we do when someone is in breach of the code of conduct itself.

In my view this is not to be answered today and should not be answered by the equivalent of a code of conduct 'Crimes Act'. Rather, over time, this will be answered by precedent, the collective will of MPs as to how they want to use the code and, ultimately, by the Privileges Committee. The danger in any of this is not that there are not appropriate sanctions attached; it is any loss of the tripartisanship that has been expressed to date and the attempt of any group of MPs to rip it down and ignore it. If that is allowed to occur, rest assured that the destroyer or destroyers will succeed and this code will effectively mean nothing. If, however, cross-parliament support for the code of conduct remains, and there is an investment by all in the status of the code, then its place will be one of value and the issue of sanctions will largely look after itself. It is appropriate that the privileges committees and parliaments of the future determine penalties and sanctions dependent on the context of the issues at that time. Neither I nor any member in this place can answer the questions of the future now; I can only encourage the opportunity to be grabbed right now and this code of conduct—a broad document of guidance and reference—implemented.

If a code of conduct is good enough for most sporting and volunteer organisations, most businesses, most parliaments and the ministerial wing then it is surely not too much to ask that one be implemented for Australia's politicians. It will not answer all issues or improve all behaviour but it may help. We never really know the true worth of documents like codes of conduct but who knows: late one night, when an MP is weighing up what to do on some matter, that MP may refer to the code to help shape their thoughts, and that is where the worth of this document lies. If it plays that role—nothing more and nothing less—than it has served a purpose. I therefore put the code of conduct to the House for support.

John Murphy (Reid, Australian Labor Party) Share this | Link to this | Hansard source

Is the motion seconded?

Melissa Parke (Fremantle, Australian Labor Party) Share this | Link to this | Hansard source

I second the motion. I thank the member for Lyne for his motion. It seems that once again, when it comes to ethics and standards of conduct in Australian public life, we live in interesting times. We are once again debating both the ethical standards which should be observed by members of parliament and the mechanisms by which such standards might be expressed and, where necessary, enforced. Once again, debate over the possible role and scope of a code of conduct for members of this House remains a primary focus of attention and opinion. Indeed, the discussion paper published by the House of Representatives Standing Committee on Privileges and Members' Interests has identified the potential which a properly developed code holds for reinforcing public trust in the institution of parliament by addressing community concerns about standards in public life. The committee noted in particular that a code would serve as a reminder to members of the political trust that they owe to their constituents.

Over the last five years we have seen the emergence of new or stronger codes for participants in international cricket, AFL, rugby and many other sporting codes, as well as for the members and fans of related sporting clubs. Schools, universities, churches, service providers, the professions and large numbers of private sector and non-profit organisations all now promulgate codes where once there was nothing to guide conduct except community standards and the law. Ministers in this government have been subject to new and enforceable ethics standards since 2007. In short, effective codes of conduct, and ethics standards bodies to enforce them, are now so commonplace that it might seem that we have been living through a code of conduct-led recovery; yet we have the Leader of the Opposition suggesting that a code of conduct for members is unnecessary because no member of parliament should need to be told that fraud, theft and sexual harassment are wrong. This quite misses the point about the value of codes generally and the value of a code of conduct for members of parliament in particular.

What is at issue here is not a member's personal moral creed or their compliance with criminal law, but the ethical obligations owed by a member to a community as a consequence of being entrusted with public office. The relevant test of conduct in the context of the parliament is not whether the member is a fit and proper person to hold elected public office—that is a question for the member's electorate—but whether their conduct enhances or undermines the democratic values and integrity of the institution of parliament. This latter question is properly one for the parliament itself.

Other commentators have suggested that codes are ineffective in preventing bad behaviour. No code can provide guidance for every possible situation or dilemma which might arise. Codes are not self-implementing or self-enforcing; if a code does not work in practice it is almost always because it has been badly devised, written, explained or implemented—and sometimes all four. Codes work, or do not work, at several levels. Ideally, a code provides public assurance that some form of standard exists. A code provides information to the ethically ignorant and a guide to sound decision making for the ethically perplexed. A code establishes a clear basis for assessing the extent of an individual's compliance with the code's requirements. A code provides a legal basis for enforcement. A code provides a clear set of criteria for defending charges or allegations brought under the code and a sound foundation for decision making in relation to what the public interest and public trust require in a particular case. So it is timely that this House is able to consider the discussion paper, published by the House of Representatives Standing Committee of Privileges and Members' Interests in November last year. While I welcome the paper's positive discussion on a broad values based code, the draft code would, in my view, benefit from further close attention to a number of significant matters.

For instance, is the code an aspirational or a prescriptive and enforceable document, containing as it does elements of both? The draft code also contains numerous terms that are undefined and potentially open to dispute as to their meaning and application.

For example, clause 1 of the key principles states that members 'must be loyal to Australia and its people'. For a member of the Australian Defence Force such an aspirational statement can provide meaningful guidance, based on the particular context on which it is intended to be applied, especially in time of war. But the same notion of loyalty provides no similar guidance to an elected official for whom what is in Australia's best interests is precisely what may be disputed.

There is also some contradiction and inconsistency in the paper's attempt to make a distinction between purely personal conduct and conduct in an MP's official capacity. The paper asserts that any code should not be concerned purely with an MP's private conduct and yet the draft code states at key principle 6 'Personal Conduct':

Members must ensure that their personal conduct is consistent with the dignity of the Parliament. They should act at all times in a manner which will tend to maintain and strengthen the public’s trust and confidence in the integrity of the Parliament and its Members.

Overall, as I have indicated, the draft code of conduct is a positive development, which I support, but one that needs more work to make it effective.

Debate interrupted.