chapter 1 introduction · 2012-08-14 · (chapter 10) specified matter 23 regulating government...

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Chapter 1Introduction

CHAPTER 1 INTRODUCTION

1.1 REPORT NO. 3

Report No. 3 presents the Commission on Government’s (COG) recommendations and thepublic response for Phase 3 of its inquiries, which include:

Specified Matter 7 State-Owned Companies(Chapters 2 and 3)

Ombudsman’s Jurisdiction(Chapter 4 and 5)

Specified Matter 10 Standards of Conduct(Chapters 6-8)

Specified Matter 14 Financial Independence of Parliament(Chapter 9)

Specified Matter 22 Caretaker Conventions(Chapter 10)

Specified Matter 23 Regulating Government Advertising and Travel(Chapter 11)

To give new readers general background information about COG and its inquiry approach,we repeat in this introduction most of the material appearing in the introduction to ReportNos. 1 and 2 released on 22 August and 6 December 1995, respectively.

1.2 THE COMMISSION ON GOVERNMENT

1.2.1 ESTABLISHMENT

The Commission on Government (COG) was established in response to a recommendationmade by the Royal Commission into Commercial Activities of Government and OtherMatters (WA Royal Commission). COG was to inquire into and report upon a range ofissues which had emerged during the WA Royal Commission’s investigations.

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Commission on Government Report No. 3April 1996

The Commission on Government Act was passed by the Western Australian Parliament in1994 and the Commission, comprising a full time chairperson and four part timecommissioners, was appointed in November 1994. The Commissioners are:

Mr J F Gregor (Chairperson)Mrs Anne ContiMr Reg Dawson AMDr Frank HarmanDr Campbell Sharman

The Commission is an independent body which can carry out its assignment in anymanner it thinks fit. However, it is answerable to a Parliamentary Committee for theadministration of its functions.

1.2.2 FUNCTION

The Commission’s function is to inquire into Specified Matters (Attachment 1), which arelisted as a schedule to the Act, and to report on them to Parliament and the Premier.

Additionally, the Commission may elect to inquire into any other matters it considersrelevant to preventing corrupt, illegal or improper conduct by public officials.

1.2.3 PUBLIC INVOLVEMENT AND OPENNESS

In conducting its inquiries, the Commission is required to consult and act openly. Allsubmissions made to the Commission are scanned by computer. Oral submissions andstatements made at seminars are transcribed and also scanned. All scanned materialimmediately becomes part of our public record. It can be viewed by any interested personat the Commission’s offices or by contacting any public library in Western Australia.

Those with modem-equipped computers can contact COG’s bulletin board on(09) 328 9608 and send messages to us using our Internet address: [email protected] discussion papers and reports published to date can be read on the Internet. Theaddress is http://www.wa.gov.au/cog/.

There is a public access computer terminal at COG headquarters and facilities to helppeople prepare written and oral submissions.

The Battye and Parliamentary Libraries have copies of the Commission’s computerdatabase with all current submissions and transcripts.

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1.3 THE CONDUCT OF THE INQUIRY

The Commission decided from the outset that a wide variety of measures should be takento ensure extensive public involvement. This was seen as critical to its success inachieving the tasks set by Parliament. The widest range of information and opinion shouldbe available to the Commission. There should be wide public understanding of theCommission’s task and the important matters under investigation. Without such publicunderstanding, the Commission’s ability to generate public debate on the critical issuesbefore it would be limited. The lasting value of the Commission’s work will be measuredby public awareness about the inquiry matters. Informed public debate on these mattersforms the basis for effective reform.

This commitment to broad public involvement has guided the Commission in theorganisation of its work and in the conduct of inquiries into each specified matter.

1.3.1 THE STAGES OF INQUIRY INTO EACH SPECIFIED MATTER

For each of the 24 Specified Matters there will be:

• A published discussion paper setting out the issues for consideration. Some mattersmay be combined into one paper. There are one-page key point summaries for eachpaper. The discussion papers and summaries are available at any public librarythroughout Western Australia.

• An announcement about the discussion paper and the scheduled date, time and venuefor public meetings and formal hearings for that matter.

• Direct mailing of discussion papers to people listed on the Commission’s database,who have expressed continuing interest in our inquiries.

• An invitation to the public to make written submissions.

• Encouragement of public debate through hearings, meetings and conferences. TheCommission and its staff participate in these seminars and conferences.

• Preparation and submission of a final report on the matter.

1.3.1.1 Involving the Public Throughout the State

The Commission has devoted considerable effort to a statewide public awarenesscampaign. The objects are to gain the broadest range of fact and opinion on the mattersunder investigation and to publicise the Commission’s work to enhance public awarenessof the issues. The campaign included extensive advertising in metropolitan and non-metropolitan newspapers at various stages during the inquiry and regular briefing of the

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news media. Public and private radio networks covering the entire State participatedactively, particularly in remote regions, to publicise the Commission and the issues underreview. The theme of such publicity was always focussed on the need for publicinvolvement. We drew attention to the opportunities for any person to gain informationfrom the Commission and to contribute to its inquiries.

The Commission prepared pamphlets for wide distribution summarising its role and thescope of its inquiries. There are also free background and discussion papers for anyonewho requests them by mail, facsimile or telephone. At the time of writing this Report, overtwo thousand names are on the Commission’s database for discussion paper distribution.

Given the size of the State and the population concentration in Perth, it was especiallyimportant to contact people living in non-metropolitan areas. In addition to holding publicmeetings in a number of regional centres (Table 1.1), the Commission wrote to every localcouncil in Western Australia, inviting them to make submissions and host public seminars.Advertisements were placed in every non-metropolitan newspaper throughout the State.People living in regional centres or in remote areas can call the Commission for the cost ofa local call on 1 800 622 054.

Table 1.1: Regional Seminars – Phase 3

ALBANY Date: Monday, 19 February 1996Time: 7pmVenue: Albany Town Hall

York StreetAlbany

BROOME Date: Wednesday, 7 February 1996Time: 5pmVenue: Broome Lotteries House

Cable Beach RoadBroome

BUNBURY Date: Wednesday, 31 January 1996Time: 7pmVenue: The Annexe, The Lighthouse Inn

Carrey StreetBunbury

DERBY Date: Thursday, 8 February 1996Time: 5pmVenue: Function Room, King Sound Resort Hotel

Loch StreetDerby

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GERALDTON Date: Wednesday 21 February 1996Time: 5.30pmVenue: Reception Room, Civic Centre

Cathedral AvenueGeraldton

KARRATHA Date: Thursday, 15 February 1996Time: 5pmVenue: Shire of Roebourne Council Chambers

Welcome RoadKarratha

MANJIMUP Date: Wednesday, 7 February 1996Time: 5.30pmVenue: Shire of Manjimup Council Chambers

Rose StreetManjimup

MERREDIN Date: Thursday, 15 February 1996Time: 5.30pmVenue: Shire of Merredin Council Chambers

110 Barrack StreetMerredin

MOORA Date: Thursday, 1 February 1996Time: 5.30pmVenue: Moora Community Recreation Centre

Robert StreetMoora

PORT HEDLAND Date: Wednesday, 14 February 1996Time: 5.30pmVenue: Town of Port Hedland Council Chambers

Civic CentreMcGregor StreetPort Hedland

1.3.1.2 Discussion Papers

We see discussion papers as a key element in encouraging public participation andcreating public awareness of the issues. Each paper deals with one or more SpecifiedMatters. The aim is to produce a concise survey of the issues associated with each matterand to give basic information on the topic, an indication of the current state of law andpractice in Western Australia, the likely points of debate and sources of further

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information. The discussion papers are short and designed for easy reading. Key issues arehighlighted. The papers are distributed without charge to any person or organizationrequesting them.

1.3.1.3 Public Meetings

We have found public meetings to be an effective way to involve the general public in ourinquiries and canvass a wide cross section of opinion. All public meetings were recordedand the proceedings transcribed on to our public database. The Commission’s professionalstaff participated in the meetings, responded to requests for further information andanalysed the transcripts of statements made by participants.

There were three Perth public meetings held in the Alexander Library Theatre, followedby the regional meetings listed in Table 1.1.

1.3.1.4 Submissions

Our main objective in issuing discussion papers and key point summary sheets is toencourage people and organizations to make written submissions to us about their viewson our inquiry matters. This approach proved successful, generating many submissions.These varied from one-page hand-written letters to extensive multi-page documents. In allcases, the submissions were analysed by our research staff and summarised. Everysubmission has a unique identifying number in our database. They can be read by anymember of the public and copies made if required. The Commission keeps a running indexof all submission numbers and the names of those who made them.

1.3.1.5 Hearings

The Commission held formal public hearings for the five Specified Matters and the StateOmbudsman’s jurisdiction considered in Phase 3 (Table 1.2). These took place in theHearing Room, 6th floor, May Holman Centre during December 1995 and January andFebruary 1996. Based on the quality and relevance of written submissions received, theCommission invited the authors to appear at hearings to amplify or explain theirsubmission and to allow us to ask questions of them. Again, all hearings were recorded,converted into transcripts and added to our public database.

The Commission has treated all information made available on its merits. Whethermaterial came from comments made orally at a public meeting, a written submission orpresentations made at a hearing, we assessed it for quality and relevance. If we believedmaterial to be pertinent and to illustrate issues we were considering, it has been includedin our Report, regardless of how it came to us. If the same point was made repeatedly bythe public, we have tried to use the most accurate and representative example quotation inour Report.

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1.3.1.6 Preparing the Report

The Commission gathered material from many sources, including published literature,interviews with appropriate experts and discussions with opinion leaders in thecommunity. This was added to information from the transcripts of public meetings, publichearings and written submissions. Our research staff, assisted by our legal advisers,conducted careful appraisals of existing statutes and the common law applicable to theinquiry matters. We collected and analysed relevant reports from previous committees ofinquiry dealing with or touching upon the issues involved with COG’s Specified Matters.All of this material was assembled, analysed and given due consideration in formulatingour conclusions and, in some cases, for inclusion as extracts in this Report.

1.4 PARLIAMENTARY COMMITTEE

The Commission on Government Act 1994 established a standing committee of Parliamentcomprising five members from each house. The Committee oversees COG’sadministration, approves the appointment of Commissioners, receives the Commission’sReports and acts as the link between the Commission and Parliament.

The Committee comprises:

Chairperson Mr Rob Johnson MLA

Legislative Council Hon. John Cowdell MLCHon. Barry House MLCHon. Murray Montgomery MLCHon. Mark Nevill MLCHon. Murray Nixon MLC

Legislative Assembly Dr Geoff Gallop MLAMr Larry Graham MLAMr Ian Osborne MLAMr Max Trenorden MLA

1.5 REPORTING

The Commission on Government Act 1994 requires the Commission to report to theParliamentary Committee and the Premier:

... at such time or times as it thinks expedient ... (s.7(1)).

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This Report is the third of five the Commission will produce. We decided soon afterstarting that there should be a report produced on each of the four phases and a fifthReport drawing together the findings of the previous four. Report No. 5 will also addressthe general question of preventing corrupt, illegal or improper conduct in the public sectorin this State, and constitutional issues.

1.5.1 THE STRUCTURE OF REPORT NO. 3

This Report presents the results of the Commission’s inquiries into five of the 24Specified Matters referred to us, and our inquiries into the State Ombudsman’s role. TheSpecified Matters are 7, 10, 14, 22 and 23.

The substantive issues raised by each Specified Matter are treated in a similar waythroughout, using the same repetitive headings. These are:

• Issues for Consideration: This section deals with the principles raised by the issueand, where appropriate, conflicting views about how to resolve the matter underdiscussion. It also considers such questions as the state of the law in WesternAustralia, the experience of other jurisdictions, and the opinions of relevant expertsand inquiries.

• Actions to Date: The Commission on Government Act 1994 requires the Commissionto consider whether a specified matter has already ‘... been addressed adequately bylegislative or administrative action ...’ (s.6(1)). This heading in the Report indicateswhether any such action has been taken. Generally, we refer only to actions takensince the reports of the WA Royal Commission were published.

• Public Submissions: This section summarises the range of views expressed byinterested organizations and members of the public in written submissions or atpublic meetings or hearings. Quotations are often used to illustrate the variety ofviews put to us.

• Analysis: In this section, we summarise the information and arguments relating to theissue under examination, provide a justification for our recommendations and stateour views.

• Recommendations: This section sets out the Commission’s recommendations for theissue under consideration.

Our recommendations appear in the body of the report next to the corresponding text.Additionally, all Phase 3 recommendations are listed at the beginning of this Report. Therecommendations made thus far in Report Nos. 1-3 are numbered in sequence so that eachhas a unique identifying number.

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1.5.2 RECOMMENDATIONS BEARING ON OTHER SPECIFIEDMATTERS

Many of the Specified Matters are linked because they raise common issues, or because arecommendation made for one could have a bearing on another. Whenever this occurs wehave noted the fact in the text and, in some cases deferred making a recommendation inthis Report until we have addressed a related Specified Matter in a later phase.

1.5.3 APPENDICES

Appendices contain references from published literature, relevant statutes, legal casescited and other data sources. Detailed references to quotations appearing in text aregrouped under the headings Submissions or Transcripts. These are listed alphabetically byname of the organization or person making the submission. Written submissions includethe file number of the document, while transcripts show the date and location of eachhearing or seminar.

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ATTACHMENT 1

SPECIFIED MATTERS

1. The secrecy laws of the State, both statutory and common law, as they apply toinformation possessed by government, its officials and agencies.

2. The operation of Cabinet secrecy.

3. The operation and adequacy of the Financial Administration and Audit Act 1985(particularly section 58C) with regard to providing Ministers, the Parliament and theAuditor General with access to all information held by, or relating to undertakings orcommitments of, organisations in the public sector.

4. The organisation, role and function of media secretaries of the government and itsagencies, and of the Government Media Office.

5. The functions and terms of reference of an Administrative Appeals Tribunal and itsrelationship to the respective roles of the judiciary and the executive.

6. The legislation governing the functions of the Auditor General with regard to theobligations of persons to answer any question put by the Auditor General and toproduce any relevant documents, notwithstanding that the answer or the informationmay result in or tend towards self-incrimination.

7. The necessity and framework for legislation governing monitoring, control andParliamentary scrutiny of State-owned companies, trading enterprises, partnershipsand statutory authorities.

8. The appointment of officers employed in the public sector to Boards andCommittees with particular reference to Recommendation 16 in Part II of the Reportof the Royal Commission.

9. The terms that would be appropriate for legislation to establish a separate andindependent archives authority for the State.

10. The standards of conduct expected of all public officials for the purposes of –

(a) their formulation in codes of conduct; and(b) determining what associated measures should be taken to facilitate adherence

to those standards.

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11. The legislative and other measure that should be taken –

(a) to facilitate the making and the investigation of whistleblowing complaints;(b) to establish appropriate and effective protections for whistleblowers; and(c) to accommodate any necessary protection for those against whom allegations

are made.

12. The registration of the pecuniary and other interests of members of Parliament,ministers, senior public servants, members and senior officers of statutory authoritiesand State-owned companies, and of other officials for whom registration in someform may be appropriate given their official responsibilities.

13. The appropriate role, powers and functions of the Official Corruption Commissionfor the prevention and exposure of impropriety or corruption within the public sectorwith consideration given to the respective roles of other agencies and legislation.

14. The most effective means of securing the financial independence of Parliament toundertake its business.

15. The electoral system for representation in the Legislative Council.

16. The electoral system for representation in the Legislative Assembly.

17. The means best suited to be adopted by Parliament to bring the entire public sectorunder its scrutiny and review, having regard particularly –

(a) to the use of parliamentary committees for the purpose;(b) to question time; and(c) to the manner in which the departments and agencies of government should be

required to report to Parliament.

18. The role of parliamentary committees on legislation including the accommodation ofthe right of the public to make representations on legislative measures referred toany such committee.

19. The operation of the Parliamentary Privileges Act 1891 with a view to permittingproceedings in Parliament to be questioned in a court or like place while preservingthe principle of free speech in Parliament.

20. The disclosure of political donations and contributions.

21. The disclosure of electoral expenditure, and such other measures relating to politicalfinance as may enhance the integrity of the system of representative government.

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22. The appropriate guidelines to be observed by caretaker governments in relation totheir conduct and management prior to elections.

23. The desirability of regulating –

(a) government advertising during an election period; and(b) travel by persons in or connected with the government during an election

period.

24. The adequacy of the processes by which the constitutional laws of the State may bechanged.

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CHAPTER 2 COMMERCIAL ACTIVITIES OFGOVERNMENT

2.1 SPECIFIED MATTER 7

Governments in western democracies have attempted to create conditions conducive toeconomic development and have engaged directly in business enterprises. During the1980s the Western Australian Government adopted a particularly entrepreneurial and highrisk stance. It entered into a variety of business deals, many of which did not have theapproval or prior knowledge of the Parliament or the public:

In the case of the provision of a $150,000,000 indemnity to National Australia Bank toassist the rescue of Rothwells in October 1987, Parliament was not consulted. In the caseof the Government’s decision to involve itself, through WA Government Holding’s Ltd.,with Bond Corporation in the Kwinana Petrochemical Project, the Government actedcompletely outside the purview of public scrutiny. The value of that project wasenhanced at least ten times its proper value to a figure of $4,000,000,000 by obligationsundertaken by the government including giving the Treasurer’s guarantee. (Barker,1993: 6)

As Sykes noted in his analysis of the entrepreneurial 1980s The Bold Riders: BehindAustralia’s Corporate Collapses:

The concept of WA Inc. was of a partnership in which businessmen would make moneyand the people of the state would benefit. The concept was defensible, but theimplementation ... was not ... The behaviour of governments and their instrumentalitieswas not a pretty sight. (1994: 140, 583)

Specified Matter 7 emerged from the concerns of the Royal Commission into CommercialActivities of Government and Other Matters (WA Royal Commission) about the mannerin which statutory authorities, state-owned companies, partnerships and trading enterpriseswere used during the WA Inc. years. The Specified Matter requires the Commission onGovernment to inquire into:

The necessity and framework for legislation governing monitoring, control andParliamentary scrutiny of State-owned companies, trading enterprises, partnerships andstatutory authorities.

The WA Royal Commission did not seek to prevent either the creation of statutoryauthorities and state-owned companies or their involvement in commercial activity. Itsimply said that governments should always operate in the full light of day if they wish touse such entities for commercial purposes:

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Chapter 2Commercial Activities of Government

The Government was entitled to pursue new goals. What it was not entitled to do was torisk the public resources of the State without its actions being subjected to criticalscrutiny and review. Effective accountability was a casualty of its entrepreneurial zeal.Influence in the conduct of this State’s public affairs was captured by a small group ofself-interested businessmen. (WA Royal Commission, 1992: I 6 27.2.9)

The term statutory authority describes any agency created by an Act of parliament. Forover a century, Australian governments have used statutory authorities to achieve theiradministrative, developmental, commercial and financial objectives. Although SpecifiedMatter 7 refers to statutory authorities, we believe that the WA Royal Commissionintended to only refer to the commercial statutory authorities of government and not thefull range of statutory authorities. Our inquiries have focussed on government incommerce and we have not inquired into the non-commercial activities of statutoryauthorities. Statutory authorities such as the Information Commissioner, theEnvironmental Protection Authority and the Disability Services Commission wereexcluded from our inquiries.

There have been many changes in the way government agencies engage in commercialactivities since the report of the WA Royal Commission. The SGIO was privatised in1994, and State Print’s commercial operations and BankWest were privatised in 1995. TheState Energy Commission of Western Australia has been split into three authorities,AlintaGas, Western Power and the Office of Energy. The Water Authority of WesternAustralia has been divided into the Water Corporation, the Office of Water Regulation andthe Water and Rivers Commission. Some agencies, including the Chemistry Centre, havebeen commercialised.

In 1995, the Council of Australian Governments (COAG) agreed to establish a nationalcompetition policy and to work co-operatively on competition issues. The NationalCompetition Policy can be broadly summarised as:

• the extension of the anti-competitive provisions of the Trade Practices Act 1974(Cwlth) (TPA) to state jurisdictions and state government commercial activities; and

• reforming state and local government commercial activities to introduce competitiveincentives similar to those which prevail in the private sector.

Two new bodies have been established:

• the Australian Competition and Consumer Commission (ACCC) – responsible forthe enforcement of the competition and consumer protection provision of the TradePractices Act 1974 (Cwlth) and making determinations under the access regime andprices surveillance; and

• the National Competition Council (NCC) – which may make recommendations onaccess and prices surveillance issues and give advice on matters including the extent

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to which the states and territories have complied with the provisions of the variousinter-governmental agreements.

2.2 FORMS OF COMMERCIAL ACTIVITY

For the purpose of this Report, the Commission has adopted the term commercialactivities to mean activities or transactions undertaken by any entity within the publicsector which, of their nature, bear a trading or commercial character. Commercialactivities or transactions can involve any public sector organization purchasing orsupplying goods or services.

It is an important function of government to provide to the public goods and serviceseither directly through its own agencies or indirectly through contracts with the privatesector. In some areas such as housing, transport, health and educational services there is amixture of goods and services provided to the public directly by government andindirectly through private sector contracts. In the provision of these goods and services,public sector agencies charge prices, collect revenue, contract, participate in variousmarkets and thereby engage in commercial activities. Commercial activities must bedistinguished from other government roles, including regulation of markets and providingsocial and human services such as police and corrective services.

The questions at issue are the appropriate extent of such activities in the public interest,the commercial risks which are reasonable for the public to bear collectively and how bestto avoid corrupt, illegal or improper behaviour by public officials in the process. ThisCommission is concerned only with the last of these.

The commercial activities of government are diverse and are carried out in a variety ofgovernment agencies (Figure 2.1). At the time of the WA Royal Commission there were anumber of state-owned companies. Now there is only one: the Western AustralianGovernment Holdings Ltd. (WAGH), which has ceased trading.

Commercial operations can also be carried out by statutory authorities, which can beeither non-corporatised (Fremantle Port Authority) or corporatised. AlintaGas andWestern Power are state-owned corporations, which means that they have been givencorporate status by the Parliament. Many public sector commercial activities are carriedout by non-corporatised statutory authorities and state-owned corporations. In WesternAustralia, such bodies which engage in commercial activities are referred to asgovernment trading enterprises (GTEs).

Some government departments also engage in commercial operations. The HealthDepartment has a commercial arm called the State Pathology Laboratories and Statehospitals treat private patients. The Department of Conservation and Land Managementparticipates in commercial timber operations.

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The government can also engage in commercial activities through joint arrangements withprivate sector organizations. We have adopted a wide interpretation of the wordpartnership mentioned in Specified Matter 7. We have taken it to embrace any existing orpotential cooperative arrangement between the state or local government and privatesector organizations. There are generally two types of arrangement falling within thiscategory: agreements between the State of Western Australia (signed by the Premier orrelevant minister on behalf of the State) and private sector organizations or agreementsbetween government agencies and private sector organizations.

Figure 2.1: Western Australia - Commercial Activities of Governmentby Type of Organization

Commercial Activities ofGovernment

State-OwnedCompanies

DepartmentalStatutoryBodies

(Commercial)

PartnershipArrangements

with Private Sector

Non-Corporatised

Corporatised

In Western Australia, the legislative regime governing the monitoring, control andparliamentary scrutiny of the commercial activities of government includes:

• The State Trading Concerns Act 1917 (STCA) applies, in part, to all governmentdepartments’ trading activities, as well as to ‘trading concerns’ that are either listedin the Schedule to the STCA or declared by Parliament to be subject to the STCA(s.4(1)). There are no agencies listed on Schedule 1 of the STCA.

• The State Supply Commission Act 1991, regulates the supply of goods and servicesto, and the disposal of goods on behalf of, public authorities. In accordance with s.17

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of the Act all public authorities (as defined in s.3 of the Act) are required to adhere tothe State Supply Commission’s supply policies.

• Agency-specific legislation, which creates agencies for specific purposes andprovides for their regulation, structure and powers (such as the Housing Act 1980).

• The Financial Administration and Audit Act 1985 (FAAA), which establishes anaccountability system applying to all departments and statutory authorities. Section 3of the FAAA defines a statutory authority as ‘a person or body specified inSchedule 1 [of the FAAA]’.

• The Corporations Law, which sets out a comprehensive national scheme regulatingcorporations. State-owned companies can be incorporated under this statute.

The WA Royal Commission recommended the enactment of a State Owned CompaniesAct (1992: II 3.14.8). In a number of Australasian jurisdictions, umbrella legislation hasbeen enacted. In Queensland, the State Owned Corporations Act 1993 provides for ‘thecorporatisation of nominated government entities and for related purposes’ (Long Title).Likewise, the State-Owned Enterprises Act 1986 (NZ), the State Owned Enterprises Act1992 (Vic.) and the Territory Owned Corporations Act 1990 (ACT) govern the manner inwhich businesses are conducted by government-owned bodies.

2.3 PUBLIC SECTOR REFORM

The growth in size, function and cost of government has led to the decentralisation ofgovernment operations. Emphasis has been placed on increasing the economy, efficiencyand effectiveness of service delivery. As a result, governments worldwide have movedaway from process-oriented practices, refocussing government activity on outcomes.Contracting out, commercialisation, corporatisation and privatisation activities are part ofthis reform process.

Contracting out refers to an arrangement whereby a government agency enters into acontract with an external supplier for the provision of goods and/or services. It is generallyassociated with competitive tendering, where bids are called for the supply of goods orservices and where the successful tenderer is selected on the basis of specified criteriasuch as cost and service quality (Commonwealth Industry Commission, 1995a). This isnot a new phenomenon but has traditionally been limited to goods and services supplied togovernment. It is now used for supplying government services directly to citizens.

