What moralities do Members of Parliament owe to the public and the public interest? How can these obligations be enforced?
This is not an idle wonder. It sprung into my mind like a many-headed hydra in the wake of comments by the newly declared the winner of the Lower House seat of Fairfax – the garrulous mining magnate and billionaire businessman, Clive Palmer.
According to Wikipedia, Palmer owns Mineralogy, Waratah Coal, Queensland Nickel at Townsville, Palmer Coolum Resort on the Sunshine Coast, Palmer Sea Reef Golf Course at Port Douglas, Palmer Colonial Golf Course at Robina, and the Palmer Gold Coast Golf Course, also at Robina. He’s got plans to work with CSC Jinling Shipyard to construct a replica of RMS Titanic in China.
When a journalist asked Palmer about the potential for conflicts between his business leadership positions and his sworn duty to serve the public interest as an MP, he was dismissive:
“Well, that’s just rubbish of course. As a Member of Parliament, you don’t have a conflict of interest – only if you’re a minister.”
Palmer is wrong. Members of parliament do experience conflicts of interest. Any parliamentarian who has material interests, friends and family or roles outside of the Parliament can find these conflicting with their sworn duty to serve the public.
There’s no crime in having a conflict of interest. Indeed, it’s a near certainty that those who serve the public interest are likely to find themselves facing an actual, potential or perceived conflict at some point.
Ethical issues only arise where the conflict is not acknowledged and properly managed. Ministers, MPs, judges, police officers, directors of public entities or members of public boards are among those who can find themselves faced with a conflict of interest or a conflict of duty. Once identified, they must act to protect the public either by removing themselves, restricting their involvement (for instance, participating in a debate but not a vote), relinquishing the interest giving rise to the conflict, or resigning from public office all together.
Palmer’s response to journalist questions on conflict suggested he wrongly believed that if he admitted the conflict, he’d be forced to limit or quit his new role. In fact, it is nearly always sufficient for a conflicted public official to remove him or herself from decision-making on the matter. For example, if the carbon tax is repealed retrospectively as Palmer has demanded of the Prime Minister, this would cancel Palmer’s Queensland company Nickel’s unpaid debt of $6.2 million to the Clean Energy Regulator. Palmer should remove himself from the debate and vote on the tax.
But sadly, Palmer is right about one thing – the absence of a legislated, enforceable code of conduct for Australian MPs and Senators. Indeed, even the Ministerial Code he believes has sway is informal, carrying neither the force of law or regulation. It’s also unenforceable and able to be altered, amended, interpreted or eliminated by the Prime Minister of the day.
This is not to say that Parliament doesn’t deploy any means of managing the actual, potential and perceived conflicts of its members. It does through an interest register that lists parliamentarians' pecuniary, occupational and other interests.
Faced with someone like Palmer, it’s hard to see that this will be enough. Such registers work on the belief that sunlight is the best disinfectant, and all that is necessary to deter MPs from deploying their influence in matters where they are conflicted is the knowledge that they could be named and shamed. But disclosure it no deterrent if those being exposed to public scrutiny are convinced they should be exempt from the rules governing others, or that they have done nothing wrong.
The truth is that vigilance and disclosure is a necessary but insufficient step to ensure those we elect are serving our interests, not their own. Withdrawal from key debates and votes may also be necessary to manage conflicts. Passing a law that guarantees vigilance and effective management of conflicts, rather than leaving it up to MPs to comprehend and manage the issue themselves, would be the first step of a parliament truly accountable to the public.
Sunshine isn't always the best disinfectant ABC Online The Drum