Under the Government’s Competitive Tendering and Contracting (CTC) policy (Circularto Ministers Nos 46/93 and 46/94) the range of services subject to contracting out isincreasing. A January 1995 survey to identify the extent to which the CTC program hadbeen taken up by the Western Australian public sector found that ‘the Government had

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contracted out more than $360 million worth of contracts per year to the private sector’(Treasury, 1995: 81).

According to the Commonwealth Joint Committee of Public Accounts (CommonwealthJCPA) in its recently published detailed examination of the commercialisation of thefederal public sector:

... the term [commercialisation] is widely used to describe what happens whengovernments decide to allow their agencies to charge the public (or other agencies andentities) for the goods and services they produce, and to adopt, to varying degrees, otherfeatures of the commercial environment ... Typically, some, if not all, of the followingprivate sector management practices can be found in commercialised public sectoragencies:

• competition with private enterprise to supply the agency’s traditional clients;

• charging for all services with the objective of at least recovering costs and, insome cases, making a financial return to the Government;

• powers to reinvest or retain a proportion of any profits earned;

• recording costs and revenues on an accrual accounting basis;

• receiving government funding for those services that are deemed to be in thepublic interest; and

• establishing management structures and planning mechanisms typical of theprivate sector, such as boards, strategic planning and business plans. (1995: 1-2)

The Industry Commission has defined corporatisation as:

... the process ... [which] ... separates a [GTE] from the direct arm of government.Corporatisation does not necessarily involve ‘incorporation’ under corporationslegislation. The [GTE] is either constituted under the corporations law as a limitedliability company or as a statutory authority under its own legislation. Until recently,corporatisation in Australia has usually applied the statutory authority model. Thismodel entails giving the [GTE] a separate legal identity under an Act of Parliament.Each [GTE] is constituted under its own Act, although umbrella legislation may alsoseek to regulate some common aspects of [GTE] activity. (1994: 6)

The term privatisation refers to the sale of either a part or the whole of a government bodyto the private sector. Partial privatisation has not occurred in Western Australia.Elsewhere, governments have opted to partially privatise government bodies, as in thecase of the Commonwealth Bank. Likewise, in the United Kingdom the government hassometimes chosen to retain a fifty-one percent share of privatised organizations.

Privatisation is not relevant to our inquiries into Specified Matter 7. Decisions whether toprivatise state-owned enterprises are matters of government policy. Although the decision

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to privatise is a matter for the government, there should be measures to preventopportunities for corrupt or improper conduct in the privatisation process. Privatisationshould always take place in an open and transparent manner.

2.4 REVIEWS

Recent reviews have made strong recommendations about the way governments engage incommercial activities:

• the 1989 Commission on Accountability (Burt Commission);

• the 1992 Royal Commission into Commercial Activities of Government and OtherMatters (WA Royal Commission);

• the 1993 Energy Board of Review (Carnegie Committee);

• the 1993 Independent Commission to Review Public Sector Finances (McCarreyCommission);

• the 1993 National Competition Policy Review (Hilmer Committee); and

• the 1996 Western Australian Legislative Assembly Standing Committee on UniformLegislation and Intergovernmental Agreements’ (SCULIA) review of competitionpolicy.

The WA Royal Commission suggested that to prohibit government from engaging incommercial activity would offend democratic principles (1992: II 3.13.1). Nevertheless, itexpressed concern at the limited accountability measures contained in the State TradingConcerns Act 1917. It recommended the Act be repealed and replaced with a State-ownedCompanies Act. The Parliament was to be notified when a company is created or acquiredby a government-owned body and a central register of those companies was to bemaintained by the Auditor General. The WA Royal Commission also recommended thatboards of management of government-owned agencies be subject to the same standards ofprobity and integrity applicable in the private sector. To ensure accountability, theCommission recommended that all existing and future state-owned agencies be subject toaudit by the Auditor General and to the provisions of the FAAA (1992: II 3.14.10-20).

The Twelfth Report of SCULIA is an examination of the ‘history and development ofcompetition policy, and the legislative ramifications for the States, especially WesternAustralia, of the Hilmer proposals’ (1996: vii). SCULIA concluded that:

While there has been general consensus about the economic benefits of competitionpolicy, concerns have been raised that neither the Hilmer Report nor the Competition

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Law addresses adequately the delivery of community service obligations and thepromotion of non-commercial goals by government business enterprises. (1996: 75)

Amongst its recommendations, SCULIA suggested that:

• the Parliament be informed of all community service obligations (CSOs) deliveredby government business enterprises, and the costs associated with those CSOs;

• an industry-specific ombudsman be established to investigate and resolve complaintsabout the services provided by each state-owned utility;

• participants in the utility industry should be subject to licensing by an overseeingauthority and that a code of conduct incorporating quality standards be developed forrelevant industries;

• regulation, which should only be used as a last resort, exist to ensure that allbusinesses provide quality services; and

• a formalised system of regulatory review be established in Western Australia.

These reviews have been taken into account in our consideration of this Specified Matter.

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CHAPTER 3 GOVERNMENT IN COMMERCE

3.1 THE NEED FOR UMBRELLA LEGISLATION

3.1.1 Issues for Consideration

When the State Trading Concerns Act 1917 (the STCA) was enacted it was intended toregulate all of the government’s commercial activities. The long title of the STCAprovides:

An Act to regulate the establishment, carrying on, and management of Trading Concernsby the Government of the State, and to authorise the continuance or disposal of certainTrading Concerns, and for other relative purposes.

The STCA applies in part to all government trading activities, as well as to tradingconcerns that are either listed in the Schedule of the STCA or declared by Parliament to besubject to the STCA (s.4(1)).

The STCA limits the activities the public sector can engage in without parliamentaryapproval. Before a commercial enterprise can be established, or carried on, the Parliamentmust give its express authorisation. The WA Royal Commission was concerned about theaccountability provisions of the STCA, identifying a number of ‘curious features of thelegislation’:

(a) While containing detailed accountability measures, they only apply whereParliament declares a trading concern to be subject to the Act. As noted above,companies cannot, because of the structure of the Act itself, be brought within itsaccountability provisions.

(b) ... for practical purposes, [the Act] is irrelevant to statutory authorities for thereason that each authority’s enabling legislation will delineate its powers andresponsibilities. Furthermore, that legislation commonly authorises the authorityto form ‘subsidiary’ companies, so denying the State Trading Concerns Act 1916[sic] any role in the formation of subsidiaries for trading purposes.

(c) Insofar as government-owned companies are concerned, the Act requiresparliamentary approval for their use for the conduct of a trading concern, but notfor any other use. And for the reason given in (a) above, this really is the soleeffect of the Act on such companies. It is an approval mechanism and no more.

(d) A public body which is not so constituted as to be equated with ‘the Governmentof the State’ is quite outside the scope of the Act. (1992: I 3.14.4)

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Chapter 3Government in Commerce

Since its enactment, however, the range and complexity of the commercial activities ofgovernment have vastly expanded. The STCA is no longer adequate for the purposesoriginally intended.

The WA Royal Commission concluded that the State Trading Concerns Act 1917 in itspresent form does not provide an effective or appropriate form of regulation,recommending the repeal of the STCA and:

... the enactment of a State-owned Companies Act which will apply to all companiescreated or owned by the Government or by a statutory authority save where in a specificinstance a special Act applies to a particular company. (1992: I 3.14.8)

The application of the STCA is limited to those circumstances where Parliament hasexpressly declared that it should apply. Sub-section 4(2) of the STCA provides that notrading concerns shall be established or carried on other than those to which the STCAapplies, unless expressly authorised by Parliament. If the Government wishes to conductthat enterprise through a statutory authority it requires legislation for this purpose.

After the Northern Mining Corporation (Acquisition) Act 1983 was assented to, asrequired by the STCA, the Government purchased the Northern Mining Corporation fromthe Argyle Diamond Mines Joint Venture for $50 million. The Corporation became astate-owned company and its name was changed to Western Australian GovernmentHoldings Ltd. (WAGH) in 1985. Following alterations to its Memorandum of Associationthe WAGH was afforded all the rights, powers and privileges of a natural person under theCompanies (Western Australia) Code. WAGH did not have to report to Parliament. Thus,the executive had the power to engage in any commercial activity and incur theTreasurer’s guarantee without Parliament’s knowledge. The Burt Commission concludedthat the provisions under which WAGH operated were ‘incapable of satisfying any of theaccountability criteria set out earlier in this report’ (1989: 75). Burt recommended thereconstitution of WAGH as a statutory agency and the repeal of the Northern MiningCorporation (Acquisition) Act 1983. WAGH is still in existence because of outstandinglegal action in relation to Petrochemical Industries Company Limited (PICL). It isintended to wind up WAGH as soon as that legal action is complete.

There is currently no umbrella legislation in Western Australia which adequately regulatesall of the commercial activities undertaken by government and there is accordingly apotential for corrupt, illegal or improper conduct.

3.1.2 Actions to Date

There have been no changes to the State Trading Concerns Act 1917 since the WA RoyalCommission reported in 1992.

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3.1.3 Public Submissions

Submissions differed as to whether or not commercial statutory authorities should besubject to and/or created under the Corporations Law. Some argued that each commercialstatutory agency should be established under agency-specific state legislation. In others, itwas argued that there should be umbrella legislation setting out the minimumaccountability requirements for corporatised statutory authorities. Even those submissionsfavouring umbrella legislation conceded that there should still be scope for authorities tobe established under specific legislation.

At a Perth public hearing, the Chairman of AlintaGas, Mr Ian Baker, said that it was nowtoo late to consider the approach of overarching, or umbrella, legislation:

Whilst I can see that it is desirable that some common principles should be applied to thecreation of state-owned organisations listed, I do not believe that umbrella legislationwould add value, particularly at this late stage.

Mr Haydn Lowe, Chief Executive Officer of the Disability Services Commission, raisedhis concerns about the difficulty of applying the Corporations Law to state enterprises. Atthe Perth public hearing, he suggested that:

Surely there is some way where the same contingencies can be applied to a government-owned enterprise but not necessarily applied through corporations legislation that dealswith general corporation – a separate Act which in fact contains the same basicinformation.

In its written submission, the Civil Service Association told us that it saw a need forumbrella, as well as industry specific, legislation ‘to govern the commercialisation,corporatisation or partial privatisation’ of statutory authorities. The Association wrotethat:

Umbrella legislation on its own cannot deal with all the detail required in each case,however will enable a broadly consistent approach to such industry reform in the publicsector ... There will be many aspects of such changes that will be very much agencyspecific, and therefore legislation (subordinate to the umbrella legislation) will berequired to cover those agency specific aspects, which will be largely focussed onfunctional/operational matters.

Mr Les McCarrey told a Perth public hearing that he had no strong views either way onthe need for umbrella legislation. In response to a question about whether it is now too lateto introduce umbrella legislation he said that was ‘exactly right’.

The Auditor General, Mr Des Pearson, did not consider that overarching legislation wassuperfluous nor too late. He told a Perth public hearing that:

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Certainly, from an auditing perspective, the one overarching piece of legislation ispreferable and I suggest, in practice, that a downstream consideration of separate piecesof legislation is that continuing whittling away on particular, you know, specifiedgrounds of reasons for diversity.

At a Perth public hearing Mr Andrew Murray, Deputy Convenor of the AustralianDemocrats, told us that the Democrats were ‘strongly in favour of umbrella legislationclearly establishing the founding principles and goals of [commercial statutoryauthorities]’. He said this ‘does not preclude the existence of separate legislationadditional to the umbrella legislation’.

3.1.4 Analysis

The STCA applies to ‘trading concerns’ that are either listed in the Schedule to the STCAor declared by Parliament to be subject to the STCA (s.4(1)). If a trading concern is to beconducted through a company, parliamentary approval under the STCA is required. Thegiving of that approval does not of itself make the trading concern subject to theprovisions of the Act. For this to occur, Parliament must also declare the concern ‘to besubject to this Act’. The STCA contains a general provision which prohibits alldepartments from making profits, producing revenue or competing with the private sector.The STCA should be repealed. It is an outdated piece of legislation which fails to addressthe accountability issues raised by recent public sector reforms, including the use ofcorporatised and commercialised bodies to deliver public services.

The view that government bodies should not be incorporated under the Corporations Lawwas advanced by the Burt Commission (1989) and the Independent Commission toReview Public Sector Finances (1993). The limited control the State Government andParliament can exercise over the form and content of the Corporations Law is a drawback:while state legislation can be drafted to be agency-specific, the Corporations Law cannot.In general we agree with the conclusions reached by the Burt Commission and theIndependent Commission to Review Public Sector Finances (McCarrey Commission).

While we concur that it is preferable for state-owned bodies not to be incorporated underthe Corporations Law, Parliament may consider that it is appropriate in certaincircumstances. If Parliament decides to incorporate a state-owned body under theCorporations Law, steps should be taken to ensure that the Western Australian Parliament,through the responsible minister, has effective scrutiny of the new body and adequateaccountability arrangements are made.

In Western Australia, corporatisation has generally been implemented using agency-specific legislation. In most other Australian states and New Zealand overarchinglegislation has been enacted. Such legislation sets out the commercial principles, rightsand obligations of state-owned corporations, and also monitoring and accountabilityprocedures to allow Parliament and the government to assess the performance of the

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corporations and their boards. Inconsistencies in the requirements imposed on the threeWestern Australian statutory corporations have become apparent.

Because government commercial activities are many and varied and can be undertaken bya wide assortment of agencies (Figure 2.1), we conclude that appropriate umbrellalegislation is necessary if accountability to Parliament is to be assured. Umbrellalegislation is also required to ensure consistency in the corporatisation of statutoryauthorities and accountability requirements.

We propose that a Commercial Activities of Government Act should specify the minimumrequirements for monitoring, controlling and scrutinising government commercialactivities, with provisions for:

• defining the term commercial activities of government;

• defining the term commercial agency to embrace any public sector organizationengaging in commercial activities;

• the establishment of commercial agencies as bodies corporate wherever possible;

• the duties of the board and its directors;

• in the absence of a board, the duties of the chief officer of any agency;

• the functions and powers of the agency;

• the strategic development plans, the statement of corporate intent, quarterly andannual reports, ministerial directions and consultation, and the provision ofinformation; and

• financial management.

But the proposed Commercial Activities of Government Act should not be confined tocorporatised bodies and discrete statutory authorities. The Act should be based on a broadconcept of an agency, which should be defined to include any arm of government orpublic sector organization engaging in commercial activities, including subsidiary orassociated bodies, business units or other sub-categories. Any public sector organizationundertaking commercial activities, as we have earlier defined them, should be covered bythe Act.

Non-corporatised bodies and conventional government departments could comply withthe Act by observing its principles in the conduct of any commercial activities, providingcomplete information to the Minister to enable Parliament to be informed and includingfull details in their annual reports. The Act should not lead to a new, separate reportingprocedure. Its provisions should complement and strengthen the management,

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communication, reporting and accountability measures already used, or recommended byus, in the public sector.

AlintaGas, Western Power and the Water Corporation have already been corporatisedthrough agency-specific legislation and should be exempt from the proposed new Act. Wehave come to this conclusion because the three authorities have only recently come underthe specific scrutiny of the Parliament. The agency-specific legislation should be reviewedafter five years operation, with a view to amendment allowing the proposed CommercialActivities of Government Act to cover the three authorities.

3.1.5 Recommendations

1. The State Trading Concerns Act 1917 should be repealed andreplaced by a Commercial Activities of Government Act which setsout the accountability and regulatory regime for all commercialactivities undertaken by any entity within the public sector.

2. The proposed Commercial Activities of Government Act should applyto all public sector agencies undertaking commercial activities. TheAct should prohibit exclusion of any agency by regulation.

3. The proposed Commercial Activities of Government Act shouldprovide accountability standards for the commercial activities ofgovernment by:

(a) defining the term commercial activities of government;

(b) defining the term commercial agency to embrace any publicsector organization engaging in commercial activities;

(c) establishing commercial agencies as bodies corporatewherever possible;

(d) defining the functions and powers of the agency;

(e) the duties of the board and its directors or in the absence of aboard, the duties of the chief officer of any agency;

(f) establishing provisions relating to strategic development plans,a statement of corporate intent, quarterly and annual reports,ministerial directions and consultation, and the provision ofinformation; and

(g) requiring effective financial management.

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4. State-owned authorities should not be incorporated under theCorporations Law unless there are provisions for the responsibleminister to be accountable to the Western Australian Parliament, in away comparable to other agencies operating under the proposedCommercial Activities of Government Act.

5. AlintaGas, Western Power and the Water Corporation should beexempt from the proposed Commercial Activities of Government Act.The exemption should be reviewed after five years.

3.2 SEPARATION OF ROLES


Another requirement widely discussed is the need to ensure that commercially-orientedstate-owned bodies have clear and non-conflicting objectives. In the past, many wereresponsible for regulating technical aspects of a particular industry, as well as providingservices that were subject to or affected by those regulations. The Hilmer Committee saidthat:

In a competitive environment such a dual role creates a potential conflict of interestbetween advancing the commercial interest of the enterprise and advancing wider publicinterests through the exercise of regulatory powers, presenting opportunities forincumbents to misuse control over regulatory standards to frustrate the actions of actualor potential competitors. (1993: 217)

Many state-owned bodies have responsibility for a range of non-commercial activities orcommunity service obligations (CSOs). CSOs arise:

... when a government specifically requires a public enterprise to carry out activitiesrelating to outputs or inputs which it would not elect to do on a commercial basis, andwhich the government does not require other businesses in the public or private sectorsto generally undertake, or which it would only do commercially at higher prices. (asquoted in Treasury, 1994: ii)

A number of Western Australian Government Trading Enterprises (GTEs) provide CSOs.For instance, in its 1994-95 Annual Report the Fremantle Port Authority noted that:

Operating costs [of $406,000] associated with the maintenance of Port and LeightonBeaches are considered to be subsidies provided by the Authority for communityservices performed without being fully compensated. (1995: 41)

Western Power’s 1995-96 Statement of Corporate Intent states that ‘for the 1995/96 yearthe total cost of the CSOs to be performed by Western Power is estimated to be $71.1 M’(Western Power, 1995: 8-9).

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Although CSOs provide a range of social benefits and meet a variety of governmentpolicies, their presence may also affect other users of the services of these enterprises andthe financial performance of the trading enterprise itself. The issue of whether, and if sohow, a trading enterprise is to provide CSOs raises a number of complex questionsregarding funding, identification, costing, monitoring and reporting requirements andtransparency.


In March 1994, all Australian governments agreed to a uniform approach for the states andterritories to apply income and sales tax equivalents to their trading enterprises (Treasury,1995). In Western Australia ‘tax equivalents’ are paid to the Consolidated Fund inaccordance with the Public Authorities (Contributions) Act 1974. In those jurisdictionswhere umbrella legislation has been enacted to govern the activities of state-ownedenterprises, that legislation contains details of the taxation equivalents to be paid by thoseenterprises. Dividends are generally treated in a similar manner.


There was a general consensus that the principles of competitive neutrality should apply.There was a lack of consensus on how state-owned corporations should be regulated. Inrelation to the ‘issue of openness and accountability of GTEs’, the Hon. Colin BarnettMLA, the Minister for Resources Development; Energy; and the Leader of the House inthe Legislative Assembly, submitted that ‘it is expected that the principles and laws whichapply to the private sector would continue to apply to corporatised entities such asWestern Power’.

Mr Jim Frith was concerned about competitive neutrality, in particular where publicbodies such as CALM are able to compete with private sector organizations. He told theManjimup public seminar that:

CALM doesn’t get taxed. It’s not subject to the bankruptcy laws. It enjoys sales tax freevehicles. So if you’re talking about competition it’s just not there ... I would like to knowwhether these various boards ... as well as enjoying the fruits of commerciality, alsosuffer the penalties of their competitors, such as being subject to bankruptcy laws andsuch as paying sales tax on motor vehicles.

Mr Frith went on to comment that the regulatory functions of CALM should be totallyseparate from the commercial body if CALM is ‘to be in business at all’. He said thatalthough CALM is ‘good at research, advice, regulation, it’s hopeless at making profits. Itmakes losses, colossal losses’.

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Mr Robert Parke told the Manjimup public seminar that:

... if we can’t separate the bodies or it’s considered to not be desirable to separate bodiesthen we should, at least, know the details of where these bodies interface with privateenterprise and to what the actual dealing is, whether they are selling assets ... we should,at least, know and have access to the information of what those deals are and not hidebehind this commercial secretive business. I think that’s ... a load of nonsense.

3.2.4 Analysis

Where their functions have been combined, there has been scope for public sectoragencies to exploit improperly their monopoly or regulatory position.

The recent changes to competition policy in Australia following the Hilmer Committee’srecommendations are relevant to our inquiries because the agreements made between theCommonwealth and States require separation of regulatory and trading activities ofgovernment commercial bodies. As a signatory to the Competition Principles Agreementin 1995, the Western Australian Government has undertaken to develop an environment inwhich commercial activities are faced with the same circumstances they would encounterin the private sector. The legislation which governs the already corporatised electricity,gas and water authorities requires them to operate on a competitively neutral basis relativeto the private sector, including the payment of tax equivalents, dividends and governmentguarantee fees.

In the light of the Competition Policy Reform Act 1995 (Cwlth) and the likely adoption ofcomplementary State legislation, as well as the Competition Policy Agreements madebetween the states, territories and the Commonwealth, there is no need to make furtherrecommendations, other than those in Section 3.2.5. It is anticipated that the NationalCompetition Policy will lead to an extensive national and state framework for themonitoring and control of the commercial activities of government.

The Industry Commission advocated the separation of ministerial responsibility forassociated regulatory functions and negotiating the delivery and funding of communityservice obligations (Commonwealth JCPA, 1995). Both the Office of Energy and theOffice of Water Regulation are answerable to the same minister as the corporations theyregulate. Both the Independent Commission to Review Public Sector Finances (1993) andthe Industry Commission (Commonwealth JCPA, 1995) argue that ministerialresponsibility for the regulatory and commercial aspects of state-owned corporationsshould be separated.

The Hilmer Committee (1993) and the SCGA (1994) recommended the removal of theshield of the Crown. In accordance with those recommendations, s.5 of the WaterCorporation Act 1995 states that ‘the corporation is not an agent of the Crown and doesnot have the status, immunities and privileges of the Crown’. In contrast, s.5 of both theGas Corporation Act 1994 and the Electricity Corporation Act 1994 state that ‘[t]he

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corporation is an agent of the Crown and enjoys the status, immunities and privileges ofthe Crown’. The difference between the three Acts is apparently due to the timing of theenactment of the three pieces of legislation. The Gas Corporation Act 1994 and ElectricityCorporation Act 1994 were prepared in advance of the final determination of the NationalCompetition Policy whereas the Water Corporation Act 1995 was prepared later. Webelieve it is inappropriate for such a discrepancy to exist and recommend that the GasCorporation Act 1994 and Electricity Corporation Act 1994 be amended to remove theshield of the Crown.

The proposed Commercial Activities of Government Act should include competitiveneutrality principles for all government bodies engaging in commercial activities. Inaddition, those bodies should not be able to enjoy privileged relationships with otherpublic sector organizations.

To ensure transparency and clear role separation, the Commercial Activities ofGovernment Act should require all CSOs to be identified and costed, with the means offunding them also stated. No public sector body operating commercially should haveresponsibility for regulating that market. The Act should provide for this.

Regardless of the method used to measure, identify and fund CSOs, it is important forthere to be consistency in the way they are treated. Provisions about CSOs should beincluded in the proposed Commercial Activities of Government Act. These provisionsshould require the details of the nature, extent and funding or compensation arrangementsfor CSOs to be made public.


1. The proposed Commercial Activities of Government Act shouldprovide that all public sector agencies operating commercially shallobserve the following principles:

(a) there should be clear and non-conflicting roles; and

(b) all community service obligations should be identified, costedand their source of funding disclosed.

2. The proposed Commercial Activities of Government Act shouldinclude competitive neutrality principles for all government agenciesengaging in commercial activities.

3. Section 5 of the Gas Corporation Act 1994 and Section 5 of theElectricity Corporation Act 1994 should be amended to remove theshield of the Crown from the two corporations.

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4. Once community service obligations have been identified andcosted, the Parliament should decide whether they are to be paidfrom the Consolidated Fund.

3.3 SCRUTINY BY PARLIAMENT


In the federal sphere, there has been some debate over the extent to which the officers ofcommercial agencies should be able to be questioned by parliamentary committees. In1991, the Senate Standing Committee on Finance and Public Administration was split onthe issue of whether officers of government trading enterprises (GTEs) should only berequired to attend estimates hearings if they received funding through the budget.

There is also continuing debate about whether ministers should be required to answerparliamentary questions about the operations of commercial agencies. It is argued that solong as authorities are owned by the government, they should be required to meet thepublic’s accountability requirements. On the other hand, some parliamentary questionsmay relate to matters of commercial confidentiality. As representatives of the owners ofthe business, ministers, through Parliament, are the public’s primary source of informationabout the operations of commercial agencies.

Although ministers are clearly accountable for the performance of bodies under theircontrol, ministerial intervention in commercial operations may be considered undesirablebecause it could lead to decisions for political rather than commercial reasons. It is oftenargued that ministers should only be involved at a strategic level and not be involved inthe day-to-day operations of commercial bodies.

In the private sector, the directors of companies are subject to duties, responsibilities andliabilities which are established by the common law and set out in legislation. Recentlegislation establishing AlintaGas, Western Power and the Water Corporation sets out theduties of the board members of those authorities. The members of the boards ofmanagement of commercial agencies may also be subject to similar obligations, but thereis no generally applicable statutory statement of such obligations in Western Australia.The WA Royal Commission recommended the introduction of legislation which wouldprovide that:

(a) members of all boards of authorities and State-owned companies be required toconform to the same standards of probity and integrity as expected of personsoccupying positions of trust; and

(b) members of all boards of authorities and State-owned companies responsible forany business activity be required to exercise reasonable care and diligence in theexercise of their powers. (WA Royal Commission, 1992: II 3.14.17)

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The WA Royal Commission recommended that all ‘State-owned or controlled bodies besubject ... to the audit of the Auditor General and to the provisions of the [FAAA]’(1992: II 3.14.19). All public bodies which are listed on Schedule 1 to the FAAA aresubject to both the financial and performance audit mandate of the Auditor General,regardless of whether they are commercialised or corporatised. Although not on Schedule1, the Water Corporation, AlintaGas and Western Power are also subject to audit by theAuditor General.

Treasurer’s Instruction 903 ‘Report on Operations’, in force since June 1993, requires thatthe details of any ministerial directions are included in the annual reports of bodies listedon Schedule 1 of the FAAA. The legislation establishing the Water Corporation, WesternPower and AlintaGas goes further by requiring any ministerial directions to be in writingand laid before both houses of Parliament within fourteen days. These statutes alsoprovide that the minister must be consulted on major initiatives which are likely to be ofsignificant public interest and that ministerial approval must be obtained for transactionsgreater than a prescribed amount.

The recommendations of the WA Royal Commission have been implemented in relationto Western Power, AlintaGas and the Water Corporation. In Western Australia, there is nogeneral legislative statement of the responsibilities and duties of members of boards ofmanagement of commercial agencies.


A number of people making public submissions commented that Parliament should have awide role in scrutinising the commercial activities of government. There was generalconsensus that the current system of parliamentary questions and parliamentarycommittees provided a suitable level of scrutiny in most cases. Some concern wasexpressed about perceived limitations on Parliament’s ability to examine the activities ofthe relatively autonomous commercial agencies. In contrast, in their submissions someagencies argued that the current level of parliamentary involvement is adequate and thatany extra scrutiny could undermine their commercial position.

Mr Phil Harvey, the Chief Executive Officer of AlintaGas, discussed whether members ofboards of corporatised agencies should be required to appear before and give sworntestimony to parliamentary committees, without the relevant minister present. He wrotethat:

AlintaGas believes that this would be inconsistent with the fundamental relationshipscreated pursuant to the Gas Corporation Act.

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In contrast, at a Perth public hearing, Mr Haydn Lowe, the Chief Executive Officer of theDisability Services Commission, said that scrutiny could be achieved by:

... a parliamentary monitoring system perhaps by a standing committee ... [and] anannual general meeting look alike which may well be to a select committee ofparliament.

The role of ministers with responsibility for commercial activities, and the manner inwhich they should be accountable to Parliament and the public for those activities, was thesubject of comment in a number of the submissions we received. The writers of somesubmissions argued that the role of ministers should be limited to strategic direction whenstatutory agencies are corporatised. On the other hand, the authors of many submissionsargued that ministerial responsibility should not be lessened even after the process ofcorporatisation is completed.

A former state cabinet minister and the Chairman of the Water Industry RestructureImplementation Group, the Hon. Peter Jones, told a Perth public hearing:

These bodies are public bodies so ministers can’t be taken out of the loop entirely ... It’sthe minister’s responsibility to make himself aware and if it’s politically distasteful,well, that’s part of the process. So I don’t believe that you can ever entirely remove that.

At the public seminar in Moora, Mr Neil Warne expressed concern that accountability haddeteriorated since the process of corporatisation had begun in Western Australia. Heargued that the role of ministers in relation to commercial agencies should be ‘greater thanat the moment’.

Although the authors of some public submissions cautioned against imposing privatesector controls to the boards of commercial agencies, most agreed that such boards shouldhave the same, if not more, controls as their private sector counterparts. Mr AndrewMurray, Deputy Convenor of the Australian Democrats, wrote that board members shouldbe subject to the same standards as apply in the private sector. On the other hand, at aPerth public hearing, Mr Bruce Meredith, the General Counsel of the SGIO, told us that:

The Royal Commission ... recommended that the directors of the boards of publiclyowned bodies should be subject to the same standards as private sector board members.They have been used to the Corporations Law and it’s illogical to make them complywith the FAAA and yet be subject to the same standards as the private sector.

The writers of some submissions argued that because of the relative autonomy fromministerial control that commercial bodies enjoy, additional accountability measuresshould be imposed on those bodies. Mr Andrew Murray wrote that:

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Autonomy of commercially oriented government bodies is subordinate to accountability.Accountability must not be weakened, it must be strengthened. Accountabilityobligations must be explicit and enforced ... All [commercial statutory authorities]should be subject to the same accountability agencies as are departments.

3.3.4 Analysis

The proposed Commercial Activities of Government Act should place a duty on all chiefexecutives and chief officers of public sector agencies to keep their minister informedabout the conduct and status of all commercial activities undertaken.

The proposed Act should also place a similar duty on all ministers to inform Parliamentforthwith about any matter materially relevant to the conduct and status of a public sectorcommercial activity. The term materially relevant should include financial status, matterslikely to be politically controversial, breaches of duty and departures from conduct codes.

Directors are given ‘the authority and autonomy to make the decisions required to obtainefficient results’ (Independent Commission to Review Public Sector Finances, 1993: 13).From their somewhat removed position, it would be impossible for ministers to have thesame degree of knowledge or understanding of a commercial agency’s operations as thechairperson. Parliamentary committees should be permitted to call the chairpersons of theboards of commercial agencies to provide information, give evidence and answerquestions. Such a requirement is not an unreasonable price of public ownership. It is not amajor departure from the principles of accountability imposed on private companies underthe Corporations Law.

In many cases, the legislation governing a commercial agency prescribes the authority’srelationship with its minister. Ministers are generally responsible for setting a clearmandate and objectives for government commercial activities and day-to-day managementis left to the organization concerned. The Commonwealth Joint Committee of PublicAccounts (JCPA) said that the clarification of the responsibilities of the management,boards and ministers of government trading enterprises has been an important theme in therecent reforms to government-owned businesses (Commonwealth JCPA, 1995).

The basic tenets of our system of accountability and ministerial responsibility demand thatministers always retain the right to control the commercial activities of all public sectoragencies within their portfolio. That right can be abused and can lead to actions forpolitical rather than commercial reasons. This can cause losses which must be borne bythe people of Western Australia. Treasurer’s Instruction 903 ‘Report on Operations’ doesnot require ministerial directions to be laid before both houses of Parliament until they areincluded in the agency’s annual report. This means that Parliament may not be aware ofthe details of ministerial directions until well after they have been acted upon by anagency. The proposed Commercial Activities of Government Act should provide that thedetails of any ministerial directions received in relation to the setting and achievement ofoperational objectives, investment activities and financing are to be in writing. Such

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directions should be laid before both houses of Parliament within fourteen days of theirreceipt by the public sector agency.

While Western Australia does not have umbrella legislation to regulate the commercialactivities of government, the legislation regulating the operations of entities such asAlintaGas and Western Power does prescribe the generic functions of the relevant board.In relation to financial operations, s.55 of the Financial Administration and Audit Act1985 (FAAA) sets out specific responsibilities of the accountable authorities (which insome cases are the boards themselves) of statutory authorities listed on Schedule 1 of thatAct. Those responsibilities cover matters such as efficiency, collection of moneys, controlover expenditure, management of public assets, effectiveness of financial managementsystems and internal audit.

In Western Australia, the duties of the directors of state-owned corporations have alsobeen addressed in the legislation establishing those corporations. Schedule 2 of theElectricity Corporation Act 1994 sets out the duties of the directors of Western Power insimilar terms to the Corporations Law. The directors of the corporation have a fiduciaryduty to act honestly, exercise reasonable care and not make improper use of information ortheir position. There are penalties, ranging from a $5,000 fine to a $20,000 fine and fiveyears imprisonment imposed for breaches of those duties. There are similar provisions inthe Water Corporation Act 1995 and the Gas Corporation Act 1994 but there is no overalllegislative statement in Western Australia of the duties placed on directors or boardmembers of other commercial agencies.

To ensure that commercial activities of government are managed in the public interest, itis vital that those who are in control comply with high standards in the discharge of theirfunctions and that their actions are governed by a legislated code of conduct. All membersof boards of management of commercial agencies should be required to comply with thesame standards of probity and integrity as expected of other persons occupying positionsof trust. The proposed Commercial Activities of Government Act should set out astatement of the minimum obligations that must be complied with by board members ofstate-owned bodies engaging in commercial activities.

It is inappropriate for the minister to appoint the chief executive officer of a state-ownedcorporation. In the private sector, the board of directors appoints the chief executive of thecompany. There are many sound reasons for this, not the least being to facilitate a goodworking relationship between the board and the chief executive. We recommend that theproposed Commercial Activities of Government Act should provide that the board ofdirectors of a state-owned corporation appoint the chief executive.

Although the commercial activities of many state-owned bodies are subject to stringentaccountability requirements, many others are not. A single piece of legislation is the mosteffective way of ensuring that there is consistency in the accountability system. TheFAAA only prescribes financial accountability measures and there are many crucial

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aspects of the accountability regime which are not adequately covered by the FAAA. Toaddress the inconsistency in the accountability system, the proposed CommercialActivities of Government Act should establish the accountability regime to be applied toall agencies engaging in commercial activity.

Despite a number of public submissions suggesting that we do so, we do not recommendthat the proposed Commercial Activities of Government Act should require all bodies tobe subject to the FAAA. The three corporatised authorities, Western Power, AlintaGas andthe Water Corporation, are not listed on Schedule 1 of the FAAA. Under their governinglegislation, each must produce a strategic development plan setting out economic,financial and operational objectives and how those objectives are to be achieved over theensuing five years. Additionally, a statement of corporate intent outlining the objectivesand performance targets for the next year must be produced. Both documents must besubmitted to the minister and agreed upon. The three corporations are also required toproduce annual and quarterly reports. While the statement of corporate intent and theannual and quarterly reports are tabled in Parliament and are public documents, thestrategic development plan is a confidential document and is not subject to parliamentaryscrutiny. Some critics have assessed these plans as ‘superficial and deficient because[they] offer only generalised statements of philosophy which are difficult to measure’(Mascarenhas, 1990: 136). The statement of corporate intent, coupled with quarterly andannual reports, provide sufficient information to allow Parliament and the public to assessthe state-owned corporations’ direction and evaluate their performance.

The three utility corporations are not listed on Schedule 1 of the FAAA because theCorporations Law provides a more suitable financial accountability regime forcorporatised bodies by allowing for greater disclosure and easier comparison with privatesector corporations. Provisions similar to aspects of the Corporations Law governingfinancial reporting apply to the three corporations. In accordance with s.86 of the WaterCorporation Act 1995, the Water Corporation is required to prepare its financialstatements as is required for listed companies pursuant to ss 292 to 307 of theCorporations Law. The utility corporations are subject to the audit provisions of theFAAA and thus are audited by the Auditor General.

The legislation governing the three corporatised utilities requires them to producequarterly and annual reports containing:

• financial statements;

• a report on operations; and

• any other information required to be reported in accordance with the Statement ofCorporate Intent.

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The Gas Corporation Act 1994, the Electricity Corporation Act 1994 and the WaterCorporation Act 1995 provide that the minister must be informed of any matters which, inthe board’s opinion, may prevent, or significantly affect, achievement of the corporation’sobjectives or targets. Any circumstance which could have a material effect on an agencyengaging in commercial activity should be disclosed promptly to Parliament. The ministershould notify Parliament of any unexpected event which could affect materially theConsolidated Fund, the State’s credit position or the agency’s financial position.

The WA Royal Commission (1992) recommended that all activities involving any use ofpublic resources should be audited by the Auditor General. Under the FAAA, the accountsof the Treasurer and those of all statutory authorities listed on Schedule 1 to the Act andgovernment departments are subject to an annual audit by the Auditor General. Inaddition, if requested to do so by the Treasurer, the Auditor General is required to auditthe accounts of any person in receipt of a specific-purpose grant or advance. Subsidiariesof commercial agencies have also been subject to review by the Auditor General since1989. The Auditor General also forms an opinion on each government body’s financialstatements, the adequacy of the body’s internal controls, assesses the extent to whichlegislative requirements have been met and provides an opinion on the relevance andappropriateness of the body’s performance indicators.

We note that there is a discrepancy between the Gas Corporation Act 1994, the WaterCorporation Act 1995 and the Electricity Corporation Act 1994. While the Gas and WaterCorporations are subject to ss 78 to 91 (inclusive) and s.95 of the FAAA, the ElectricityCorporation is subject to ss 78 to 96 of the FAAA. Sections 92 to 94 and s.96 deal withoperational matters which are not relevant to state-owned corporations. Therefore, thosesections should not apply to any state-owned corporations. We understand that thisinconsistency was the result of an oversight when the legislation was drafted. The sectionsof the FAAA which should apply are those named in the water and gas legislation. Werecommend that cl.45(4) of Schedule 3 of the Electricity Corporation Act 1994 should beamended to apply the provisions of ss 78 to 91 inclusive and s.95 of the FAAA to WesternPower.


1. The proposed Commercial Activities of Government Act should placea duty on all chief executives and chief officers to keep their ministerinformed about all matters materially relevant to the conduct andstatus of any commercial activity. Similarly, the proposed Act shouldplace a duty on all ministers to inform Parliament, or if theinformation is claimed to be commercially confidential, the AuditorGeneral, forthwith about any such matter. If Parliament is not sittingthe minister should publish a statement in the Government Gazette

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and table a copy in Parliament on the first available sitting day, or ifthe information is claimed to be commercially confidential, issue thestatement to the Auditor General.

2. The minister responsible for any commercial activity of governmentshould answer parliamentary questions about the operation of thatactivity.

3. Parliamentary committees should be able to call the chairpersons ofboards of corporatised statutory authorities to give evidence, provideinformation and answer questions with or without the relevantminister present.

4. The proposed Commercial Activities of Government Act shouldprovide that in relation to statutory authorities and public sectorcommercial activities:

(a) the responsible minister may give directions in writing to thestatutory authority or agency concerned with respect to theperformance of its functions;

(b) the text of any direction given by a minister in accordance withthe proposed Commercial Activities of Government Act must belaid before both houses of Parliament within 14 days after thedirection is given; and

(c) directions given by a minister should be included in the annualreport of the statutory authority or agency concerned.

5. Where a minister or the Auditor General has received informationclaimed to be commercially confidential, a parliamentary committeecan require the disclosure of that information at an in camera hearingof the parliamentary committee. The committee should determinewhether the information should be disclosed in Parliament.

6. The proposed Commercial Activities of Government Act shouldprovide that the members of the boards of management ofcommercial statutory authorities and the chief officers of all agenciesengaging in commercial activities shall have a duty to:

(a) act honestly;

(b) act in good faith for the benefit of the agency;

(c) give adequate consideration to matters for decision, and to keepdiscretions unfettered;

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(d) exercise powers only for proper purposes;

(e) exercise care and diligence; and

(f) avoid conflicts of interests.

The Act should include appropriate penalties for breaches of theseduties.

7. The proposed Commercial Activities of Government Act shouldprovide that:

(a) any information requested by the responsible minister on thecommercial activities of government shall be provided to thatminister;

(b) commercial activities of government shall be subject to the fullmandate of the Auditor General.

8. Clause 45(4) of Schedule 3 of the Electricity Corporation Act 1994should be amended to apply the provisions of Sections 78 to 91(inclusive) and Section 95 of the Financial Administration and AuditAct 1985 to the Electricity Corporation.

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Chapter 4The State Ombudsman: Introduction

CHAPTER 4 THE STATE OMBUDSMAN:INTRODUCTION

4.1 THE ORIGINS OF OUR INQUIRY

The Parliamentary Commissioner Act 1971 (PCA) provides for the investigation by theParliamentary Commissioner for Administrative Investigations (State Ombudsman) of anydecision or recommendation made, or any act done or omitted that relates to a matter ofadministration (s.14) by or on behalf of specified government departments or otherauthorities. The Schedule to the Act (s.13) lists the government departments andauthorities to which the Act applies. More than 50 government agencies are not included.There is no stated basis for inclusion or exclusion. Until 1985, bodies were addedpiecemeal. Thereafter most new or substitute bodies were added regularly with someexceptions.

The State Ombudsman has expressed concern about the gaps in his jurisdiction. In foursuccessive annual reports, apart from a few stipulated exceptions, he has recommendedthat his jurisdiction should embrace all departments and agencies in the public sector. TheState Ombudsman sees the omissions as having been either inadvertent or deliberate.Inadvertent omissions include:

• the exclusion of Edith Cowan University when other universities are included;

• loss of jurisdiction when a body within jurisdiction was replaced by another withoutappropriate action to place it within jurisdiction, for example the Western AustralianTourism Commission; and

• individual bodies or committees created pursuant to statutory powers, for examplethe Small Business Development Corporation.

Deliberate exclusions include:

• advisory committees, for example the Aboriginal Cultural Materials Committee;

• professional, commercial, departmental and examination and regulatory bodies, forexample the Podiatrists Registration Board; and

• regulatory bodies, for example the Electrical Workers Licensing Board.

It is the State Ombudsman’s view that the existing situation is unsatisfactory because eachof the excluded bodies is capable of acting in an unreasonable or unfair manner andpotentially the subject of investigation by an ombudsman. In 1994, both the State

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Ombudsman and the Legislative Council Standing Committee on Government Agenciesin its 36th Report supported an Opposition Bill to amend the PCA and extend the StateOmbudsman’s jurisdiction.

The Bill, tabled by the Hon. Geoff Gallop MLA, Deputy Leader of the Opposition,attempted to overcome the problem by replacing the existing schedule of inclusion with aschedule of exclusion. All government agencies (with the exception of the Governor’sEstablishment and the Western Australian Agent General in London) would then bewithin the jurisdiction of the ombudsman, unless specifically exempted by the Parliament.In the second reading speech the Hon. Geoff Gallop MLA stated that:

By adopting this approach the onus is then on the Executive to come to Parliamentshould it wish to exempt any of its agencies from the investigative work of theOmbudsman. Reasons will have to be given and the Parliament convinced of theirvalidity. (WAPD, Assembly, 26 October 1994: 6213)

The Bill was defeated in the Legislative Assembly and the Government indicated that itintended referring the matter to the Commission on Government (COG) for itsconsideration. On 28 November 1994, COG received a letter from the Premier, the Hon.Richard Court MLA, formally asking COG to initiate an investigation for the purpose ofdetermining what bodies should fall within the State Ombudsman’s jurisdiction.

Prior to receiving the Premier’s letter, the Hon. Geoff Gallop MLA had suggested to COGthat it should decline to inquire into the State Ombudsman’s jurisdiction as it ought tohave been dealt with by the Parliament. On 21 February 1995 a public hearing was held byCOG on the question of whether or not consideration of the widening of the jurisdiction ofthe State Ombudsman should be added to the Specified Matters to be inquired into byCOG. In a written submission, the Hon. Geoff Gallop MLA claimed that the principalquestion of whether or not the State Ombudsman should have jurisdiction over allgovernment agencies had been decided, the only question being which agencies couldjustifiably claim exemption.

We determined that our inquiries into Specified Matters 7, 11 and 13 would involveinquiries not merely into the jurisdiction of the ombudsman, but of his role function andpurpose under the Parliamentary Commissioner Act 1971 (PCA) (refer to Appendix 1A).We have completed our inquiries into Specified Matters 11 and 13 (Report No. 2, Part 1:COG, 1995a). In the context of those inquiries, we concluded that the State Ombudsmanshould concentrate his efforts on dealing with matters of administration and thatresponsibility for the oversight of the investigation of complaints against the PoliceService should be handled by a new body charged with the investigation, exposure andprevention of improper conduct (Recommendation 69).

In Recommendation 83 we proposed that the PCA should be amended to:

• allow oral complaints to be made to the State Ombudsman;

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• enable the State Ombudsman to resolve complaints in a timely manner byconciliation or mediation;

• enable the State Ombudsman to accept complaints lodged on behalf of anotherperson; and

• respond to complaints made up to six years after the person aggrieved first hadnotice of the matters alleged in the complaint.

We further recommended that:

• the proposed Legislative Council Standing Committee on Public Administrationshould monitor and review the activities of the State Ombudsman;

• the Commissioner for Public Sector Standards should administer the process for theselection of persons for appointment as the State Ombudsman; and

• the budget process for the State Ombudsman should be the subject of a permanentappropriation having been determined by the proposed Legislative StandingCommittee on Public Administration.

This is our report into the remaining aspects of our inquiries into the jurisdiction of theState Ombudsman and his role, function and purpose under the PCA.

4.2 HISTORY AND EVOLUTION

The early 19th century saw the emergence of the concept of the ombudsman as it is knowntoday. The word means ‘representative’ or ‘agent’ and the first modern ombudsman wasappointed in Sweden in 1809. This was followed by Finland in 1919 and Denmark in1955. The first of the common law countries to establish the office of Ombudsman wasNew Zealand (Ombudsman Act 1962 (NZ)) and the United Kingdom did so in 1967(Ombudsman Act 1967 (UK)). According to Pearce (1986), the notion that it was possibleto establish, in a Westminster style of government, a body additional to the traditionaltripartite structure of parliament, executive and judiciary, which could examinegovernment action, represented a considerable breakthrough in constitutional theory.

In 1968 the Commonwealth established the Administrative Review Committee (the KerrCommittee) to undertake a detailed examination of the means of review ofCommonwealth government decisions. The Kerr Committee recommended (1971) theestablishment of a general administrative review tribunal to review decisions on theirmerits and the establishment of a ‘General Counsel for Grievances’. At the time of writingthe report there was no ombudsman in Australia. The Committee considered that theposition known as General Counsel should advise complainants on their rights of review,

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be able to initiate proceedings on behalf of a complainant and have a right to appearbefore a court or the proposed Administrative Review Tribunal. The holder of the officeof General Counsel was viewed as being in a position to provide legal aid. The name‘ombudsman’ was deliberately avoided as it was considered that ‘Counsel for Grievances’better reflected the role that the committee had in mind.

The Kerr Committee saw its proposals as a package with the General Counsel not onlyhaving a traditional ombudsman role but also being able to bring actions before bothtribunals and courts. The Committee was anxious to avoid the review system venturinginto the policy arena and the scheme was aimed at balancing justice and efficiency inadministration. The Committee on Administrative Discretions (the Bland Committee)undertook a further examination of these matters and in 1973 recommended theestablishment of a Commonwealth Ombudsman modelled on New Zealand legislation andthe Ombudsman Act 1976 (Cwlth) was enacted.

Although the Commonwealth took the lead in examining the ombudsman concept, most ofthe states had been quicker to establish an ombudsman. Western Australia was the first todo so in 1971 (Parliamentary Commissioner for Administrative Investigations Act 1971);South Australia in 1972 (Ombudsman Act 1972 (SA)); Victoria in 1973 (Ombudsman Act1973 (Vic.)); New South Wales and Queensland in 1974 (Ombudsman Act 1974 (NSW)and Parliamentary Commissioner Act 1974 (Qld) respectively); Tasmania in 1978(Ombudsman Act 1978 (Tas.)); and Northern Territory in 1993 (Ombudsman (NorthernTerritory) Act 1993 (NT)).

Ombudsman Acts in Australia provide an avenue for the review of cases ofmaladministration or defective administration. These terms are taken to include bias,neglect, delay, inattention, incompetence and arbitrariness. The strength of anombudsman’s work is seen to be in the independence and impartiality of the investigationand the equivalent of Royal Commission powers for the purpose of investigation. InAustralia, an ombudsman investigates, and recommends remedial action if it is thought tobe necessary. Failure to respond may lead to a report being tabled in parliament andtherein, it is argued, lies the power of an ombudsman.

The International Bar Association Ombudsmen Resolution of 1974 endeavoured to ensurethat certain minimum standards or qualities were ascribed to the office of ‘legislativeOmbudsmen’ (Rhodes, 1985: 7) and it defined the office of ombudsman as:

An office provided by the constitution or by action of the legislature or parliament andheaded by an independent high level public official who is responsible to the legislatureor parliament, who receives complaints from aggrieved persons against governmentagencies officials and employees, or who acts on his own motion, and who has thepower to investigate, recommend corrective action and issue reports (Rhodes, 1985: 7).

Although the legislation establishing an ombudsman position generally prohibits anombudsman from inquiring into judicial decision-making, the term ‘matter of

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administration’ is not precisely defined. Whether or not the administration of courts andtribunals should come within an ombudsman’s power has been subject to debate and, inVictoria, to Supreme Court rulings. In Glenister v Dillon 1976 concerning a complaintabout the delay in bringing on a trial, the court made a distinction between the executiveand other arms of government. It determined that the Victorian Ombudsman couldinvestigate only administrative action arising in connection with the executive arm ofgovernment.

By the 1990s, most Australian ombudsman’s annual reports showed increases incomplaints lodged. In addition, as the public sector moved increasingly to new forms ofservice delivery by contracting out, commercialisation and corporatisation, issues ofstandards and accountability were emerging. When services or functions are providedindirectly, the line of accountability may be obscured and citizens could be denied theopportunity of expressing concern and obtaining redress.

Recently, the private sector has embraced the concept of an ombudsman. The banking andinsurance industries have appointed an ombudsman, as have some universities. A specialhuman rights ombudsman has been appointed in countries such as Mexico and Guatemala.This has resulted in concern being expressed about the proliferating use of the wordombudsman and the watering down of its essential elements. In New Zealand this resultedin the Ombudsman Act 1962 (NZ) being amended in 1991 to restrict the use of the term tothe legislated office or other offices that met certain criteria. Guidelines are now availablein other jurisdictions and the general thrust is that the term ombudsman should only beused if the four criteria of independence, effectiveness, fairness and public accountabilityare met.

Dr Brian Jinks, a former Deputy Ombudsman for New South Wales, writing in 1990 wasnot perturbed by the increased use of the name ombudsman, but was concerned that therehad been no systematic effort to discover whether they had performed effectively inAustralia. Jinks writes of ‘the Ombudsman’s Dilemma’. The first dilemma is where theyfit in the scheme of things. In his view they have been squeezed into the Westminstersystem, having been taken from a totally different Scandinavian political tradition. Theyhave an uncomfortable relationship with the executive and, lacking an accepted place inthe structure of government, are faced with unsatisfactory alternatives. They can workwithin the system and risk being captured by it or they can welcome confrontation and usea high profile to obtain redress.

Jinks sees the second major dilemma as a result of the absence of a culture ofadministrative review. In this context a legalistic approach is often taken. An ombudsmanis usually a lawyer and legalism prevails. The third dilemma is the ombudsman’s role.Should they be investigators, Mr Fix-its or caseworkers? In practice the case by caseapproach predominates but this is labour intensive and reactive. The fourth dilemma iswhether and how an ombudsman should anticipate bad administration and workpreventatively, as well as reactively.

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Jinks states that:

... by the time Ombudsmen arrive at conclusions many disputes have been forgotten orbecome irrelevant. It is in this sense that the outcome of a citizen’s complaint is oftenincidental to the ferreting and legal quibbling of the Ombudsman’s staff (1990: 20).

This view is not shared by Stephen Owen, a former Ombudsman for British Columbia,who said that:

The Ombudsman institution can act as an integral part of any democratic system and itsessential independent quality should not suggest that it is not tightly woven into thedemocratic fabric of society (1993 :13).

At the International Ombudsmen Institute Conference (1993) the main challenges wereseen as:

• the further development of alternate means of dispute resolution;

• a greater emphasis on systematic as opposed to individual complaint driveninvestigations;

• the ramifications of contracting out and the delivery of government services by non-government agencies;

• the necessity of holding ‘professionals’ accountable for quality and fairness to publicconsumers;

• the emergence of a more and more specialist ombudsman;

• in Western democracies, the public’s lack of confidence in and cynicism about theprocesses of government; and

• the question of a Judicial Ombudsman.

In 1991, the Senate Standing Committee on Finance and Public Administration (SSCFPA)reviewed the legislation and operations of the Commonwealth Ombudsman. As a result inMarch 1994, the legislation was amended to:

• clarify the Commonwealth Ombudsman’s jurisdiction in relation to‘Commonwealth-controlled companies’;

• extend the Commonwealth Ombudsman’s jurisdiction to parliamentary departmentsand court and tribunal registries;

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• provide the Commonwealth Ombudsman with a discretion whether to investigatecommercial actions of bodies otherwise within jurisdiction;

• provide the Commonwealth Ombudsman with the power to transfer a complaint tothe Australian Broadcasting Authority, the Merit Protection and Review Agency oran industry ombudsman where applicable; and

• allow the Commonwealth Ombudsman to provide services on a fee for service basisto other persons or bodies investigating complaints by consumers about mattersrelating to the holders of licences or authority granted under legislation.

In 1994, the Access to Justice Advisory Committee Report (Sackville Committee Report)identified what it considered to be the fundamental requirements for an efficient effectiveand accountable administrative justice system. Amongst these was ‘an adequatelyresourced Ombudsman’.

Notwithstanding the 1994 amendments to the Commonwealth Ombudsman legislation andan increase in resources, the Commonwealth Ombudsman is of the view that the role andjurisdiction of the office needs further extension. In a paper entitled Complaints and IssuesRelated to Government Services Which are Delivered by Contract the CommonwealthOmbudsman, Ms Phillipa Smith (Cwlth Ombudsman, 1995a), expressed concerns. In herview a new range of complaints was emerging, exacerbated by poor contractdocumentation and the absence of dispute resolution processes. She recommended that thejurisdiction be extended to provide effective accountability for government servicesprovided by administrative arrangements other than direct service delivery.

In her 1994-95 Annual Report, the Commonwealth Ombudsman emphasised theimportance of prevention as a key part of the modern ombudsman’s role (CwlthOmbudsman, 1995). She indicated that 1994-95 had been a year of transition. Focusedoutreach programs had started, as had 25 major projects aimed at more effectivelyidentifying and preventing causes of complaints. In 1993-94, the CommonwealthOmbudsman conducted a survey to gauge the expectations of people who used the officeand their level of satisfaction with the service.

The respondents were better educated and older than the population as a whole: 75 percent thought the office took no longer than expected and 33 per cent saw the office asbiased in favour of the complained-about agency.

In 1994-95 the survey was refined and involved responses from over 1,000 of the 3,000clients provided with questionnaires. The most significant findings were:

• most clients heard about the Commonwealth Ombudsman through the media (35 percent);

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• sixty per cent expected the Commonwealth Ombudsman to investigate theircomplaint and recommend change;

• over 60 per cent felt their expectations were met (43 per cent completely);

• sixty-three per cent believed the Commonwealth Ombudsman identified andunderstood the critical issues in their complaint; and

• thirty-eight per cent expected their complaint to be finalised within three to eightweeks.

The Commonwealth Ombudsman observed a strong relationship between satisfaction andoutcome. This was not surprising but it was affected by the extent to which thecomplainant had been kept informed. Clients informed of the progress of the complaintappeared to be more satisfied with the service. Satisfaction was dependent on the agencyinvolved. Satisfaction level dropped markedly when clients were compelled to undergo aslow ‘internal’ grievance process before coming to the Commonwealth Ombudsman or thecomplaint was investigated by the agency concerned.

New South Wales is the only state where an ombudsman is monitored and reviewed by ajoint parliamentary committee, the Joint Committee on the Office of the Ombudsman. TheCommittee was established in 1990 but by the early 1990s the then New South WalesOmbudsman was expressing to the Committee frustration about his ability to deal with theincreasing number of complaints and access and equity issues for clients who wereAboriginal, of non-English speaking background or poorly educated (New South Wales,Joint Committee on the Office of the Ombudsman, 1993).

As a result, management consultants KPMG Peat Marwick Management Consultancyreviewed the operations and funding of the Office of the Ombudsman. Recommendationswere made about the structure of the office, its complaint handling processes and ways tomeasure performance (New South Wales, Joint Committee on the Office of theOmbudsman, 1993).

In addition, an access and awareness exercise was conducted into the level ofunderstanding of young people, Aborigines, members of ethnic committees and minorityor disadvantaged groups, of the role of the New South Wales Ombudsman and the extentof their access to the office. A number of recommendations were made with particularemphasis on the importance of client surveys, the collection of statistical informationabout vulnerable or disadvantaged groups and strategies to improve communityunderstanding of the services provided by the office (New South Wales, Joint Committeeon the Office of the Ombudsman, 1994). Most of the recommendations made have beenimplemented. In addition, the office has produced its Ombudsman’s Good Conduct andAdministrative Practice Guidelines (New South Wales, Ombudsman, 1995a). Thispublication aims to:

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• provide clear guidance to the public authorities on the conduct and administrativepractice considered acceptable and appropriate;

• promote good conduct and administrative practice in public authorities;

• provide feedback on findings and recommendations made; and

• provide useful material for training and audit purpose.

In Queensland, following the revelations of corruption made by the Commission ofInquiry Pursuant to Orders in Council (Fitzgerald Commission) in 1989, the oversight ofcomplaints against police was given to the Criminal Justice Commission. The Electoraland Administrative Review Commission was given the task of further examining many ofthe deficiencies revealed by Fitzgerald. In 1993, it recommended the creation of aQueensland Independent Commission for Administrative Review (QICAR). It proposedthat QICAR should not only be a generalist administrative appeals body to determineadministrative decisions, but that it should also have an advisory role in relation toadministrative decisions (EARC, 1993). The Queensland Ombudsman has criticised thisrecommendation (1994: 9-11) as has the Queensland Parliamentary Committee forElectoral and Administrative Reform. Both believe that this recommendation potentiallyblurs the functions of an administrative appeals tribunal and an ombudsman.

In Victoria, a separate Police Complaints Authority was established in 1986. Within ashort time the State Government ruled it a failure, repealed the legislation and establishedin its place a Deputy Ombudsman (Police Complaints) under s.6A of the Ombudsman Act1973 (Vic.). In 1993, because of the large number of persons in border towns passing fromone state to another, a Deed of Co-operative Arrangements between the Ombudsman forboth Victoria and South Australia was agreed. The objective is to improve access to therespective offices by residents of both states but with particular emphasis on adjoiningregional communities (Victoria, Ombudsman, 1993). This lead has been followed by theWestern Australian State Ombudsman who has recently entered into agreements withSouth Australia and the Northern Territory.

Sir John Robertson, former Ombudsman for New Zealand, sees the office of anombudsman as having emerged as the citizens saviour, especially during the last decade.During this period new challenges have emerged for an ombudsman in the establisheddemocracies and in the emerging democracies of Eastern Europe and South America.There are over 110 ombudsman positions and Sir John Robertson sees the office as beingin the midst of the most exciting and important decade for the development of theombudsman as an institution. In his view, the essential elements are the independence ofthe office, flexibility in dispute resolution and credibility with the public (1993).

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CHAPTER 5 THE STATE OMBUDSMAN

5.1 THE STATE OMBUDSMAN: ROLE, FUNCTION ANDPURPOSE


The functions, powers, jurisdiction and means of appointment of the State Ombudsmanare set out in the Parliamentary Commissioner Act 1971 (PCA). The application of thatAct is limited to the government departments and authorities specified in the Schedule tothe Act or declared by Rules of Parliament.

The function of the State Ombudsman, as stated in his Annual Report for 1994, is to ‘carryout an independent and impartial investigation of ... [a] complaint’. Under s.14 of the PCAthe State Ombudsman is required to investigate decisions, recommendations and acts oromissions that relate to ‘a matter of administration’. The phrase ‘a matter ofadministration’ is not defined in the PCA and has been the subject of limited judicialconsideration.

The State Ombudsman is required by s.14(1a) of the PCA to investigate action taken by amember of the Police Force or the Police Department in the exercise of, or relating to theexercise of, that member’s powers, duties or functions, whether or not the relevant actiontaken relates to a ‘matter of administration’.

An investigation by the State Ombudsman may be initiated on reference by either house ofParliament or any parliamentary committee (s.15), on the motion of the State Ombudsman(s.16(1)) or on a complaint made under s.17. Complaints are required to be made inwriting except where the relevant complainant dies or is unable to act for themselves(s.17(2)).

There are some specific restrictions on the ability of the State Ombudsman to conductinvestigations. Section 14(3) of the PCA states that decisions of the Cabinet or ministersmay not be investigated. Sub-sections 14(4) and 14(5) provide that, unless the StateOmbudsman otherwise decides, where a complainant has alternative remedies available,whether by way of appeal, reference or review to or before a tribunal or by way ofproceedings in court, the State Ombudsman may not conduct an investigation. Sub-section14(6) denies the State Ombudsman the ability to conduct an investigation into action takenby a person acting as a legal adviser or counsel.

The State Ombudsman may refuse to entertain a complaint where, in his opinion:

• the matter raised in the complaint is trivial;

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Chapter 5The State Ombudsman

• the complaint is frivolous, vexatious or not made in good faith;

• the person affected does not have a sufficient personal interest in the matters raisedin the complaint; or

• the investigation is unnecessary or unjustifiable (s.18).

The State Ombudsman must inform complainants of any decision not to entertain theircomplaint and to provide them with reasons (s.18(2)).

Section 17(5) provides that, unless the State Ombudsman otherwise determines,complaints made more than 12 months after the complainant first had notice of the subjectmatter, are not to be entertained. We have had representations made to us by members ofthe public that they have experienced dissatisfaction when dealing with the StateOmbudsman as a result of this time restriction. While we understand that the value ofevidence may diminish with time, in our view the period set in s.17(5) is unreasonablyshort. We have already made a recommendation in that regard in Report No. 2, Part 1(COG, 1995a: Recommendation 83(10(d))).

The conduct of investigations by the State Ombudsman is governed by Division 3 of PartIII of the PCA. The State Ombudsman is required to inform the principal officer of therelevant government department or authority and the responsible minister of an intentionto conduct an investigation (s.19(1)). Investigations are required to be conducted in private(s.19(2)) and the State Ombudsman is not required to conduct hearings (s.19(3)).

If the State Ombudsman believes that there are grounds for making a report on aninvestigation, the State Ombudsman is required to give the relevant principal officer anopportunity to comment on the subject matter of the investigation (s.19(4)). If anyevidence of a breach of duty or misconduct on the part of any member, officer oremployee of a government department or authority is found, the State Ombudsman isrequired to report that matter to the relevant principal officer and minister (s.19(7)).

Otherwise, the State Ombudsman may conduct investigations in such manner as thoughtfit (s.19(8)). The current State Ombudsman has determined that he will continue hisapproach of:

... undertaking informal investigations, rather than fully formal investigations, whereverpossible. Generally formal investigations have been limited to situations where acomplaint involves important issues on which I may wish to make significantrecommendations, or involves serious allegations of maladministration, or where theagency under investigation is being uncooperative. (1995: 4)

Section 20 of the PCA confers on the State Ombudsman the powers, rights and privilegesof a Royal Commission specified in the Royal Commissions Act 1968. In fact s.20(1)(b)incorporates all of the provisions of the Royal Commissions Act 1968 into the PCA, such

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that its terms are applicable as if the State Ombudsman were a Royal Commission. TheState Ombudsman is entitled to enter any premises occupied or used by any agency towhich the PCA applies.

The obligations of public sector employees and authorities to maintain secrecy, whetherimposed by statute or by any rule of law, are expressly over-ridden by s.20(2)(a) of thePCA. The agencies to which the PCA applies are not entitled to rely on any legalprivileges that, in legal proceedings, would otherwise allow them to refuse to discloseinformation (s.20(2)(b)). Private individuals and entities are, however, entitled to rely onthose privileges (s.20(3)).

One express limitation on the State Ombudsman’s ability to obtain information is set outin s.22. There is no obligation to provide the State Ombudsman with information relatingto cabinet proceedings.

Under ss25(1) and 25(2), if the action to which the investigation relates:

• appears to have been taken contrary to law;

• was unreasonable, unjust, oppressive, or improperly discriminatory;

• was taken for an improper purpose or on irrelevant grounds, or on the taking intoaccount of irrelevant considerations;

• was a decision for which no reasons were, but should have been, given;

• was based wholly or partly on a mistake of law or fact; or

• was wrong,

the State Ombudsman is required to report to the relevant principal officer and may makerecommendations if he is of the opinion that:

• the subject matter of the investigation should be referred to the appropriate authority;

• action can, and should be, taken to rectify or lessen the effects of the matter to whichthe investigation relates;

• any administrative practices should be varied;

• any law in accordance with which, or on the basis of which, the action was takenshould be reconsidered;

• reasons should be given for the action; or

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• any other steps should be taken.

Where the State Ombudsman makes recommendations and no appropriate steps are takenwithin a reasonable period, he may send the report to the premier who is required to tableit before each house of Parliament (s.20(5)). The State Ombudsman has no power tocompel the observance of any recommendation.

The State Ombudsman does not act on behalf of the complainant in conducting aninvestigation. There is, however, a requirement to inform the complainant of the outcome,but not the progress, of any investigation. Where the State Ombudsman has maderecommendations and it appears that appropriate steps have not been taken within areasonable time, the State Ombudsman is required to inform the complainant of therecommendations (s.26). There is, however, no general requirement to inform acomplainant of any recommendations made.

The ability of the State Ombudsman to disclose information obtained during the course ofan investigation is limited (s.23). Disclosure is allowed:

• for the purpose of an investigation;

• for any report or recommendations made under the PCA;

• for the purposes of consultation with the Official Corruption Commission and theDirector of Public Prosecutions;

• for the purposes of any proceeding for perjury or any offence under the RoyalCommissions Act 1968, or the PCA;

• when the State Ombudsman decides that it is in the interests of any governmentdepartment or authority to which the PCA applies; or

• when the State Ombudsman decides it is in the public interest.

In respect of disclosure under the last two points, the State Ombudsman is not allowed todisclose any information that would enable a complainant to be identified. That restrictiondoes not apply in circumstances where the State Ombudsman deals with a complaint in aninformal manner.

Under the PCA, complainants to the State Ombudsman have no statutory protectionagainst reprisals. Additionally, persons who make a complaint are not protected from civilsuit and any liability for damages which may result therefrom.

There is no requirement for the State Ombudsman to promote public understanding andawareness of the functions of that office. The State Ombudsman does, however, have a

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weekly column in the Sunday Times newspaper entitled ‘The Ombudsman’s Casebook’ inwhich case notes are published. He also regularly visits regional centres.

In accordance with the Financial Administration and Audit Act 1985 (FAAA) the StateOmbudsman is required to report annually to the Parliament setting out financial andperformance information, as well as a report on operations. The most recent AnnualReports produced by the State Ombudsman include the following:

• statistical information about the number and type of allegations made to the StateOmbudsman, including allegations about the Police Service;

• details of issues encountered by the State Ombudsman’s office;

• financial and performance information; and

• selected case notes.

The mission of the State Ombudsman is to ‘assist Parliament in making Governmentagencies properly accountable for their actions’ (State Ombudsman, 1995: 1). Theobjectives are:

• to provide an effective and efficient system for handling complaints from personsthroughout the State;

• to assist in improving the quality of public administration and enhancing publicconfidence in it;

• to identify and, where appropriate, investigate areas of defective administrationwhether or not complaints have been received about them;

• to develop community awareness of the office of the State Ombudsman and theservice it provides; and

• to develop understanding of the role of the State Ombudsman for thoseorganizations within jurisdiction (State Ombudsman, 1995: 86).

The State Ombudsman’s principal objective is to provide an effective and efficient systemof dealing with complaints. He states that because of limited resources and backlog ofcases, only a limited amount of preventative work has been done. The State Ombudsmanhas encouraged service charters and complaint management procedures in somedepartments. In November 1995, the State Ombudsman produced a report on theadministrative action involved in the provision of health care at Bandyup Women’s Prison(State Ombudsman, 1995b). The State Ombudsman stressed that this type of investigationwas designed not so much to focus on individual fault, but to improve administration inthe future by identifying systemic problems.

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The Commonwealth Ombudsman has made prevention a priority, identified systemicissues and commenced work on 25 projects (Cwlth Ombudsman, 1995). The New SouthWales Ombudsman (New South Wales,Ombudsman 1995) gives priority to complaintsthat identify structural and procedural deficiencies in public administration has producedgood conduct and administrative practice guidelines for the public sector, and is providingcomplaint-handling training for agencies.

In Western Australia there is no program of education or training in the public sector forcomplaint management or good administration. Apart from support staff, all of the StateOmbudsman’s officers have a complaints investigation role and none is dedicated toeducation and training or identifying systemic issues and developing strategies to addressthem.

In 1994, the Western Australian Task Force on Aboriginal Social Justice produced itsreport. Social justice was described in terms of achieving equality of opportunity andremedying disadvantage, particularly for younger people. A ten point aboriginal socialjustice strategy was presented, consisting of better management, better lives and bettercommunity support. The State Ombudsman was seen as being in a position to make acontribution to aboriginal justice. Recommendation 275 stated that the office of the StateOmbudsman should ensure:

• That the State Ombudsman’s services are accessible to Aboriginal people.

• That Aboriginal people are made better aware of the role of the State Ombudsman.

• That the procedures of the office of the State Ombudsman are adapted in such amanner as to facilitate access by Aboriginal people.

• Employment of an Aboriginal complaints officer.

• That the State Ombudsman establish an Aboriginal Advisory Committee to assistin development of the above processes (Task Force on Aboriginal Social Justice,1994)

In his 1994-95 Annual Report, the State Ombudsman acknowledged that more needed tobe done in relation to public awareness of and access to his office by Aboriginal people.The State Ombudsman indicated that he had not been successful in obtaining extraresources and this had precluded him from appointing an Aboriginal complaints officer.

While, for the State, improved aboriginal access has been recommended, for theCommonwealth a problem has been the Aboriginal and Torres Strait IslanderCommission’s (ATSIC) Federal Court bid to keep confidential an Ombudsman reportcritical of its administration. The Commonwealth Ombudsman described this as ‘anattempt to gag the Ombudsman’ (The West Australian, 2 February 1995). The FederalMinister for Aboriginal Affairs stated that ‘I have an unease about the court action. Buthaving said that, Ombudsmen are not infallible’ (The Australian, 20 February, 1995). The

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challenge was dismissed in the Federal Court but created an interesting dichotomybetween the nationwide emphasis on improved aboriginal access to an ombudsman and inthis case, the rejections of criticism of aboriginal administration by the CommonwealthOmbudsman.

For the year 1994-95, the operation of the State Ombudsman’s office cost $1,610,571 andemployed 26 full time equivalent positions (Figure 5.1). A degree of specialisation existsin relation to the investigation of complaints against the police, local authorities andcorrective services. The State Ombudsman indicated in his 1995 Annual Report that themajor challenges facing him were the gaps in his jurisdiction, inadequate powers in policejurisdiction and inadequate resources.


The WA Royal Commission did not consider in detail the role of the State Ombudsman,although it stated that it must be given a central role in exacting accountability from theadministrative system (1992: II 3.7.1) and that it was one of the limited avenues open tocitizens of the state to call the officials and agencies of government to account (1992: II3.3.1). The WA Royal Commission recommended (Recommendation 31) that the StateOmbudsman, along with the Electoral Commissioner, the Auditor General, the proposedCommissioner for Public Sector Standards, and its proposed Commissioner for theInvestigation of Corrupt and Improper Conduct be designated independent parliamentaryagencies in the legislation establishing their respective offices. To date this has notoccurred.


Many submissions demonstrated an understanding of the role of the State Ombudsmanand an acceptance of the necessity of his watchdog function. Most informants favoured therole being enhanced by the provision of extra power and resources.

In a written submission, the State Ombudsman stated that:

The Ombudsman’s basic function is to investigate complaints ... However there is agreat deal more to the Ombudsman’s role than this.

Although the relevant legislation does not use these concepts, the Ombudsman is also anumpire, a mediator (or perhaps more accurately a facilitator), a safety valve and mostimportantly, a public watchdog.

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Figure 5.1: Western Australia - Office of the Parliamentary CommissionerOrganizational Structure

PARLIAMENT

PARLIAMENTARYCOMMISSIONER

PERSONALSECRETARY

DEPUTYPARLIAMENTARYCOMMISSIONER

PERSONALSECRETARY

SENIORINVESTIGATING

OFFICER(General)

SENIORINVESTIGATING

OFFICER(Local Authorities

etc.)

EXECUTIVE ANDINVESTIGATING

OFFICER

OFFICEMANAGER

LEGAL ANDINVESTIGATING

OFFICER

SENIORINVESTIGATING

OFFICER(General)

ASSISTANTPARLIAMENTARYCOMMISSIONER

PRINCIPALINVESTIGATING

OFFICER(Police)

CLERICALOFFICER

SENIORINVESTIGATING

OFFICERS (3)(Police)

SENIORINVESTIGATING

OFFICER(CorrectiveServices)

INVESTIGATINGOFFICERS (3)

(Police)

ADMINISTRATIVEOFFICER

TYPIST/RECEPTIONISTS (2)

TYPIST/RECEPTIONISTS (2)

INVESTIGATINGOFFICER

(Local Authoritiesetc.)

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The Auditor General, Mr Des Pearson, in his written submission indicated that heconsidered the independence and the proper constitutional standing of the StateOmbudsman warranted consideration. In recognising the important functions dischargedby the State Ombudsman, the Auditor General thought that several of therecommendations in the COG Report No. 1 (COG, 1995) about the independence of theAuditor General should also be made in relation to the State Ombudsman. Specifically therecommendations on selection process, term of appointment and budget allocation.

Mr Lyndon Rowe, Chief Executive of the Chamber of Commerce and Industry of WA(CCI), stated in his submission:

In many respects the role of the Ombudsman closely follows that of the Auditor General.The issues already canvassed by the Commission on Government regarding the AuditorGeneral’s separation from the executive, financial and personal independence andaccountability to the Parliament apply equally to the Ombudsman.

Mr Rowe went on to propose that the Commission on Government should review itsrecommendations designed to promote the independence and accountability of the AuditorGeneral in order to ascertain whether similar measures are desirable for the StateOmbudsman.

Dr Rodney Stone, in his written submission, expressed concern about the proliferation ofaccountability agencies in Western Australia. In his view, this led to overlap andduplication which was wasteful of both human and financial resources. He suggested thatany consideration of the activity of the State Ombudsman required a redrawing of theduties of each of the existing accountability agencies to remove overlap. He also suggestedthe creation of one ‘supremo’ responsible to Parliament for all of the accountabilityagencies.

Duplication of role was also raised in the written submission from Murdoch University.The Governor of Western Australia is the ‘visitor’ of the four universities in the State. Thevisitor’s principal function is to hear and investigate grievances and complaints aboutinternal university matters. The State Ombudsman can also investigate complaints aboutthree of the four universities in Western Australia. In a recent case involving MurdochUniversity, the State Ombudsman expended considerable time and effort on allegationsthat in his view were not sustained. These allegations have now been referred by thecomplainant to the University Visitor. The Registrar of Murdoch University hasquestioned the efficiency of such duplication and submitted that universities should besubject to only one avenue of appeal, either the Visitor or the State Ombudsman.

A number of authors were not convinced of the independence and impartiality of the StateOmbudsman. They were angered by the time involved in obtaining a response and by thelack of feedback.

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There were submissions which raised the matter of specialist expertise and criticised thelack of expertise in relation to the mining industry. Similar concerns have been raisedabout land valuation.

Mr Kevin Moran, on behalf of the Community Action Legislation Lobby (CALL), toldCOG that he was gravely concerned by the apparent inability of the State Ombudsman’soffice to make social workers accountable for their actions. He and his colleagues arguedin their written submission that the State Ombudsman’s office did not have the expertiseto deal with such matters. The State Ombudsman’s practice of relying on the writtenrecord alone resulted in social workers not being made accountable for their actions inrelation to young people and their families. CALL recommended the setting up of aspecial unit of skilled investigators who would not simply operate on the basis of filematerial but who would conduct fresh investigations.

The notion of specialist expertise was further developed in a written submission from theHon. Kevin Minson MLA, Minister for Works; Services; and Disability Services. Thefocus of the submission was on the State Ombudsman and his role in relation togovernment activities conducted by the private sector. The balancing of fairness andefficiency was seen as a key issue. One possible solution was an ombudsman for eachspecific industry, as recommended by the Legislative Assembly Standing Committee onUniform Legislation and Inter-Governmental Agreements (SCULIA, 1996).

At the regional seminar in Port Hedland Mr Hayler said:

An ordinary honest citizen on a reasonable wage hasn’t got a chance with justice. Thereshould be more ombudsmen, more power and more protection.

A number of people expressed the view that the State Ombudsman should have greaterpowers of enforcement. Mr Crimp, at the regional seminar held in Derby, said:

If the Ombudsman had more teeth ... it may be that we wouldn’t need quite so manyethical new laws coming in because the ethics would be covered by the Ombudsman andpeople in the public sector would be less likely to bend the rules.

Others thought there was little understanding of the State Ombudsman’s role. In herwritten submission to us, Ms L. Ethell, Director Citizens Advice Bureau of WA (Inc.),said:

... there are still many people who are unaware of the Ombudsman’s Office, and whohave no idea of its function and purpose. It would seem that more education is verynecessary.

The State Ombudsman himself, in a letter to COG, commenting on a number of thetranscripts of COG regional seminars, said:

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... there are certain misconceptions about the role and function of my office. Some of theinformation considered by the Commission appears to have come from dissatisfiedcomplainants, but there also appears to be a certain amount of purely anecdotal evidencefrom other sources. In one respect I can accept that the greatest level of dissatisfactionand criticism comes from disgruntled complainants who want publicly to ‘vent theirspleen’ because I found myself unable to meet their expectations. What is slightlysurprising is that the most vehement critics appear to be those on whose complaints myoffice has spent inordinate amount of time and resources.

5.1.4 Analysis

The majority of submissions received indicated that the State Ombudsman is viewed ashaving a critical role as a public watchdog and independent accountability agency. Manypeople recommended that he have additional power and the ability to enforce hisdeterminations. Although the State Ombudsman has emphasised that he is neither anapologist for the government nor an advocate for the complainant, in most of thesubmissions there was an expectation that the office existed primarily to serve the publicand make government agencies accountable. In this context, the independence of the StateOmbudsman was viewed as critical. Independence needs to be further secured by adoptinga selection process, term of appointment and budget allocation paralleling thatrecommended for the Auditor General. These proposals will be developed in Section 5.4.

Some submissions reflected a misunderstanding of the role of the State Ombudsman as acomplaints investigator and maker of recommendations. It seemed to us that some of thefrustrations expressed with the role of the State Ombudsman were as much to do withmisplaced expectations as a failing on the part of the State Ombudsman. For many,however, delays were a concern, as was the lack of feedback about the progress withcomplaints and a perceived absence of effective investigative skill.

The State Ombudsman is not obliged to inform complainants of the progress of aninvestigation or of the recommendation made. We have noted the finding of the surveyconducted by Commonwealth Ombudsman wherein client satisfaction was stronglyaffected by the amount of contact (Cwlth Ombudsman, 1995).

The State Ombudsman has said that there is a high level of personal contact betweencomplainants and officers. This is undoubtedly the case in some instances but mostinvestigation by the office is based on agency reports and file material. It is important toenhance the State Ombudsman’s effectiveness and therefore there should be more contactbetween complainants and staff. There should be regular feedback on progress and anyrecommendations.

During our inquiries, concerns were expressed to us about the effectiveness of the StateOmbudsman’s office in dealing with complaints from Aboriginal people. We drawattention to Recommendation 275 of Report No. 1 of the Task Force on Aboriginal Social

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Justice. We note the State Ombudsman does not have an Aboriginal staff member. Suchan appointment should be made.

It is 25 years since the PCA was enacted. During this time, the range and complexity ofgovernment activity has increased dramatically. As a result, the State Ombudsman inexamining matters of administration is faced with complaints about various specialistareas.

In Section 4.2, the increasing use of a specialist ombudsman was mentioned. A number ofsubmissions recommended either a specialist ombudsman or the provision of specialistskills in the State Ombudsman’s office. The State Ombudsman was asked for his views onthis matter. He did not favour a specialist ombudsman, preferring the continuation of thetraditional approach. Taking into consideration the State Ombudsman’s views and therelatively small population of Western Australia, we do not favour a specialistombudsman. We acknowledge, however, the necessity for specialist assistance andrecommend that a panel of experts should be appointed to assist the State Ombudsman inthe investigation of matters requiring specialist knowledge. The panel of experts should bedrawn as and when required from the private sector or otherwise from outside thejurisdiction of the State Ombudsman.

It is unreasonable and wasteful of both time and resources for administrative decisions atpublic sector universities to be subject to two possible appeal processes, the Visitor andthe State Ombudsman. There should be only one body conducting such reviews. For thoseuniversities involved, the Parliament should decide which avenue of appeal should apply.

Increasing emphasis is being placed on prevention as a key element of the modernombudsman’s role. The State Ombudsman has acknowledged that this is important butstresses that his principal objective is to provide an effective and efficient system ofhandling complaints. He has indicated that limited resources constrain his ability to domore about prevention. We view prevention as a critical part of the State Ombudsman’srole and have been impressed by the approaches being taken by the CommonwealthOmbudsman and the New South Wales Ombudsman. The preventative aspect of the StateOmbudsman’s role should be enhanced by the provision of sufficient resources to conducteducation and training programs for government agencies to identify and correct systemicadministrative faults.

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1. The State Ombudsman should keep complainants informed about theprogress of the investigation of their complaints and the making ofrecommendations.

2. The State Ombudsman should implement the recommendations ofthe Task Force on Aboriginal Social Justice to ensure:

(a) that the State Ombudsman’s services are accessible toAboriginal people;

(b) that Aboriginal people are made better aware of the role of theState Ombudsman;

(c) that the procedures of the office of the State Ombudsman areadapted in such a manner as to facilitate access by Aboriginalpeople; and

(d) the employment of an Aboriginal complaints officer.

3. A specialist ombudsman should not be appointed.

4. A panel of experts should be appointed to assist the StateOmbudsman as and when necessary, in the investigation of matterswhich require specialist knowledge.

5. There should only be one body with jurisdiction for reviewing theadministrative decisions of universities. For those universities whichare at present subject to two external bodies for dealing withcomplaints about administrative decisions (the State Ombudsmanand the Visitor), Parliament should decide which one should havejurisdiction.

6. The preventative aspect of the State Ombudsman’s role should beenhanced by the provision of sufficient resources to conducteducation and training programs for government agencies to identifyand correct systemic administrative faults.

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5.2 EFFECTIVENESS AND EFFICIENCY


There are difficulties in interpreting the statistical information compiled by the office ofthe State Ombudsman. While s.17 of the PCA refers to complainants, the StateOmbudsman refers to allegations. One complaint may include many allegations and thismakes state by state and year by year comparisons difficult.

Over recent years the State Ombudsman has reported increases in the number ofallegations dealt with by his office. In 1994-95, 3,265 allegations were received, a 16.9 percent increase from the previous year. This was a record number for the Office. Allegationsfinalised in 1994-95 numbered 2,884, representing a 3.6 per cent increase from theprevious year. The time taken to complete investigations was reduced from 25 weeks for1993-94 to 16.5 weeks for 1994-95 (State Ombudsman, 1995).

Using the State Ombudsman’s annual reports from 1991-92 to 1994-95, data onallegations and their outcomes and the staff resources involved, are presented in Table 5.1

The ratio of allegations finalised to the total staff complement appears to show a trend ofdecreasing productivity per staff member. The resources dedicated to complaints againstthe police is also significant.

The State Ombudsman has pointed out that allegations requiring major or briefinvestigations are both treated statistically in the same way. He suggests that it is verydifficult, if not impossible, to quantify the effectiveness of some government activities andthat this applies to a large extent to his own office:

Control needs to be exercised in assessing the performance of my office. Firstly, I amneither an advocate for the complainant nor an apologist for the government agencyagainst which the complaint is directed ... there can sometimes be a tendency for bothsides to want ‘to shoot the umpire’ because neither has been vindicated. (StateOmbudsman, 1995: 27)

In addition, the State Ombudsman has claimed that the basic powers and procedures underwhich he is required to operate may reduce the efficiency and effectiveness of his office.An example of this is his inability to act on oral complaints.

The State Ombudsman oversees two programs: the Specified Public Sector OrganizationsProgram, and the Police Force & Police Department Program. The key performanceindicators for these programs are set out in Table 5.2 and the subsidiary performanceindicators in Table 5.2 having been extracted from the State Ombudsman’s Annual Reportfor 1994-95.

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Table 5.1: Western Australia - State OmbudsmanNumbers of Allegations Finalised 1991/92 - 1994/95

1991-92 1992-93 1993-94 1994-95

1994-95Complaints

AgainstPolice

1994-95General

Allegations made 2529 2332 2794 3265

Allegations finalised(AF)

2140 2530 2784 2884 1656 1228

Less:

No jurisdiction -271 -212 -224 -227 -10 -217

Discretionexercised

-488 -254 -219 -270 -86 -184

Monitored only(complaints againstpolice)

-905 -1050 -804 -864 -864 n/a

Withdrawn orlapsed

-118 -89 -146 -140 -84 -56

Sub-total -1782 -1605 -1393 -1501 -1044 -457

Complaints investigated &finalised (CI & F)

358 925 1391 1383 612 771

No. of investigatorsFull time equivalents(FTEs)

5.75 7.5 11.5 13 7 6

Total No. of staff(FTEs)

16 # 20 25 26 * 8 18

CI & F perinvestigator

62 123 121 106 87 129

CI & F per staffmember

22 37 56 53 77 43

AF per staffmember

134 149 111 111 207 68

Source: Extracted from the State Ombudsman Annual Reports for 1992-93, 1993-94, and 1994-95.

# At 30 June 1993 establishment was 25 FTEs. This has been reduced to account for new positions only being filled for part of the year.

* This figure includes the Assistant Parliamentary Commissioner but does not include time of the State Ombudsman, the Deputy State Ombudsman or other staff who may be working on police complaints (see Figure 5.1).

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Table 5.2: Key Performance Indicators

The principal objective of my office is to provide an effective and efficient system for handling complaints,from persons throughout the whole of the State, about the administrative actions of State Governmentdepartments, local government authorities and certain statutory authorities, and about both theadministrative actions and conduct of members of the Police Force and Police Department.

Specified Public Sector Organizations Program 1993 1994 1995

Effective Indicators

. Percentage of allegations finalised where complainants received assistance

81% 79% 76%

. Number of improvements to practices and procedures 76 69 43

Efficiency Indicators

. Average time taken to finalise allegations (weeks) 22 26 18

. Allegations finalised per equivalent staff member (1) 129 129(2) 101

Police Force and Police Department Program

Effectiveness Indicators

. Percentage of allegations (3) finalised where complainants received assistance

51% 59% 34%


. Number of allegations where the police took further investigatory action or made further enquiries at the instigation of the Ombudsman

60 302 502

Efficiency Indicators (4)

. Average time taken to finalise allegations (weeks) 10 24 15

. Allegations finalised per equivalent staff member (5) 157 100 120

Effective Indicators Relating to Both Programs

Number of allegations per 10,000 electors (6) Country MetropolitanNumber of regional centres visited

212323

252721

313024

Source: State Ombudsman Annual Report 1994-95

(1) The Full Time Equivalent (FTE) staff figure used for the purpose of this calculation includes Investigating Officers and a proportion of Corporate Services, the Ombudsman and the Deputy Ombudsman.

(2) The decrease from the previous year was due to a decrease in supernumerary (no cost to my office) staff assistance and a 40% increase in the amount of leave taken by staff. Much of the leave had accumulated from previous years.

(3) Allegations that were monitored only are not included in the calculation of this figure because of the categories of assistance included in the Office's statistical system are not applicable to them.

(4) Allegations that were monitored only are included for the purpose of these calculations.

(5) The Full Time Equivalent (FTE) staff figure used for the purpose of this calculation includes the Assistant Ombudsman, Investigating Officers and a proportion of Corporate Services, the Ombudsman and the Deputy Ombudsman.

(6) My office endeavours to provide an effective and efficient service to all persons in the State, irrespective of where they live. This measure gives an indication of the relative knowledge and usage of the Ombudsman's services by country and metropolitan residents. The closeness of the figure suggests that my schedule of regional visits and toll free telephone number significantly compensate for any disadvantage to country residents arising from the fact that I only have an office in the metropolitan area.

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When asked if the State Ombudsman’s office had conducted any client surveys, theDeputy State Ombudsman advised that he did not have the resources for such activity.

A consistent theme in recent annual reports of the State Ombudsman is that of assistingagencies in improving administration. In this context the State Ombudsman hasencouraged the use of service charters and the setting up of formal complaint managementand review procedures in departments such as Family and Children’s Services,Homeswest, Health and in local authorities such as the City of Stirling.

The State Ombudsman has pointed out that variations in jurisdiction and recording criteriamake interstate, Commonwealth or overseas comparisons impractical. While accuratestatistical comparisons may not be possible, it is useful to examine the approaches being

Table 5.3: Subsidiary Performance Indicators

Subsidiary objectives of my offices are:

. to assist in improving the quality of public administration and enhancing public confidence in it;

. to develop community awareness of the office and the services it provides; and

. to develop an understanding of the role of the Ombudsman for those agencies within jurisdication.

Separate effectiveness indicators for the first subsidiary objective are available for each program and are asfollows:

1993 1994 1995

Specified Public Sector Organizations Program


. Number of occasions in which requests were received for advice on legislation, review machinery and improvements to public administration

4 4 8

Police Force and Police Department Program


. Number of requests for advice on police-related issues 2 3 2

Action to meet the other objectives is usually taken jointly forboth programs and so it is not practicable to have separateperformance indicators for each program.

Number of talks given to schools and community organizations 42 49 62

Number of media interviews given 8 13 37

Number of talks given to government agencies, etc. 6 6 9

Number of annual reports distributed to agencies within jurisdiction 382 387 510

Source: State Ombudsman Annual Report 1994-95.

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used in other jurisdictions. In New South Wales the Ombudsman, like her counterpart inWestern Australia, is responsible for investigating complaints about generaladministration and the police. The budget for the New South Wales office is $4.4m andthe staff allocation is 72 (New South Wales, Ombudsman, 1995). For 1994-95 there were7,636 complaints, a seven per cent increase from the previous year.

With regard to complaint resolution, 92 per cent were finalised in less than 60 days, theaverage being 41 days. The average time taken to acknowledge a complaint was 7.8 daysand 70 per cent of complaints were resolved through the provision of information oradvice or constructive action by the public authority. Because of resource constraints, theNew South Wales Ombudsman decided that priority would be given to: those complaintsthat identified structural and procedural deficiencies or demonstrated a serious abuse ofpower; those complaints that were likely to lead to recommendations producing realchange; and those complaints that were likely to lead to recommendations resulting inpracticable and measurable changes.

The New South Wales Ombudsman sees successful complaint management by the publicsector as a critical element in the effective resolution of complaints. To this end GoodConduct and Administrative Practice Guidelines has been produced (New South Wales,Ombudsman, 1995a) and places emphasis on providing complaint-handling training foragencies. In addition, mediation and conciliation are given priority, restructuring forproductivity gains is under consideration and the possibility of ‘user-pays’ for specialinquiries is being considered.

The South Australian Ombudsman has decided that in an era of rapid growth, it isimportant for an ombudsman to have meaningful tests of effectiveness. He warns of thedangers of the ‘simplistic abstractions’ that can be made with statistical data. Instead hehas opted for a combination of performance indicators, an Ombudsman Charter and testsdeveloped by the Centre of Ombudsman Studies at the University of Reading in England(South Australia, Ombudsman, 1995).

In South Australia the performance indicators are:

• Visibility and user awareness: potential users of a complaint-handling procedure ofthe South Australian Ombudsman should be aware of its existence and functions.

• Independence and impartiality: the South Australian Ombudsman should not be opento influence by, associated with, or part of, the organization subject to investigationand appraisal.

• Accessibility to potential users: complaint-handling personnel should be accessiblefor potential users and the processes readily set in motion.

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• Jurisdiction: minimum restrictions should be placed on the type of complaint, thenature of the action and the range of authorities open to investigation by the SouthAustralian Ombudsman’s office.

• Powers of investigation: reliable fact-finding procedures must be used.

• Competence: the grounds on which the South Australian Ombudsman may criticiseor find fault with the action subject to investigation should be appropriatelyformulated.

• Speed: allegations of defective administration should be dealt with as speedily aspossible.

• Adequacy of remedial action: remedies should provide adequate recompense forinjury or injustice sustained.

• Effectiveness in Securing Compliance: a South Australian Ombudsman’s office mustbe capable of securing acceptance of its findings and compliance with itsrecommendations.

In South Australia there is an ‘Ombudsplan’ and the performance indicators relate to threeprograms: the Complaints Investigation Program; the Publicity and Education Program;and the Support Services Program. There are performance indicators that relate to a codeof personal conduct. The complaints investigations objectives will have been met whenthe average completion time is less than 120 days for formal investigations and less thanten days for informal investigations. A result or a progress report is to be provided withineight weeks of the complaint being lodged. A further important element for effectivenessis the professionalism of the South Australian Ombudsman. This is seen to be based on acombination of features of the office including:

• legal and moral authority;

• prestige of the office;

• professional commitment;

• ethical guidance to agencies;

• promoting just and fair administration;

• positive outcomes;

• relationships with other review or adjudicative bodies;

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• a direct link to parliament;

• a position of trust with the government of the day; and

• expertise in investigating and evaluating administrative actions.

In Queensland, the Ombudsman, who does not have responsibility for the oversight of theinvestigation of complaints about the police, dealt with 4,521 cases in 1993-94. In thatyear the Queensland Ombudsman’s office had a staff of 27 and, a budget of $2,414,000.The effectiveness of the office was assessed on a ‘success rate’ which is the ‘sustained’and ‘rectified’ cases combined as a percentage of the cases received during the year. Theperformance indicators are:

• files closed, a targeted increase of five per cent per annum;

• implementation of recommendations, a target of 100 per cent;

• sustained cases rectified, a target of 100 per cent; and

• recurring complaints dealt with systematically.

Another variant on effectiveness and efficiency is found with the CommonwealthOmbudsman. For 1994-95 the office had a budget of $8,537,264 and a staff complementof 95, an increase of 15 over the previous year. During 1994-95 a six per cent increaseover the previous year resulted in 17,010 complaints. A priority is prevention and in thiscontext 150 systemic issues have been identified. Connected with this has been theestablishment of a Policy and Public Affairs Section to provide legal and policy adviceand to develop better data analysis, quality assurance and reporting. Four specialist liaisonofficers have been appointed to focus on indigenous communities; immigration;employment, education and training; child support and the use of private employmentcontractors. The information and complaints classification system has been changed toimprove the analysis of the nature, outcome and handling of complaints.

The Commonwealth Ombudsman acknowledges every written complaint within sevenworking days and advise on the likely time frame for consideration. If the complaint canbe dealt with rapidly the client receives a final response in two weeks. TheCommonwealth Ombudsman puts much value on client surveys and in recent years bothcommunity awareness and client satisfaction have been surveyed and the results used toimprove access and service delivery. The Commonwealth Ombudsman presents the resultsof her involvement with agencies as a ‘Report Card’. This lists the number of complaintsreceived about each agency and other statistical data. The average time to finalisecomplaints for each agency is also provided, rather than the mean figure for all agencies,which is commonly used by other Australian ombudsman offices. The mean figure for all

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agencies does not necessarily reveal where a delay is occurring and whether it is the faultof the agency or the Ombudsman’s office (Cwlth Ombudsman 1995).


There has been no action taken since the WA Royal Commission reported in 1992.


Public submissions often expressed concern about the level of resources available to theState Ombudsman. The primary concern was simply that the State Ombudsman hasinsufficient resources to process complaints. The way in which the State Ombudsman isfunded was also raised. Other submissions included suggestions for improvingproductivity within the Ombudsman’s office.

The National Council of Women of Western Australia (Inc.) said there should be anincrease in the accommodation, staff and resources of the State Ombudsman’s office toenable ‘that department to deal with problems and complaints with less pressure and withmore time for decision making’.

Mr Ormond Girvan wrote to us stating that:

Funding for the Ombudsman’s office must be adequate to [enable the office to] clear allbacklogs, and to provide an efficient and complete future service.

Ms Anna Gossmann submitted to us that more funding and resources be made available tothe State Ombudsman to enable findings to be brought down within three months of acomplaint being lodged.

Mr Andrew Cox suggested in his written submission to us that the State Ombudsman’sfunding arrangements should:

... have an element of independence, so that the ability of the [State] Ombudsman toconduct investigations cannot be diluted by the actions of Government (for example, bydenying adequate funds to employ sufficient resources).

In a written submission K. Rundell suggested:

Amendments to permit informal resolution of complaints should improve matters andallow the office to eliminate the backlog of work.

At a public hearing held in Perth the State Ombudsman, Mr Robert Eadie, was asked whatthe ideal level of resources for the State Ombudsman’s office would be, assuming theexisting gaps in the his jurisdiction were closed. In his response, Mr Eadie said:

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I believe first of all if we did not have power to deal with oral complaints, we would belooking at the need for at least six additional investigating officers to be able to handlethe complaints reasonably adequately, together with some supporting staff. I haven’tgiven full thought to how many support staff but certainly some would be required.These days with word processing and so on of course there isn’t quite the same need foradditional support staff but you do need to have some to answer telephones and inquiriesand deal with filing and so on.

On the other hand, if we did have the oral complaint power we would be looking at adifferent structure and level of officer. I would say there are perhaps three or maybe atthe outside four investigating officers and then three to four inquiry officers. When I amtalking about investigating officers, by the way, I am talking about officers atapproximately the 5 to 6 level, the more senior ones at the 6 level and the less seniorones at the 5 level. In the case of inquiry officers we are talking there about mostly level3 with maybe one or two at 4. That does show right away, I think, the potential forsaving as well, of course, if I were able to deal with complaints in that way.

5.2.4 Analysis

In our view the State Ombudsman’s office has made a concerted effort to publicise itsexistence and role. Evidence of this includes the significant and increasing number of talksgiven by the State Ombudsman and his staff to schools, community organizations andgovernment agencies. In addition, information brochures and annual reports aredistributed and the State Ombudsman writes a regular column titled ‘The Ombudsman’sCasebook’ for the Sunday Times newspaper. The State Ombudsman visits regional areasof the State. The visits are accompanied by media publicity and in many instances includeradio and newspaper interviews. Complainants may also be interviewed by the StateOmbudsman. We are also aware the State Ombudsman provides a free call telephonenumber for non-metropolitan residents. These measures appear to be reasonably effective,to the extent that slightly more complaints are received per 10,000 electors in the countrythan in the metropolitan area.

Clearly, to be effective the State Ombudsman’s jurisdiction must be broad in terms oftypes of complaints that can be investigated and the range of actions and authorities thatcan be investigated. The jurisdiction of the State Ombudsman is addressed by ourrecommendations in Section 5.3.

The State Ombudsman must have adequate powers of investigation and use reliable fact-finding procedures. We consider the investigative powers in the PCA are adequate butrecommend the procedures used be enhanced by greater face to face contact withcomplainants.

Investigating officers should be courteous, motivated to help complainants, have soundinvestigative skills and a broad knowledge of the public sector. When new staff arerecruited they should have these attributes.

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The speed with which the State Ombudsman finalises complaints needs urgent attention.According to the State Ombudsman’s own figures, the average time taken to finaliseallegations in 1994-95 was 18 weeks for general complaints and 15 weeks for those aboutpolice. While these figures represent a significant improvement on the previous year whenfigures of 26 weeks and 24 weeks, respectively, were recorded, the number of allegationson hand at 30 June 1995 was 1,258 compared with 877 a year earlier. This is not anacceptable situation. We recommend that temporary staff immediately be allocated to theState Ombudsman’s office until the backlog of complaints is substantially reduced and anindependent management review undertaken to determine:

• whether systems and procedures can be modified to speed up the finalisation ofcomplaints; and

• the number of additional staff required to ensure backlogs are held to acceptablelevel.

Any temporary staff allocated should have the attributes discussed above.

An important function of the State Ombudsman’s office is to recommend remedial actionwhen defective administration is uncovered. This requires skill to ensure action isadequate and, where possible, satisfies the complainant and the agency concerned.

The State Ombudsman’s office should follow-up its recommendations and use itsreporting powers to promote compliance. Performance indicators should include details ofrecommendations made to each agency and whether these have been acted upon.

The State Ombudsman has developed two efficiency indicators which are published in his1994-95 Annual Report:

• average time taken to finalise allegations (weeks); and

• allegations finalised per full time equivalent staff member.

From discussions with the State Ombudsman and his staff, we are aware that they use theirdiscretion when determining the number of allegations recorded per complaint. For thisreason, the figures used for efficiency measurement and year to year comparisons in theState Ombudsman’s annual reports are of limited value.

The State Ombudsman should commission regular independent surveys of bothcomplainants and agencies to determine their satisfaction concerning the StateOmbudsman’s service. The survey results should be submitted to the proposed LegislativeCouncil Public Administration Committee for tabling in Parliament.

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1. An independent management review of the State Ombudsman’soffice should be undertaken to determine:

(a) whether systems and procedures can be modified to speed upthe finalisation of investigations into complaints;

(b) the number of staff required to ensure there are nounreasonable delays in the investigation of complaints;

(c) the appropriate interpersonal and investigative skills required ofstaff; and

(d) the resources necessary to enable the State Ombudsman toprovide education and training in effective administrationpractice and complaint handling.

2. Pending the completion of the management review, temporary staffshould be allocated immediately to the State Ombudsman’s office toreduce the backlog of complaints.

3. There should be more face to face contact between investigationofficers and complainants, as well as between investigation officersand the agencies involved, as a means of improving complaintresolution.

4. The performance indicators for the State Ombudsman’s office shouldinclude details of recommendations made to each agency andwhether these have been acted upon.

5. The State Ombudsman should commission regular independentsurveys of both complainants and agencies to determine theirsatisfaction concerning the State Ombudsman’s service. The surveyresults should be submitted to the proposed Legislative CouncilPublic Administration Committee for tabling in Parliament.

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5.3 JURISDICTION

5.3.1 CLOSING THE GAPS

5.3.1.1 Issues for Consideration

In Section 4.1 we outlined the circumstances in which we were asked to consider thejurisdiction of the State Ombudsman and our reasons for broadening the inquiry to includethe entire role, function and purpose of the office. The State Ombudsman hasrecommended that, apart from a few justified exceptions, his jurisdiction should embraceall departments and agencies in the public sector. Apart from closing the so called gaps inthe State Ombudsman’s jurisdiction, there are four other matters of jurisdictional interest:

• indirect provision of services by government and the activities of government tradingenterprises;

• the police;

• judicial or quasi-judicial bodies; and

• the protection of complainants.

5.3.1.2 Actions to Date


5.3.1.3 Public Submissions

The State Ombudsman, in his first written submission to COG (March 1995), stated:

A relatively simple means of removing the anomalies and omissions would be to changethe basis of jurisdiction from that of inclusion to one of exclusion. In other words stateagencies would automatically fall within jurisdiction unless expressly excluded byparliament.

The State Ombudsman has proposed a formula for inclusion which is in line with thesystem used in most Australian jurisdictions. He has recommended that the PCA shouldapply, subject to very limited exceptions, to:

• all state government departments (that is, all departments of the public service);

• all local authorities in the state (as defined to include Commissioners appointedunder the Local Government Act 1960); and

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• all public authorities (as defined to include all authorities, other than (a) and (b)above, listed in the existing schedule to the Parliamentary Commission Act, togetherwith many others presently outside the State Ombudsman’s jurisdiction).

To ensure maximum accountability, the State Ombudsman said there should be fewexceptions. These should be: the Parliament; courts of law (including the Coroner); theAuditor General; officers of the establishment of the Governor; and the Agent General andhis staff.

The State Ombudsman has considered various legislative formulae and concluded that thepreferred approach is that currently in place in Queensland. The ParliamentaryCommissioner Act 1974 (Qld) defines ‘agency’ to include:

• a department, a local authority and a public authority;

• a person or body declared by regulation to be an agency;

but not to include

• a person or body declared by regulation not to be an agency.

The Queensland option appeals to the State Ombudsman because the definition of‘agency’ clearly identifies the main elements for automatic inclusion, namely,departments, local authorities and public authorities. In addition, a definition of ‘publicauthority’ is required and the State Ombudsman has proposed using one similar to thatprovided in the Freedom of Information Act 1992, wherein public body or office means:

(a) a department of the Public Service;

(b) an organization specified in column 2 of Schedule 2 to the Public SectorManagement Act 1994;

(c) the Police Force of Western Australia;

(d) a municipality or regional council established under the Local Government Act1960;

(e) a body or office that is established for a public purpose under a written law;

(f) a body or office that is established by the Governor or a Minister; or

(g) any other body or office that is declared by the regulations to be a public body oroffice being –

(i) a body or office established under a written law; or

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(ii) a corporation or association over which control can be exercised by theState, a Minister, a body referred to in paragraph (a), (b), (e), (f) or (g)(i), orthe holder of an office referred to in paragraph (f) or (g)(i). (Glossary,Schedule 2)

The merit of the definition is seen by the State Ombudsman to be the inclusive effect ofparagraphs (e), (f) and (g), which would serve to bring in most of the specific agencies andgroups of agencies currently omitted and would not require extensive re-drafting of thePCA.

There was overwhelming support for closing the gaps in the jurisdiction of the StateOmbudsman. Most submissions reflected the view that the jurisdiction should cover theentire public sector with few exceptions.

A written submission from the Town of Albany stated the Council had:

resolved to support the proposal to extend the Ombudsman’s jurisdiction to cover theentire public sector. The coverage of the public service sector, with its changing facethrough contracted arrangements and outsourcing, will be in the community’s bestinterest as a single office will handle complaints.

The National Council of Women of Western Australia (Inc.) wanted all governmentagencies to be included in the sphere of the State Ombudsman’s jurisdiction with theexception of the Auditor General and the Official Corruption Commission.

The Equal Opportunity Commissioner, Ms June Williams, stated that the processes used inadministering the Equal Opportunity Act 1984 should be equally subject to public scrutinyas the processes relating to the other legislation.

Mr John Pritchard, the Acting Director General of the Ministry of the Premier and Cabinetadvised us that the government was concerned to arrive at a position that ensured that thescope of State Ombudsman’s jurisdiction was sufficiently broad to:

• generally include all government agencies, local authorities and statutory authorities;

• have an ‘automatic trigger’ that would see all government bodies included unlessspecific action was taken for exemption;

• minimise exclusions (limited for example to those where accepted privilegeconventions would apply); and

• provide the Parliament with the opportunity to examine claims for exemption.

On the basis of discussions with stakeholders, the government has prepared draftinginstructions for legislative amendments, which are awaiting a bill to be drafted.

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A number of people not satisfied with the State Ombudsman’s service opposed extendingthe jurisdiction on the basis that delays, poor communication and poor investigationsalready occur. This would be exacerbated by an extended jurisdiction. Mr Peter Hesse, ina written submission, told of the delays he had experienced and said that he opposedextending the jurisdiction while there was a backlog of problems. Similar sentiments wereexpressed in written submissions by Mrs Doreen Trainor, representing the River DistrictsAssociation, and Mrs Nancy Hall.

Mr Roy Little’s concerns were different and at the regional seminar held at Merredin hesaid:

I think one of the very good things about the ombudsman at this stage is that it is a smallunit and he keeps a hands-on approach ... If we extend his jurisdiction too far, we’regoing to get away from all that and we’re just going to get back to another tribunal. I justthink in the longer term it will fail because it’s just too big; ... how big can it get beforeit’s not very efficient?

5.3.1.4 Analysis

While we have paid due regard to submissions advocating no extension to the StateOmbudsman’s ambit, the jurisdictional question is a separate issue to the build-up ofincomplete investigations. The backlog of complaints should not be used as a factor in thedetermination of the State Ombudsman’s jurisdiction. The central issue before us is toensure everyone in the community can lodge claims with the Ombudsman, regardless ofthe agency involved. To do otherwise would deny some people an avenue ofadministrative justice, merely because the agency concerned happened to be excludedfrom the State Ombudsman’s jurisdiction. This would not be consistent with seekingproper accountability throughout the public sector.

The State Ombudsman’s jurisdiction should embrace the entire public sector and onlyParliament should determine any exceptions. Definitions for agency and public body oroffice (except for police), should be those set out in the Queensland ParliamentaryCommissioner Act 1971 and the Western Australian Freedom of Information Act 1992,respectively.

We have addressed the question of the State Ombudsman’s case backlog and theappropriate resources for his office in Section 5.2.

In order to manage an enlarged jurisdiction, the State Ombudsman must have sufficientresources. In later sections we make recommendations about resource implications. Themanagement review recommended in Section 5.2.5 should determine the appropriate levelof resources.

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5.3.1.5 Recommendations

1. The Parliamentary Commissioner Act 1971 should be amended sothat the jurisdiction of the State Ombudsman includes the entirepublic sector except those departments and agencies specificallyexcluded by Parliament.

2. The definition of agency in the Queensland ParliamentaryCommissioner Act 1974 and the definition of public body or office,with the exception of the Police Force, in the Freedom of InformationAct 1992 should be used as the basis of the proposed amendments.

5.3.2 THE INDIRECT PROVISION OF SERVICES BY GOVERNMENT ANDGOVERNMENT TRADING ENTERPRISES


In Western Australia, the Independent Commission to Review Public Sector Financesstated that:

Competitive tendering supports the principle of open and accountable governmentbecause it provides accurate information about services and gives the community theopportunity to assess services provided against standard which are clearly specified.(WA, Independent Commission to Review Public Sector Finances, 1993: II 31-32)

Where the government is not directly responsible for the delivery of a service, theParliament and the public can lose their ability to demand accountability from thegovernment, as it is no longer the service deliverer. Senator Cheryl Kernot has expressedconcern that:

When a service – or a function – is contracted-out, it is all too easy for governments tosimply deny they have any responsibility for it ... when those services are criticised forunacceptable delays. ‘Oh, it’s not our responsibility,’ the Government says, ‘it’s up tothe contractors’ ... But of course, it’s taxpayers’ money which is involved – and itconstantly amazes me how governments manage to gloss over that fact. (Kernot,1995: 12)

In accordance with the Government’s Competitive Tendering and Contracting (CTC)policy (Circular to Ministers No 46/93 and 46/94), the range of services delivered bycontractors on behalf of the government is increasing. Improvements in efficiency andcost-effectiveness are often cited as the main reason for adopting CTC. In WesternAustralia, the CTC program has been ‘estimated to provide savings of $90 million perannum’ (Treasury, 1995: 81).

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In an attempt to ensure that contracts are subject to appropriate parliamentary scrutiny, theStanding Committee on Government Agencies (SCGA) has proposed the enactment of aState Agencies Bill. In that Bill, the SCGA proposes that private organizations shouldqualify as ‘agencies’ to the extent that they provide public services or programs undercontract or agreement, or carry on their operations using public money received by way ofgrants (1994: 4). To provide what it considered to be an appropriate level ofaccountability, the SCGA proposed that each ‘agency’ should be subject to the FinancialAdministration and Audit Act 1985 (to the extent that a statutory corporation is subject tothat Act), to the Parliamentary Commissioner Act 1971 and the Freedom of InformationAct 1992 (cl.5 draft State Agencies Bill) (SCGA, 1994).

In 1995, the Hon. Yvonne Henderson MLA, Shadow Minister for Public SectorManagement, Consumer Affairs and Heritage, tabled in Parliament a Scrutiny ofGovernment Contracting Out and Privatisation Activities Bill 1995. This Bill provides fora cost-benefit analysis to be conducted before any contract over $50,000 is made by agovernment agency. These cost-benefit analyses would be submitted for parliamentaryapproval after review by the Auditor General.

In Report No. 1, we addressed the means of ensuring the accountability of services andfunctions contracted out in relation to secrecy and the role of the Auditor General. Wemade the following recommendations:

Recommendation 11 Commercial Confidentiality

1. Upon the awarding of a Government contract, regardless of whether the contractinvolves the commitment for expenditure, the charging of a royalty, or thesacrifice of revenue rights, a copy of the complete contract should be lodged withthe State Supply Commission or tabled in a House of Parliament for publicinspection; and

2. That the State Supply Commission guidelines should provide that as a pre-condition of doing business with government, tenderers must be prepared to havethe details of contract made public. These guidelines are to be applicable acrossthe public sector and include GTEs and should encompass public sector agenciesand GTEs not currently the subject of State Supply Commission Review. (COG,1995: 3)

Recommendation 30 Competitive Tendering

The Auditor General Act proposed in Section 6.1, should provide for the AuditorGeneral’s access to all information in the control or possession of private organisationsrelevant to the provision of publicly funded goods or services. (COG, 1995: 10)

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At a Phase 1 Perth public hearing, the State Ombudsman argued that:

... my jurisdiction should be wide enough to allow investigation of complaints wheregovernment money is being used to provide public services.

The State Ombudsman’s concerns have also been raised by the CommonwealthOmbudsman. In a background paper prepared for the Industry Commission’s 1995 inquiryinto the contracting out of government services, the Commonwealth Ombudsman arguedthat with ‘core’ services increasingly being subjected to contracting out, her jurisdictionshould be extended to allow for effective accountability for government services providedindirectly through contract arrangements.

In Western Australia the corporatised utility agencies, AlintaGas, Western Power, and theWater Corporation are subject to the jurisdiction of the State Ombudsman. The StandingCommittee on Uniform Legislation and Intergovernmental Agreements (SCULIA)recently completed its review of the implementation of National Competition Policy(SCULIA, 1996). The Committee welcomed deregulation but expressed concern that thecorporatisation of government trading enterprises (GTEs) could mean that they were nolonger accountable. The Committee pointed out that both the PCA and the Freedom ofInformation Act 1992 currently applied to government trading enterprises but that thiswould not be the case if government business enterprises were incorporated under theCorporations Law.

The Committee was concerned that neither the National Competition Policy ReformCommittee (Hilmer Committee) or the Competition Policy Reform Act 1995 addressed theissue of consumer remedies and accountability after corporatisation or privatisationoccurred. Another important issue for the Committee was the way in which the traditionalmeans of accountability of ministerial direction and parliamentary scrutiny aresignificantly altered by corporatisation or privatisation. To ensure that corporatised orprivatised utilities are properly accountable, the Committee recommended:

That industry-specific Ombudsmen be established to investigate and resolve complaintsinvolving a range of issues, including quality of service, billing, disconnection ofservices provided by the specific utility. (SCULIA, 1996: 78)

In Victoria, the State Owned Enterprises Act 1992 provides that a State-owned enterprisecan be removed from the Ombudsman’s jurisdiction by being prescribed under theprovisions of s.90(2) of the Act. As a result, several activities have ceased to be subject tothe Victorian Ombudsman’s jurisdiction. Electricity supply is no longer subject to thejurisdiction of the Victorian Ombudsman and complaints are referred to the supplycompany or the Victorian Office of Fair Trading, although an energy ombudsman is beingconsidered. In New South Wales, a Licence Regulator monitors the compliance of State-owned corporations with certain conditions. In addition, corporations continue to besubject to administrative and regulatory laws, including the New South WalesOmbudsman.

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In a written submission, the State Ombudsman stated:

My view on scrutiny of the government’s relationship with the private sector is that,whenever public money is being expended whether by a government department oragency, or by a private body acting at the direction or with the authority of thegovernment department or agency, that government department or agency should bepublicly accountable.

He went on to say:

It seems to me to be entirely appropriate that a government department or agency, incontracting out one of its public functions to a private body, should be accountable, atthe very least, for the administrative actions involved in its selection and engagement ofcontractors is general handling and oversight of the arrangements made under thecontract; or the termination of the contract where appropriate.

There was wide support for the State Ombudsman having jurisdiction when governmentmoney was being used to provide public goods and services. In a written submission, MrPaul Bartholomew, the Acting Chief Executive Officer of the Disability ServicesCommission, said that:

When goods and services are provided by private sector organizations, on behalf of theState Government there should be full scrutiny by the Ombudsman.

Mr Bartholomew went to say that if this is not the case there are problems for consumers,including knowing where to address a complaint and in obtaining information, because theprivate sector is not subject to the Freedom of Information Act 1992.

In a written a submission the Committee for Citizens Rights and Actions told us that theybelieved that:

... the ombudsman should have the right to examine issues that originate fromcontractual arrangements, as citizens are often affected.

The Citizens Advice Bureau expressed concern about the accountability of the non-government sector delivering service on behalf of government, particularly for family andchildren’s services:

... it may be more appropriate for a neutral third party such as the Ombudsman toinvestigate some complaints relating to these agencies ...

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In a written submission, the Deputy Premier, the Hon. Hendy Cowan MLA, stated that:

The Ombudsman should have the power to investigate any non-government agency orindividual who is contracted to provide a service on behalf of the State, including theState Trading Enterprises. The jurisdiction should extend to the expenditure of publicmoney provided to the non-government agency or individual under the contract, as wellas the standard of delivery of the contracted service. The jurisdiction should not extendinto the business of the non-government agency or the individual if it is unrelated to thecontract.

The Western Australian Building Management Authority (WABMA), while supportingthe extension of the State Ombudsman’s jurisdiction to the entire public sector, hadconcerns about the scrutiny of private sector organizations providing goods and serviceson behalf of government. In a written a submission the WABMA stated that:

The public sector agency contracting the goods or service provision to the private sectorshould be held responsible regarding the contracting process, contracting terms andconditions, and performance of the contract. Any questions of performance should thusbe taken up with the responsible public sector agency.

Any intervention by the State Ombudsman into contractual matters may:

(i) create a perception of an expanded public sector, thus, conflicting with currentGovernment objectives;

(ii) set a precedent for intervention into wide ranges of contracts such as building andconstruction contracts, in addition to contracts for management services; and

(iii) present significant risks to Government in exercising of the extended powers,particularly as private sector practices conflict significantly with public sectorrequirements in many areas. For example, the use of sole suppliers by privatesector organisations when sub-contracting work is consistent with normalGovernment practice.

In his written submission, Professor Geoffery Caiden of the University of SouthernCalifornia pointed out that model ombudsman legislation, being developed for use in theUnited States of America, requires contractors delivering state services to submit to thejurisdiction of the ombudsman with respect to the provisions of those services.

In a written submission, the Auditor General, Mr Des Pearson, told us that the StateOmbudsman and the Auditor General both needed access to relevant information held byprivate organizations providing publicly-funded goods and services:

Such access is also essential for the Ombudsman to enable scrutiny of the process bywhich any contract was awarded, that the terms of the contract were fair and reasonableand that the contract was performed according to the terms of the contract.

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In a separate written submission the Auditor General proposed that the:

... insertion of an ‘agency clause’ in the Parliamentary Commissioner Act would bebeneficial in that it would allow the State Ombudsman to investigate the administrativeactions of entities acting on behalf of a public sector body.

In relation to Government Trading Enterprises, the State Ombudsman wrote that:

As a rule ‘corporatised’ GTEs should be, and should continue to be, within theOmbudsman’s (and the Auditor General’s) jurisdiction ... It is essential that newstatutory bodies (whether or not they have been ‘corporatized’) should be included in myjurisdiction.

In his written submission, Mr Jim Gill, Managing Director of the Water Corporation, toldus that the recent changes to the water industry had resulted in the setting up of the Officeof Water Regulation with functions and powers that, to a great extent, duplicate those ofthe State Ombudsman with, in most circumstances, power to implement changes. Mr Gillstated that:

It could therefore be argued that the Water Corporation should be exempt from theOmbudsman’s jurisdiction on the basis that the Coordinator of Water Regulations hasincluded in his/her responsibilities this role and has more specific industry knowledge aswell a greater ability to influence and change practices and processes of the WaterCorporation where necessary. The Office of Water Regulation would itself be subject tothe jurisdiction of the Ombudsman.

Mr Gill also wrote that the Water Corporation has a significant amount of its work carriedout by the private sector and would be opposed to any suggestion that those contractorsshould be subject to the jurisdiction of the State Ombudsman:

More importantly, the organisation for whom the contractors are providing the service,in our case the Water Corporation, retains the responsibility and accountability forensuring the needs of its customers are met and that the processes that deliver theseservices are fair and reasonable. Any issues relating to private contractors or serviceproviders should be the responsibility of the organisation concerned and theaccountability for responses to any enquiries from the Ombudsman must be from theorganisation charged with the responsibility, rather than the contractor.

It is, therefore, our belief that the Water Corporation, contractors and private serviceproviders should not be subject to the jurisdiction of the Ombudsman. The Corporationshould be answerable only to the Office of Water Regulation for both its performanceand that of its contractors.

In his written submission, Mr David Eiszele of Western Power, told us that the StateOmbudsman handles complaints against Western Power. These often take months tocomplete as there can be a four to six week delay from a letter being received at the StateOmbudsman’s office and being forwarded to Western Power. Mr Eiszele said that:

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A fundamental underlying principal of corporatisation is that there be competitiveneutrality. The Ombudsman’s jurisdiction only covers public sector organisations. Itdoes not cover privately owned companies that seek to compete with Western Power inelectricity generation and supply. It is submitted that this represents a serious inequitysince Western Power is subject to oversight by the Ombudsman whereas our competitorsare not.

He went on to recommend, for the reasons set out below, that a specialist ombudsmanshould be established to handle all complaints about energy supply companies andcontractors performing outsourced work:

• Competitive Neutrality;

• Ensuring all customers have an independent official to review and if necessaryconciliate on complaints made [emphasis in original];

• It will allow staff of the energy Ombudsman to gain the necessary understandingof what is often a complex technical system;

• It will remove energy complaints from the jurisdiction of the Ombudsman whichwill reduce that official’s work load and backlog; and

• With an adequate publicity campaign concerned the role of the energyOmbudsman’s official role this would relieve the Minister’s office of the burdenof dealing with correspondence about Western Power customer concerns;

5.3.2.4 Analysis

Government goods and services delivered by private contract raise issues ofaccountability. There are fears that contracting out of goods and services may also be acontracting out of responsibility and that aggrieved consumers may have no avenue tolodge complaints or seek redress. There was consensus for the State Ombudsman havingjurisdiction when government money is used to provide public goods and services. Ingeneral, it was thought that the jurisdiction should extend to the expenditure of publicmoney, compliance with contractual obligations and the standard of service delivery.There was disagreement as to whether or not the State Ombudsman should have access toinformation held by private organizations providing publicly funded goods and services.The Auditor General argued that both he and the State Ombudsman required that access toensure accountability. Others opposed any intervention by the State Ombudsman intoprivate organizations and emphasised the importance of the government agency takingresponsibility for its contracts.

It is essential for the State Ombudsman to be able to scrutinise the activities associatedwith outsourcing. The PCA should be amended to ensure that, upon the awarding of agovernment contract that involves a commitment of expenditure, a charging of a royalty,or the sacrifice of rights, the State Ombudsman automatically gains jurisdiction. An

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‘agency clause’ such as suggested by the Auditor General has merit and should beincluded in the PCA.

The State Ombudsman, the Auditor General, the Deputy Premier, and many citizens andconsumers said that government trading enterprises (GTEs) should be subject to thescrutiny of the State Ombudsman. This was opposed by representatives of the WaterCorporation and Western Power who argued that industry-specific accountability waslikely to be more effective and provide better expertise than the State Ombudsman.Importantly, it would reflect the principle of competitive neutrality underlyingcorporatisation.

We have considered the arguments for and against GTEs being subject to the scrutiny ofthe State Ombudsman. On balance, the competitive neutrality principle must not outweighthe necessity of government organizations, corporatised or not, being subject to thescrutiny of the State Ombudsman. All statutory authorities, whether corporatised or not,should be subject to the jurisdiction of the State Ombudsman.


1. The Parliamentary Commissioner Act 1971 , should be amended toensure that upon the awarding to a private sector organization of agovernment contract involving a commitment of expenditure or thesacrifice of rights, the jurisdiction of the State Ombudsman shallapply.

2. To allow the State Ombudsman to investigate the administrativeaction of entities acting on behalf of a public sector body, an agencyclause should be inserted in the Parliamentary Commissioner Act1971.

3. Statutory authorities, whether corporatised or not, should be subjectto the jurisdiction of the State Ombudsman.

5.3.3 COMPLAINTS AGAINST THE POLICE


In Australia, responsibility for the oversight of the investigation of complaints againstpolice varies. In Western Australia, the Northern Territory, Tasmania, and the AustralianCapital Territory the office of the ombudsman has this role. In Victoria, there is a DeputyOmbudsman (Police Complaints), and in South Australia there is a separate PoliceComplaints Authority. In Queensland, the Criminal Justice Commission oversees theinvestigation of complaints against the police.

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In New South Wales, the Ombudsman has the external oversight of complaints against thepolice. If corruption is suspected, it must be reported to the Independent CommissionAgainst Corruption (ICAC). The Royal Commission into the New South Wales PoliceService (the Wood Royal Commission) was established in May 1994 to inquire into thenature and extent of corruption within the New South Wales Police Service. As a result,the system of ombudsman oversight became the subject of much debate. The New SouthWales Ombudsman made a number of submissions to the Wood Royal Commission, thetheme of which was that:

... there is a fundamental difference between complaint handling and corruption fighting.The police complaints system was not designed as a corruption fighting system. TheOmbudsman’s primary role is to oversee police handling of complaints about the use ormisuse of police powers. (New South Wales, Ombudsman 1995: 8)

The New South Wales Ombudsman was concerned that the need to deal with seriouscorruption should not be at the expense of the public’s right to have complaints about day-to-day policing issues properly addressed. In her view, dealing with complaints andfighting corruption are two separate functions involving different procedures,investigation techniques, levels of communication with the public, secrecy requirementsand different natural justice requirements. As less than 10 per cent of allegations in NewSouth Wales were about corrupt activity, and as the New South Wales Ombudsman sawher office as having an excellent reputation in relation to the oversight of day-to-daypolicing, she strongly recommended that issues of day-to-day police conduct continue tobe handled by her office.

The Interim Report of the Wood Royal Commission was released in February 1996. Itreported that most submissions to the Commission supported the past performance of theNew South Wales Ombudsman as an independent office, which enjoyed the confidence ofthe public and provided a forum for dealing with complaints of police misconduct andcustomer service.

Commissioner Wood concluded that, despite the presence of a number of accountabilityagencies, including an ombudsman, a serious corruption problem and an unhealthy policeculture existed and that a ‘focused, sophisticated and aggressive approach is necessary touncover and combat serious police misconduct and corruption’ (Wood RoyalCommission, 1996: 88). A number of models were considered:

• complete self-regulation;

• a single external agency similar to the CJC of Queensland;

• internal investigation with external oversight; and

• combination of internal and external investigation.

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The Commissioner concluded that the model required was one in which the police serviceretains a meaningful role in dealing with management matters, customer servicecomplaints, and certain matters of misconduct. In addition, there needs to be bothoversight of the police service, and an external responsibility to investigate seriouscorruption.

Commissioner Wood acknowledged that combining external oversight and corruptioninvestigation responsibilities in a single agency had the attraction of simplifying andintegrating the process. This option was rejected because of:

• the different approaches needed for supervision of the complaint system, and forcorruption investigation;

• the need for a specific focus on corruption with an aggressive and sophisticatedinvestigative capacity; and

• the resources needed for effective monitoring of the complaint system.

Instead, Commissioner Wood has recommended the creation of a Police CorruptionCommission (PCC) to focus on the investigation of serious police misconduct andcorruption. In addition he has recommended that:

• the majority of complaints should continue to be investigated by the Police Serviceunder the oversight of the Ombudsman, whose existing powers should continue; and

• the Ombudsman and the PCC should conduct audits of the Police Service internalinvestigations, where appropriate in conjunction with each other.

Commissioner Wood proposes distinguishing serious misconduct and corruption frommisconduct. The great majority of misconduct matters would be investigated by the PoliceService with oversight by the New South Wales Ombudsman. He suggested that theOmbudsman’s police supervision function would be significantly improved if itestablished an Aboriginal Complaints Unit. Thus, in effect, with the exception of someminor changes, the Wood Royal Commission has the New South Wales Ombudsmanretaining her existing role in monitoring and reviewing police internal investigations, andin reporting to Parliament on issues concerning the exercise of police powers.

In Report No. 2, Part 1 (COG, 1995a), we considered the relative merits of the variousmodels for civilian oversight of the investigation of complaints against the police. Weconcluded that, on balance, an independent, properly empowered police complaintsinvestigatory body was required and much was to be gained from relieving the StateOmbudsman of his police oversight responsibilities. It was our view that the StateOmbudsman should be able to concentrate on matters of administration.

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We recommended that the proposed Commission for the Investigation, Exposure andPrevention of Improper Conduct (CIEPIC) should receive, oversee and investigate allcomplaints against the police. Complaints could still be lodged with the police, who wouldinvestigate minor matters involving manner, procedure or attitude (Recommendation 69).




The State Ombudsman has rejected the CIEPIC proposal in a letter to the PresidingOfficers of the Parliament and in written and oral submissions to us. In a writtensubmission, he stated that:

It appears that this Recommendation has been made largely as a consequence of theCommission’s philosophy that CIEPIC should have an all-embracing, comprehensiverole in relation to the investigation, exposure and prevention of improper conduct (hencethe title proposed for the new organisation). But it seems to me that the Commissionmay well have drawn support for its proposal that the police complaints role be removedfrom my office from its apparent acceptance of at least some of the serious criticismsmade of the way in which my office operates.

The State Ombudsman went on to say:

... the Commission has acknowledged, but chosen to disregard, the fact that, in seven outof nine jurisdictions in Australia, it is the Ombudsman who handles complaints againstpolice, and that in one of the remaining two jurisdictions (South Australia) thecomplaints authority in fact operates as a specialised Ombudsman.

Secondly, in two out of the three jurisdictions evidently favoured by the Commission aspossible models (New South Wales and Hong Kong) it is not the ‘corruption watchdog’but a separate agency which deals with ‘ordinary’ police complaints: in New SouthWales it is the Ombudsman, and in Hong Kong it is the Independent Police ComplaintsCouncil. As regards the latter, it is worth noting the further point that the Hong KongOmbudsman (or the Commissioner for Administrative Complaints, as he is called there)is an ex-officio member of the Council.

Thirdly, I believe there is no doubt whatsoever that my office would perform much moreeffectively in relation to complaints against police if we had the additional powerswhich, unless I am much mistaken, the Commission proposes be given to CIEPIC. Theseare powers which I have been seeking for some years ...

... without adequate resources, no external complaints or review agency will everperform effectively ... based upon my experience and observations as a member of theBoard of International Association of Civilian Oversight of Law Enforcement(IACOLE), is that I am not aware of any external review or oversight agency anywherein the world which would claim to have achieved total satisfaction about the way in

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which is handles complaints against police. The plain fact of the matter is that this is anarea where unjustified expectations are prevalent and where disgruntled complainantswith jaundiced views of the process (whatever form it may take) are by no meansuncommon.

In another written submission, the State Ombudsman drew our attention to the InterimReport of the Royal Commission into the New South Wales Police Service (1996). Hepointed out that the Wood Royal Commission favoured the preservation of the role of theOmbudsman in the oversight of police investigations of less serious allegations and stated:

... it seems to me that the approach recommended by this prestigious Royal Commissionin another major Australian jurisdiction is well worth considering in the WesternAustralia context.

The Western Australian Commissioner for Police, Mr Robert Falconer, in a letter to theChairman of the Official Corruption Commission dated 20 February 1996, a copy ofwhich was forwarded to us for our information, said that all matters alleging policemisconduct or arising from publicly initiated complaints would be answered by the StateOmbudsman’s office. He went on to say that the State Ombudsman:

• must have the resources to assess all complaints investigated by the InternalInvestigations Unit;

• should investigate any complaint against an Assistant Commissioner or higherranking officer;

• should have authority to initiate his own investigations in public interest matters(serious incidents or matters of high profile); and

• should liaise directly with the proposed Assistant Commissioner (ProfessionalStandards) with access to the Commissioner as concerns or problems arise.

5.3.3.4 Analysis

In Report No. 2, Part 1 (COG, 1995a) we recommended the establishment of theCommission for the Investigation, Exposure and Prevention of Improper Conduct(CIEPIC) to investigate, expose and prevent improper conduct. The absence of any propersystem of dealing with impropriety, the inadequacy of the Official CorruptionCommission, the necessity for whistleblower protection, and our view that the StateOmbudsman should concentrate on matters of administration, contributed to thedevelopment of the proposed CIEPIC.

We accept that there is a distinction between the handling of minor day-to-day complaintsagainst the police and the investigation of corruption. We also accept that it isadministratively desirable that senior police retain responsibility for day-to-day

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management and customer service complaints and minor misconduct in the police service.We say, however, there should be external oversight of this process.

The State Ombudsman has suggested that we have recommended CIEPIC as aconsequence of a philosophy that it should have an ‘all embracing comprehensive role andan acceptance of criticisms made of the operations of his office’. The State Ombudsmanhas also reminded us that seven out of the nine jurisdictions in Australia give the oversightof the investigation of complaints against police to an ombudsman, in one form or another.In addition he has pointed out that in two of the models favoured by us (New South Walesand Hong Kong), the corruption watchdog does not deal with ‘ordinary’ policecomplaints.

We are not sure that a mere counting of existing police oversight jurisdictions in thevarious states advances the argument very far. For instance, both the Fitzgerald and WoodCommissions have disclosed endemic corruption and misconduct in police services which,during the periods subject to investigation, were subject to ombudsman review. BothCommissions recommended changes to oversight bodies.

The State Ombudsman is at odds with the findings of the WA Royal Commission and theviews of the majority of people making submissions to us in Phase 2, who saw thedesirability of a single body for the investigation of improper and corrupt conduct,including that of the police. In its Interim Report, the Wood Royal Commission (1996) hasacknowledged the advantages of a single agency but, at this stage has opted for a PoliceCorruption Commission (PCC) and the continuation of the existing role of the New SouthWales Ombudsman in relation to day-to-day complaints.

We are aware of the arrangements in both New South Wales and Hong Kong and the splitbetween the responsibilities for corruption and ‘ordinary’ police complaints. The proposedCIEPIC would retain such a distinction but the oversight of the investigation of minor andserious complaints against the police would be located in the same independent body.Although elements of other models and aspects of the Wood Commission’s approach wereincorporated in the CIEPIC proposals they were developed primarily in response to whatwe perceived to be the need of Western Australia as a result of our investigations. Sincewe recommended CIEPIC in December 1995 events in relation to the Wanneroo CityCouncil matter and the Argyle Diamond enquiry have reinforced our view that a singleindependent body is necessary. We note the Government’s recent announcement thatchanges will be made to the Official Corruption Commission.

The State Ombudsman has suggested that more resources would lead to a more effectiveperformance by his office in relation to complaints against the police, as would theprovision of additional powers, such as we recommended for CIEPIC. Additionally, wenote the Police Commissioner’s position. But we disagree. We believe that theresponsibility for supervising the investigation of minor complaints and complaint againstthe police, including corruption, should be located in a single body. On the basis of

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information before us we conclude that CIEPIC would be the most effective model forWestern Australia. This would enable the State Ombudsman to concentrate on matters ofadministration.


1. Responsibility for the investigation of minor complaints against thepolice should remain with the police but with oversight by theproposed Commission for the Investigation, Exposure andPrevention of Improper Conduct.

2. The investigation of serious complaints against police should be theresponsibility of the proposed Commission for the Investigation,Exposure and Prevention of Improper Conduct.

5.3.4 JUDICIAL AND QUASI-JUDICIAL MATTERS


The term ‘matter of administration’ in the PCA has not been defined and there is debate asto whether or not the administration of courts and tribunals should come within thejurisdiction of the State Ombudsman. The PCA does not define ‘matter of administration’.It provides that the Act does not apply to the various bodies set out in s.13(2), namely:

(a) the Supreme Court, the District Court of Western Australia, the Family Court ofWestern Australia, or any other court of law;

(b) a Judge of the Supreme Court, of the District Court of Western Australia, or of theFamily Court of Western Australia, or any person acting in the office, or executingthe functions of, the Master of the Supreme Court, the Principal Regulator or aRegistrar of the Supreme Court, the Registrar of the District Court, or theRegistrar or a Deputy Registrar of the Family Court;

(c) a commissioner of any court or a stipendiary magistrate;

(d) a coroner; or

(e) the Auditor General.

The extent of the exclusion and whether or not it applies to administrative actions taken bythe bodies named is not clear. In the Victorian case of Glenister v Dillon (1976), the courtmade a distinction between the executive and other arms of government. Gillard, J. stated:

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In my view the word ‘administration’ in this definition denotes the performance of theexecutive function of government referred to in such dictum and was never intended tocomprehend any activity (or inactivity) in the area of the performance of the judicial orlegislative functions of government ... I am of the opinion that the expression ‘a matterof administration’ means any subject that should arise in the course of administration, orputting it another way, in the performance of the executive function of government.(558)

In Booth v Dillon (No. 3) [1977] VR 143, the Victorian Ombudsman was deemed to havethe jurisdiction to investigate the actions of a prison governor in hearing and determiningprison charges. This was because these were seen as being related to the management anddiscipline of the prison. Nelson J stated:

I agree ... that the first broad distinction to be drawn is that between acts which mayproperly be described as falling within the performance of the executive function ofgovernment and those which fall within the performance of the legislation and judicialfunctions of government. (144)

The Victorian Supreme Court looked at that part of government with which theproceedings were associated. It was not concerned with the particular complaint and didnot attempt to determine whether it was administrative or judicial. Rather, it identified thearm of government where the complaint arose and, on that basis, reached a determination.The exclusion of matters relating to the administration of justice was seen as consistentwith the doctrine of the separation of powers.

On the other hand, Federal Court decisions have determined that certain actions ofmagistrates, registrars and prosecutors have been of an administrative character, despitetheir association with matters of justice (Foord v Whiddett (1985) 60 ALR 269 andEmanuel v Cahill (1987) 71 ALR 302). Recently in Western Australia, the Senior Refereeof the Small Claims Tribunal has been disputing the right of the State Ombudsman to havejurisdiction in relation to the administration of the Tribunal. The State Ombudsman hasindicated that, in his opinion, actions on which he has sought a report are clearly‘administrative’. To clarify the situation, the State Ombudsman sought an opinion fromthe Solicitor General. This was provided in September 1995, the conclusions being:

• the Small Claims Tribunal is not ‘a court of law’ for the purpose of s.13(2) of thePCA;

• the tribunal is not subject to investigation by the State Ombudsman as it is not adepartment of the Public Service and is not otherwise referred to in the Schedule tothe PCA;

• the Registrar of the Tribunal is not a constituent part of the Tribunal but rather is anofficer or employee of a department of the Public Service, namely the Ministry ofJustice; and

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• as a result, the actions of the Registrar may be investigated, but only in so far as theyare concerned with matters of administration. To the extent that those actions are onbehalf of the Tribunal, s.14(7) of the PCA provides that any investigation may notcall into question the merits of the Tribunal decision.

At recent meetings of the Australasian and Pacific Ombudsmen an ombudsman’sjurisdiction in relation to courts and tribunals has been discussed, to some extent becauseof the emerging difficulty with the Western Australian Small Claims Tribunal. At theHong Kong conference in October 1995, the State Ombudsman presented a paper entitled‘Jurisdiction of the Ombudsman in relation to the Staff of Courts and Tribunals’ (StateOmbudsman, 1995a). The State Ombudsman compared the different practices in placessuch as Finland, where the Ombudsman can consider both adjudicative and administrativeactivities of the courts, and Canada where such an approach would be seen to underminethe independence of the judiciary. One former Victorian Ombudsman expressed strongsupport for the notion of a Judicial Ombudsman and the State Ombudsman concluded thatthis might be worth considering.




In his written submission Mr Robert Burton, the Senior Referee of the Small ClaimsTribunal, submitted to us that the State Ombudsman should have no power to investigateany public servant working for a court or a body exempted from the State Ombudsman’sjurisdiction. He also submitted that this should apply to any tribunal which makes a finaldecision about any matter. He expressed the view that the PCA precluded the StateOmbudsman from any investigation of any public servant relating to an administrativematter where the body is a court or not in his list of authorities that he can investigate. Atthe public hearing in Perth, he confirmed that his fundamental concern was that theseparation of powers would be compromised if the State Ombudsman were to exercisejurisdiction.

In a written submission, the State Ombudsman told us that the argument for excludingtribunals had been overstated. Just because a body may have some or all of the attributesof a tribunal does not necessarily mean that it should be excluded from his jurisdiction.The State Ombudsman confirmed that matters of adjudication were not covered by thePCA but that, in his view, the administrative actions of courts and tribunals were covered.To avoid any doubt as to whether the State Ombudsman should have the power toexamine the administrative actions of tribunals, he suggested a formula:

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Matters which should be outside jurisdiction

The proceedings and decisions of those tribunals:

(i) required by statute to be presided over by a judge (or former judge), magistrate orlegal practitioner of not less than 7 years’ standing; and

(ii) having power to compel the attendance of witnesses and hear evidence on oath oraffirmation.

Matters which should be within jurisdiction

(i) Administrative actions which are incidental to tribunal proceedings - for example,failure to answer correspondence or failure to provide an adequate response toreasonable notice of inability to attend hearings;

(ii) Administrative actions to give effect to tribunal decisions - for example, failure torespond adequately to notice of a practical inability to comply with an order.[emphasis in original]

In another written submission, the State Ombudsman reiterated that court staff, that is thepublic servants that assist the courts, have always been and should be within jurisdiction.He stated:

The definition of ‘department’ in the PCA includes the officers and employees of theMinistry of Justice. Section 14(7) of the PCA makes it clear that I am able to investigatethe actions of officers and employees of an agency which is within jurisdiction, eventhough the actions may have been taken on behalf of an agency (such as a court or atribunal) which is not within jurisdiction.

The State Ombudsman went on to describe the situation with the Small Claims Tribunalas:

... nothing more than a petty demarcation dispute which continues to be time-consumingand diverts my staff from their proper function. It flouts the principles of publicaccountability and, equally importantly, leaves members of the public with no avenue ofreview of the administrative actions of the staff concerned. [emphasis in original]

The Hon. P.J. Sharkey, President of the Western Australian Industrial RelationsCommission, in correspondence to us, said that he did not agree with the StateOmbudsman either having, or being given, jurisdiction over a tribunal’s staff or with thesuggested formula. Judge Sharkey pointed out that:

... it would be inappropriate and incompatible with the independence of the Commission

... if the Executive or the Parliament through the Ombudsman were to be in a position tosupervise the Commission’s staff acting as the Commissioner’s agents.

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The President does not accept that what the State Ombudsman calls ‘administrativeactions’ are in fact that. He told us that:

The registry of the Commission or of another court or tribunal is an instrument of theexercise of the Commission or of any court of tribunal’s jurisdiction, and any act done inrelation to matters within the jurisdiction of the tribunal in, for, or on behalf of theregistry are not administrative acts. What occurs is that officers (and other staff) of theregistry are dealing with documents and matters affecting or relating to the jurisdictionof the Commission in accordance with the Act (prescribing this Commission or a court’sjurisdiction) and the practices and procedures which apply, pursuant to rules of court orthe regulations of the Commission. They are an integral part of the Commission’sexercise of its jurisdiction.

In correspondence to us, Chief Commissioner W.S. Coleman of the Western AustralianIndustrial Relations Commission, stated that he believed that as a court of record, theIndustrial Relations Commission should not be treated differently from other courts in thestate. In his view, officers of the Department of the Registrar are publicly accountable fortheir administrative acts and omissions in the same way as public servants employed ascourt staff. He distinguished the situation when the officers were acting under directionsmade by Commissioners. In those circumstances, administrative acts ‘directly relate tomatters within the jurisdiction of the Commission’ and the Ombudsman’s interest wasthereby excluded. He went on to say:

It is, however, the Commissions prerogative to program the work of Chambers havingregard to a range of matters including the competing demands for attention to be givento urgent issues ... These administrative acts should remain outside the jurisdiction of theOmbudsman as they are incidental to the adjudicative role of members of theCommission.

The Chief Commissioner made specific comment on the suggestion by the Ombudsmanon matters which should be outside jurisdiction. He observed that:

The proposed formula would not be sufficient to exclude the “proceedings and decision”of the Commission from the Ombudsman’s jurisdiction given the terms under which theCommission is constituted and the particular expertise recognised under the IndustrialRelations Act for Commissioner’s appointments.

In his written submission Mr Robert Lindsay, the Deputy Director of the Legal AidCommission of Western Australia, told us he was also concerned with the separation ofpowers:

... it seems hardly appropriate that the Parliamentary Commissioner, who represents anarm of the executive should be able to investigate decisions of quasi-judicial bodies suchas Legal Aid.

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The Hon. Mr Justice David Malcolm AC, Chief Justice of Western Australia, gave us hisviews on these matters and, in so doing, was also representing the views of the ChiefJudge of the District Court and the Chief Magistrate. As the State Ombudsman was notseeking an extension of his jurisdiction in relation to courts, the Chief Justice indicatedthat he was content with the jurisdiction in respect to court staff remaining as it is, subjectto some degree of qualification and clarification. He pointed out that in recent years,judges and magistrates have played a much greater role in the management andadministration of the courts:

For example, in the Supreme Court the listing of cases is now regarded as part of thejudicial function, although the administrative work is carried out by Listings Co-ordinators and List Clerks. The policy and priorities to be applied in listing will be set byjudicial officers. In individual cases directions regarding listing will be given to courtstaff by a judge or magistrate.

The Chief Justice also stated:

There are many areas where the distinction between an administrative action and a stepin a proceeding in a court will be difficult to make. This means that the Ombudsmanwill necessarily need to be even more sensitive in the future than he has in the past.[emphasis in original]

5.3.4.4 Analysis

With greater blurring of the managerial and adjudicative functions of courts and tribunals,the heads of judicial and quasi-judicial bodies have become more sensitive to the need todemonstrate clearly that the doctrine of the separation of powers is observed. The StateOmbudsman has been consistent in saying that he is concerned with matters ofadministration not adjudication and is not seeking to extend his jurisdiction.

The Senior Referee of the Small Claims Tribunal and the President of the WesternAustralian Industrial Relations Commission do not accept that matters of adjudication andadministration can be as easily distinguished as the State Ombudsman would suggest.

We accept that the line between the administrative and adjudicative functions of courtsand tribunals is a fine one. We have concluded that it is important that the doctrine of theseparation of powers should continue to apply but that people who have genuinecomplaints about the administrative actions of the personnel of courts or tribunals shouldbe able to have those complaints investigated. However, when the complaints involveofficers acting at the direction of judicial and quasi-judicial office holders, there should beno jurisdiction. We do not favour the formula proposed by the State Ombudsman, but likethe Chief Justice, have concluded that the PCA requires clarification. It should beamended to set out clearly that the State Ombudsman does not have jurisdiction when thestaff of courts, registries or any office subject to the direction of judicial or quasi-judicialoffice holders act on the directions of those office holders.

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5.3.4.5 Recommendation

1. The Parliamentary Commissioner Act 1971 should be amended toensure the jurisdiction of the State Ombudsman extends to theadministrative actions of employees of courts and tribunals onlywhen they are not acting on the direction of a judicial or quasi-judicial officer.

5.3.5 THE PROTECTION OF COMPLAINANTS


To facilitate the making and investigation of complaints of maladministration, theobligations of public sector employees and authorities to maintain secrecy do not apply.The agencies to which the PCA applies are not entitled to rely on legal privileges thatwould otherwise allow them to refuse to disclose information. The State Ombudsman hasconsiderable power to obtain information and, for the most part, is required to maintainconfidentiality.

The State Ombudsman has no power to protect individuals making complaints and, shouldthe content of a complaint become known and be viewed as defamatory or give rise toanother cause of action, there is the possibility of legal action against the complainant. TheState Ombudsman and his officers are protected against civil or criminal proceedings inrespect of their activities under the PCA (s.30(1)).

In other states of Australia, legislation has been introduced to provide protection tocomplainants providing information to an ombudsman. The Protected Disclosures Act1994 (NSW) (PD Act (NSW)) commenced operation on 1 March 1995. The PD Act(NSW) aims to encourage the disclosure of corrupt conduct, maladministration andserious and substantial waste in the public sector. Public officials, in both state and localgovernment, making such disclosures are protected against reprisals.

The PD Act (NSW) provides four avenues for making protected disclosures:

• to one of the primary accountability bodies in the State (that is, the New South WalesOmbudsman, ICAC or Auditor General) referred to in the PD Act (NSW) as‘investigating authorities’;

• to the principal officer of a public authority or investigating authority;

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• to a person (being another public official of that public authority) so nominated in anadopted internal procedure established by public authority for the reporting ofallegations made under the PD Act (NSW); or

• to a member of parliament or journalist, provided the applicable conditions (as setout in s.19 of the PD Act (NSW)) are met.

The New South Wales Ombudsman was nominated as the body who would provide adviceto public officials contemplating making protected disclosures under the PD Act (NSW)and to public authorities seeking guidance on the implementation of the PD Act (NSW).According to the New South Wales Ombudsman, difficulties have been experienced inidentifying protected disclosures. One complication has been disclosures by police officersof conduct that amounts to ‘maladministration’ as defined in the PD Act (NSW). A furthercomplication in relation to internal disclosures by police officers is that such disclosuresare only protected under the PD Act (NSW) if they are made voluntarily.

Where a public official responds to a request from the Ombudsman for advice orinformation about a complaint, and the advice or information constitutes a disclosureshowing ‘maladministration’ as defined in the PD Act (NSW), then technically it is also aprotected disclosure. The confidentiality and notification provisions of the PD Act (NSW)would apply.

The PD Act (NSW) provides that it is to be reviewed by a Joint Committee of Members ofParliament as soon as practicable after the expiration of one year after the date of assent tothe Act. The New South Wales Ombudsman intends to make a submission to that JointCommittee highlighting teething problems with the PD Act (NSW) and suggesting waysto clarify and improve its implementation.

In South Australia, the Whistleblowers Protection Act 1993 (SA) provides for publicinterest information relating to a public officer to be disclosed to the Ombudsman(s.5(4)(g)). Public interest information includes information which tends to show that apublic officer is guilty of maladministration in the performance of official functions.Without the consent of the person disclosing the public interest information, theOmbudsman must not reveal the identity of that person except so far as may be necessaryto ensure that the matters to which the information relates are properly investigated(s.7(1)). If the person disclosing public interest information is victimised, the person maytake civil action or lodge a complaint with the Commissioner for Equal Opportunity (s.9).

The Public Interest Disclosure Act 1994 (ACT) of the Australian Capital Territoryprovides that the Ombudsman is a proper authority to receive a public interest disclosurefrom any person (s.13). A public interest disclosure only includes the most serious cases ofmaladministration. The Ombudsman is required to provide the person making the publicinterest disclosure with information about the protection and remedies available under the

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Act (s.26) and may, on behalf of that person, make an application to court seekingremedies for unlawful reprisal (ss.30, 31).

The Ombudsman in Queensland is an appropriate entity to which a public interestdisclosure may be made under the Whistleblowers Protection Act 1994 (Qld).Maladministration that specifically, substantially and adversely affects someone’s interestsmay be disclosed under that Act (s.8(2)). The employer of the person making the publicinterest disclosure is responsible for establishing reasonable procedures for protecting itsofficers from reprisals (s.44). In contrast to the ACT, the Queensland Criminal JusticeCommission, rather than the Queensland Ombudsman, has the power to make applicationfor remedies against reprisals on behalf of the complainant.




In Phase 2 of our inquiries, the majority of public submissions supported the view thatmaladministration or a matter of administration as defined in s.14 of the PCA, should beregarded as a public interest disclosure. The public submissions also advocated protectionfor whistleblowers and people against whom allegations about a matter ofmaladministration are made.

In his written submission in Phase 2, Mr Robert Eadie, the State Ombudsman, proposedthat maladministration be an area of information which should attract protection for aperson making a complaint. This proposal reflected the general view of the submissionswhich commented on matters of public interest disclosure which should be affordedprotection. Mr Eadie wrote that:

It is important to note that the investigation of ‘matters of administration’ (in effect,maladministration or defective administration) forms the basis of the Ombudsman’sjurisdiction. Use of the term ‘maladministration’ may have the tendency to confuse apotential whistleblower as to the ‘appropriate agency’ with which to lodge a complaintunless, as in section 4 of the SA Act, a list of appropriate authorities is included in anylegislative scheme. [emphasis in original]

Mr Andrew Murray, Deputy Convenor of the Australian Democrats, agreed with themajority of submissions. He stated that maladministration should be a matter covered by awhistleblowing scheme in this State. At a Perth public hearing in Phase 2, Mr Murray alsoreflected the majority view when he proposed legislation to ensure protection of a personmaking a public interest disclosure:

We recommend that legitimate whistleblowing activities should be fully protected; thatwhistleblowers should have a full counselling service, and there we look for counselling

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in two directions. One is as to whether their complaint is legitimate and how it should behandled. The other is the emotional counselling element - and that whistleblowers becompensated where necessary.

At the same public hearing, Mrs Doreen Trainor, who had made a complaint to the StateOmbudsman, said ‘I think there should be some protection for the whistleblower. I’mtalking about the person who is making the complaint’.

Public Concern At Work, a charitable organization assisting whistleblowers in the UnitedKingdom, made a submission in Phase 2 stating that ‘there is no doubt that genuinewhistleblowers deserve strong legislative protection’.

At a Phase 2 Perth public hearing, Mr Robert Eadie reflected the strong support for awhistleblowers’ protection scheme. He suggested the ‘utilisation of the expertise ofexisting agencies to coordinate and operate a whistleblowers protection and advicescheme’. In Mr Eadie’s opinion, the Whistleblowers Protection Act 1993 (SA) satisfies therequirement for protection of those persons making a complaint of maladministration tothe Ombudsman. Mr Eadie also wrote that:

At present, if I an informed by complainants that they have been harassed or victimisedas a direct result of an earlier complaint, the only assistance I am generally able toprovide is to advise that I will deal with the matter as a further complaint and take it upwith the agency concerned. This situation often tends to be unsatisfactory for individualcomplainants and, in general terms, may also be detrimental to the accountabilityprocess.

The State Ombudsman also expressed concern in his written submission aboutconfidentiality saying that:

... the current provisions of the PCA assure that documents or information provided tomy office by a complainant in the course of an investigation will remain confidential tomy office. The confidentiality provisions also allow complainants to air their complaintsto my office in a manner which does not unfairly damage the reputation and standing ofthe persons named in the complaint.

5.3.5.4 Analysis

In Report No. 2, Part 1 (COG, 1995a) we recommended that the State Ombudsman shouldbe a proper authority to receive a public interest disclosure. In that report we alsorecommended that a matter of administration, as defined in s.14 of the PCA, should beinformation which, if disclosed to a proper authority, should be entitled to protectionunder the proposed Public Interest Disclosures Act (Recommendation 73).

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The proposed Public Interest Disclosures Act offered protection for people makingcomplaints about matters of administration. The proposed Act also made public sectoragencies responsible for protecting any employees making a public interest disclosure.

The Protected Disclosures Act 1994 (NSW) nominates the New South Wales Ombudsmanto provide advice to people contemplating making protected disclosures. In Report No. 2,Part 1 (COG, 1995a), we recommended that a separate Unit should be established in theproposed Commission for the Investigation, Exposure and Prevention of ImproperConduct (CIEPIC). We recommended that the proposed CIEPIC should be empowered,with the consent of the person victimised after making a public interest disclosure, to takeany protective action which that person may take on their own behalf. Thisrecommendation was similar to the provisions of Queensland’s Whistleblowers ProtectionAct 1994, which allows for its corruption prevention body, the Criminal JusticeCommission, to make application for protective remedies on behalf of a person making apublic interest disclosure.

We also recommended in Report No. 2, Part 1 (COG, 1995a) that information concerninga public interest disclosure should remain confidential. Confidentiality would protect boththe person making the complaint and the person alleged to have committed anywrongdoing.

We reiterate the recommendations we made to provide for the protection of complainantsto the State Ombudsman. The whistleblowing scheme established by the proposed PublicInterest Disclosures Act should establish an effective means of protection for acomplainant to the State Ombudsman.


1. A Public Interest Disclosures Act, proposed in Recommendation 73,should provide protection for a person making a public interestdisclosure to the State Ombudsman.

5.4 APPOINTMENT, TENURE AND ACCOUNTABILITY


Many commentators have argued that the utmost level of independence from executiveinfluence is necessary for an ombudsman to be, and to be seen to be, free from externalinfluence. Although the State Ombudsman and Deputy State Ombudsman are consideredto be independent accountability agents of the Parliament, the ParliamentaryCommissioner Act 1971 (PCA) provides that the occupants of both positions are appointedby the executive.

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According to commentators, not only the positions of State Ombudsman and Deputy StateOmbudsman should be independent, but the staff of the State Ombudsman’s Office shouldbe also. Staff of the State Ombudsman’s Office are not appointed under the Public SectorManagement Act 1994, but are also specifically appointed by the executive under theprovisions of the PCA.

In Chapter 6 of Report No. 1 (COG, 1995) we made recommendations about the bestmeans to ensure Parliament’s ability to obtain and analyse reliable information aboutgovernment and to ensure the independence of the Auditor General as an independentaccountability agent of the Parliament (Recommendation 32). We also made specificrecommendations concerning the selection process of the position of State Ombudsman(Recommendation 83).




It was agreed that steps need to be taken to ensure the independence of the position of theState Ombudsman and to make that position more directly accountable to the Parliament.It was suggested that the recommendations we made to facilitate the Office of the AuditorGeneral as an independent accountability agent of the Parliament in Report No. 1 shouldalso apply to the State Ombudsman.

In his written submission, Mr Lyndon Rowe, Chief Executive of the Chamber ofCommerce and Industry of Western Australia, stated:

... that the Commission on Government should review its recommendations designed topromote the independence and accountability of the Auditor General in order toascertain whether similar measures are desirable for the Ombudsman.

Mr Rowe continued:

In many respects the role of the Ombudsman closely follows that of the Auditor General.The issues already canvassed by the Commission on Government regarding the AuditorGeneral’s separation from the executive, financial and personal independence andaccountability to the Parliament apply equally to the Ombudsman.

Mr Des Pearson, the Auditor General, supported these views in his written submission. Hesuggested that the position of the State Ombudsman should be more accountable to theParliament:

I consider that the issue of the independence and the proper constitutional standing of theombudsman which was raised, although not considered, in the Part II Report of the [WA

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Royal Commission] warrants consideration. Recognising the important functiondischarged by the ombudsman, I see a number of the recommendations of theCommission on Government made in relation to the independence of the AuditorGeneral (eg selection processes, term of appointment, budget allocation) as havingapplication also to the position of the Ombudsman.

At a Perth public hearing, Mr Robert Eadie, the State Ombudsman, expressed concern thatthe position of ombudsman could be perceived to lack independence because theappointment to that position was made by the executive:

There are even suggestions somehow or other by implication ... that I am part of thepolitical system. Concerns are expressed there about political interference, independencefrom political control.

Mr Eadie expressed the view that:

... although I’m appointed by the Executive, in fact, once appointed I am responsibletotally to the Parliament and not to the executive otherwise, of course, it would be quiteimpossible for me to carry out my role at all. Difficult as it is at the moment, it wouldcertainly become impossible if I were responsible to the Executive.

In response to that comment, Mr Robert Lindsay, Deputy Director of the Legal AidCommission of Western Australia, stated at a Perth public hearing:

No doubt that is his wish, but that is in fact very little different from the position inregard to Legal Aid and the Director of Public Prosecutions. We have an accountabilityto Parliament, too.

Mr Lindsay also asked:

Who makes the appointment of the Ombudsman? The answer, of course, is theExecutive, so he does recognise there that anyway as matters now stand he is anappointment of the Executive and perhaps not unlike that of the Director of PublicProsecutions ... he [the DPP] is certainly a member of the Executive, but of course he isaccountable to Parliament. That is the same with Legal Aid.

Because the Ombudsman was an accountability agent of the Parliament, there was generalagreement that the appointment of the State Ombudsman should be made by theParliament rather than the executive. At a Perth public hearing, Mr Eadie said:

As regards the selection process, I’m recommending there on the basis of my ownexperience a slightly greater involvement of the Parliament in the process than thisCommission has recommended for the Auditor-General and for CIEPIC ... In both ...[New Zealand and the Northern Territory] ... the Parliament has a very real and verydirect role in the appointment process in that the recommendation is actually made bythe parliament to the Governor-General in New Zealand and to the Administrator in theNorthern Territory.

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I believe that it would be entirely consistent with the fact that the Ombudsman as anOfficer of the Parliament, that the appointment of the ombudsman should be in the handsof the Parliament rather than the hands of the Executive. There’s a certain inconsistencyin my view there that the Ombudsman claims as I do repeatedly, I’m responsible to theParliament and not to the Government of the day.

But Mr Eadie also asked the question:

... but who makes the appointment of the Ombudsman? The answer of course is theExecutive. I don’t believe that is appropriate and that is why New Zealand and theNorthern Territory have chosen to go a different way.

As a consequence, Mr Eadie concurred that it was important that the selection process be,and be seen to be, independent of the executive because it ‘assists the public perception tosee the appointment process dealt with in that entirely independent all party manner’.

In a written submission, the State Ombudsman noted our Report No. 2, Part 1 (COG,1995a) recommendation that the process for selecting and appointing the StateOmbudsman should be administered by the Commissioner for Public Sector Standards. Hepointed out that the procedure in New Zealand is as follows:

... the Ombudsman is appointed by the Governor-General on the unanimous resolution ofthe House of Representatives. The procedure is that applications for the advertisedposition are considered by a Select Committee which places a recommendation beforethe House through the Leader of the House.

The issue of length of tenure for the State Ombudsman was also raised by Mr Eadie. Heproposed that the term of appointment be ten years:

... in line with recommendations already made by the commission in relation to theAuditor-General and the proposed head of the new CIEPIC body, the Commission forthe Investigation, Exposure and Prevention of Improper Conduct. I’m proposing therethat it would seem appropriate, particularly because of the close analogy ... between myoffice and the Auditor-General.

I think it’s important that the ombudsman should be placed on a secure tenure of officeprovision of a period of 10 years which seems to me to be not inappropriate. The basicreason for that being not so much because of any actual interference or pressure bygovernment to prevent the watchdog from operating effectively, but because of thepublic perception that there might be some pressures applied from time to time.

For example, when an ombudsman comes towards the end of his term it might well besuggested in the media or elsewhere, and the public might become apprehensive aboutthese suggestions, that the Ombudsman feels he has to ease off because of theuncertainty perhaps to which he’s subjected from time to time as to whether or not hewill in fact have his term renewed or not as the case may be.

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The important thing there I believe is the public perception and I take it it’s for thatreason principally that both the WA Inc Royal Commission and this commission wouldhave recommended that the Auditor-General should be placed on the basis of a singlenon-renewable 10-year term and I believe that similar considerations apply to the Officeof the Ombudsman.

In Phase 2 of our inquiries, the issue of tenure was discussed by a number of peopleduring the public hearings. Mr Digby Blight, the Commissioner for Public SectorStandards, offered his concerns about the appointment of chief executive officers:

Would not your loyalty tend to be a little stronger than the public interest in the last yearor so of your contract, unless you were over 55? I’m being very cynical. I have gonefrom the days where permanent head meant that. That’s entirely proper, for agovernment to decide to do that, and the reason of course is that permanent headsbecame very cosy after a period in office when they knew they had another 5 or 6 years,or whatever, to age 65.

Also in Phase 2 of our inquiries, the Director for Public Prosecutions, Mr John McKechnieQC, commented on the relationship of independence to tenure. At a Perth public hearinghe said:

Now, coming to the DPP I think there are problems in creating an office which has toprovide fearless independent judgment but subject to occasional renewal ... I do thinkit’s worthwhile to consider the original proposal, which was to make it subject to I thinkage 65 or a statutory age, or alternatively to make the appointment for a slightly longertime, 7 years or 10, non-renewable, which is the situation with the National CrimeAuthority, I think ... In other words, to remove that item of possible self-preservationfrom the equation when one is making a decision. I mean, if the DPP coming up forrenewal were faced with making a prosecution decision about the attorney-general or thepremier one can see immediately the sorts of pressures that would be on that person andthe perception, which would be just as important even if the DPP said there is no case,would be, ‘Well, they just want the job again.’

5.4.4 Analysis

The appointment procedure and the terms of appointment of both the State Ombudsmanand the Deputy State Ombudsman are set out in the Parliamentary Commissioner Act1971 (PCA). Under s.5 of the PCA, the State Ombudsman and the of Deputy StateOmbudsman are appointed by the Governor. Although the State Ombudsman is viewed asan independent accountability agent of the Parliament, no aspects of the selection orappointment of the State Ombudsman are the responsibility of the Parliament. The PCA issilent on the selection process.

The State Ombudsman and the Deputy State Ombudsman are appointed for a term of fiveyears (s.5(3)). There are no provisions in the PCA to prevent the re-appointment of theState Ombudsman for another or further terms. During the second reading speech of theParliamentary Commissioner Bill the then Premier, the Hon. John Tonkin MLA, stated:

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The Bill before the House provides for the appointment of an ombudsman whose term ofoffice shall be for five years, with of course – as could be expected – the right ofrenewal.

Section 5(5) of the PCA provides that the salaries of the State Ombudsman and the DeputyState Ombudsman are to be determined by the Governor. The salaries for both areappropriated from the Consolidated Fund under the PCA (s.5(6)). The budget for the staffand office requirements of the State Ombudsman is not so appropriated and is subject tothe usual Treasury budgetary process.

The PCA provides for restrictions on who may be appointed to either the StateOmbudsman or Deputy State Ombudsman positions. In the second reading speech, theHon. John Tonkin MLA, confirmed that the State Ombudsman could not, within thepreceding three years, have been a Member of Commonwealth or State Parliament(s.5(8)), although the position could be filled by a current ‘officer of the Public Service’(s.10(3)).

Suspension and removal of the State Ombudsman and the Deputy State Ombudsman maybe effected, at any time, by the Governor on addresses from both houses of Parliament(PCA, s.6(1)). Under s.6(2), the Governor has the power to suspend the State Ombudsmanor Deputy State Ombudsman if satisfied that either:

(a) is incapable of properly performing the duties of his office;

(b) has shown himself incompetent properly to perform, or has neglected, thoseduties;

(c) has applied to take, or has taken, advantage of any law relating to bankruptcy, orhas compounded, or entered into any arrangement, with his creditors; or

(d) has been guilty of misconduct.

In the above circumstances, the State Ombudsman or Deputy State Ombudsman is to berestored to office unless each house of Parliament within 30 sitting days of a statement ofthe grounds of suspension being laid before the respective houses, passes an addresspraying for the State Ombudsman’s removal from office (s.6(3)). The Governor is to laythat statement before each house of Parliament during the first seven sitting days of thathouse following the suspension.

The appointment of the State Ombudsman under the PCA is by the executive, but in 1971the Premier made it clear that the State Ombudsman was an agent of the Parliament. In aresponse to a question in the Legislative Assembly on 23 September 1971 as to whetherthe minister would be the last word in the subject, the Premier, the Hon. John Tonkinresponded:

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Parliament is the last word. If there is anything wrong with the conduct of a minister hemay be questioned and called to book in the parliament. (WAPD, Assembly, 23 Sept1971: 1735)

The Premier went on to say:

Either house of parliament, by resolution, may call upon the Ombudsman to investigate amatter of complaint. Any committee of either house may also do that.

Section 10 of the PCA provides that Part 3 of the Public Sector Management Act 1994(PSMA) does not apply to the State Ombudsman, the Deputy State Ombudsman, anyActing State Ombudsman or Officers of the Office of the State Ombudsman. To providefor continuity of service and superannuation benefits, accruing rights and benefits apply asif that office were an office of the public service (s.10). The State Ombudsman’s staff areappointed by the Governor on recommendation of the State Ombudsman. Because theState Ombudsman’s staff are not members of the public service, the State Ombudsman isnot a chief executive officer under the PSMA.

Under the provisions of the Financial Administration and Audit Act 1985 (FAAA) (s.3),the State Ombudsman is deemed to be a department for the purposes of the FAAA. TheState Ombudsman is not a department of the public service of Western Australia andprovisions under the PSMA relating to substandard performance, disciplinary matters,redeployment and redundancy of employees do not apply. These provisions are intendedto insulate the State Ombudsman from outside pressures, especially those which arisefrom within the executive, and to ensure the objectivity of the office and its staff.

Given that the State Ombudsman, the Deputy State Ombudsman and staff are appointedby the executive, the Office of the State Ombudsman cannot be considered to be anindependent accountability agent of the Parliament. In view of this, we believe there arestrong arguments in favour of the Office being structured as a statutory authority.Agencies such as the Office of the Auditor General and the State Ombudsman should nothave the executive controlling their level of funding. Parliament should do this.


1. The proposed Legislative Council Public Administration Committeeshould participate in the selection of the State Ombudsman. Theprocess for selecting the State Ombudsman should be set out in theParliamentary Commissioner Act 1971 as follows:

(a) the Commissioner for Public Sector Standards shouldadminister the selection process;

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(b) the Commissioner for Public Sector Standards should submit alist of applicants for the position of State Ombudsman to theproposed Legislative Council Public Administration Committee;

(c) the Committee should submit a short list of suitable candidates,chosen from the Commissioner for Public Sector Standards’list, to the Premier;

(d) the Premier, making a selection from the short list, shouldadvise the Governor of the preferred candidate;

(e) the Governor should appoint the State Ombudsman; and

(f) the State Ombudsman should be appointed for a non-renewableterm of ten years.

2. The remuneration of the State Ombudsman should be determined bythe Salaries and Allowances Tribunal.

3. The budget of the Office of the State Ombudsman should be thesubject of a permanent appropriation. The proposed PublicAdministration Committee should determine the budget of the Officeannually with due consideration of any advice from the Treasurer. Incircumstances where additional funding is required to complete theOffice’s work program, the Public Administration Committee shouldconsider the State Ombudsman’s request. If the Committeedetermines that additional funding is warranted, a request foradditional funds, to be drawn from the Treasurer’s Advance Account,should be submitted to the Treasurer.

4. The Office of the State Ombudsman should be established as astatutory authority. Recruitment and staffing policy should bedetermined by the State Ombudsman, subject to annual review bythe proposed Public Administration Committee.

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Chapter 6Conduct

CHAPTER 6 CONDUCT

6.1 INTRODUCTION

Specified Matter 10 requires the Commission on Government to inquire into:

[t]he standards of conduct expected of all public officials for the purposes of –

(a) their formulation in codes of conduct; and

(b) determining what associated measures should be taken to facilitate adherence tothose standards.

The Royal Commission into Commercial Activities of Government and Other Matters(WA Royal Commission) recommended that the Commission on Government examinethese issues, as it considered that there was cause for concern about the integrity of somepublic officials and their understanding of their legal and public responsibilities. Itconsidered that the complex issues involved in the ethical behaviour of public officialsrequired thorough examination (WA Royal Commission, 1992).

During our inquiries over the last 18 months, these concerns have been repeated by manypeople who have complained at seminars, public hearings and in written submissions thatthe standard of behaviour of public officials does not measure up to public expectations.This disquiet is not limited to any one category of official, but applies to both elected andappointed officials. Similar concerns about aspects of the conduct of public officials havealso been voiced in the media and other forums.

Recent inquiries that have examined aspects of the behaviour of public officials have beenthe Queensland Commission of Inquiry Pursuant to Orders in Council (the FitzgeraldInquiry), which examined possible illegal activities and associated police misconduct; theReport on the Review of Codes of Conduct for Public Officials by the QueenslandElectoral and Administrative Review Commission (EARC); the current RoyalCommission into the New South Wales Police Service (the Wood Royal Commission); theRoyal Commission into Use of Executive Power (the Easton Royal Commission) and thecurrent Royal Commission into the City of Wanneroo.

Whether there has been a decline in standards is unclear. The proliferation of inquiries andchanges in the way the media reports public affairs may have served to focus attention onmatters that would previously have gone unreported. The widely held perception thatexisting ethical standards are inadequate must be a cause for concern. Jackson notes:

For those concerned about the health of the Australian political culture, the 1983International Values Survey offered precious little solace. In the Australian sample, less

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than half of the respondents were prepared to express confidence in either theCommonwealth Parliament or the Commonwealth Public Service. This was anextremely carefully conducted survey aimed at underlying attitudes and not ephemeralresponses to the issues of the day. (Jackson, 1990: 172)

It is unlikely, given the continuing focus on instances of unethical behaviour in theensuing decade, that this situation has improved or that the dissatisfaction is confined tothe Commonwealth jurisdiction.

We have addressed, or are addressing in other Specified Matters, some of the issues thatthe WA Royal Commission identified as contributing to loss of integrity in the conduct ofpublic officials. These include:

• the need for decision making to be open (Report No. 1: COG, 1995a);

• the proper management of public records (Report No. 2, Part 2: COG, 1995d);

• the facilitation and investigation of whistleblowing complaints and the appropriatemeans of preventing and exposing impropriety and corruption (Report No. 2, Part 1:COG, 1995c); and

• the role of media secretaries, the appointment of public sector employees to Boardsand Committees and the registration of the pecuniary interests of certain publicofficials, all of which will be addressed in Report No. 4.

In this and the next two chapters, we consider:

• the range and variety of the roles and functions performed by public officials and theresponsibilities that go with those roles;

• existing arrangements for setting standards and addressing breaches of standards;

• the purposes of codes of ethics and conduct and how they can be developed;

• the concepts of conflict of interest, public trust and leadership;

• recent changes to the system in Western Australia with the introduction of the PublicSector Management Act 1994 (PSM Act); and

• the importance of induction and training for public officials in ethical matters.

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Chapter 6Conduct

6.2 THE WESTERN AUSTRALIAN ROYAL COMMISSIONINTO COMMERCIAL ACTIVITIES OF GOVERNMENTAND OTHER MATTERS

During its investigations, the WA Royal Commission took evidence from more than 150public officials on matters covering a wide range of activities and involving manyinstitutions. The Commissioners noted that ‘some officials who appeared before usseemed to have very little appreciation of those standards [to which the communityexpects them to adhere]’ (WA Royal Commission, 1992: II 4.6.1). They recognised that:

The criminal law provides no more than the base level below which officials must notfall. It does not address the standards to which they should aspire even if these must, tosome degree, always remain an ideal or counsel of perfection. Nor does it addressstandards, the breach of which should attract disciplinary action. (WA RoyalCommission, 1992: 4.6.3)

The WA Royal Commission commented on the complexity of the issues that needed to beconsidered when addressing this subject, and acknowledged that ‘there are varying viewson how this should be done so as to achieve greatest practical effectiveness’ (WA RoyalCommission, 1992: II 4.6.8). While accepting that a system of standards could not of itselfensure integrity, and that leading by example, training and the inculcation of a sense ofprofessional responsibility are more important, it did conclude that codes and associatedmeasures are a necessity. It called for:

... all public officials [to] have available to them in documentary form a statement orcode which clearly states and explains the standards to which the community expectsthem to adhere. (WA Royal Commission, 1992: II 4.6.1)

and stated that:

... officials must be provided with practical guidance in solving the ethical and otherdilemmas which are likely to confront them ... (WA Royal Commission, 1992: II 4.6.8)

6.3 STANDARDS OF CONDUCT OF PUBLIC OFFICIALS

Before considering appropriate standards of conduct expected of public officials, it isnecessary to consider who should be covered by the term, the roles and functions whichsuch officials perform and any special standards to be required of them.

6.3.1 DEFINITION OF PUBLIC OFFICIAL

It is difficult to find a consistent meaning to be applied to the terms public official orpublic sector in Western Australian legislation.

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Section 3 of the Commission on Government Act 1994 (the Act) states that:

“public official” includes a Minister of the Crown and a member of Parliament.

The Act does not specify which other categories of official should be considered to bepublic officials, although the WA Royal Commission had clearly expressed the view that awide definition of public official was needed. The WA Royal Commission made a numberof specific references to categories of official who should be bound by codes:

To avoid any misunderstanding, we expressly include within this members of Parliamentand ministers ... the important legal and ethical responsibilities of members which resultfrom their public trusteeship ... must be known by, and required of, members. (WARoyal Commission, 1992: II 4.6.9)

And again:

The Commission’s inquiries make it quite necessary for it to comment specifically onthe guidance required for four types of official.

(a) Ministers – A comprehensive code of conduct is a necessity. They have thegreatest power and the greatest responsibility ...

(b) Members of statutory authorities ... a code of conduct for members of suchauthorities must make plain what their role and responsibilities require of them ...

(c) Press secretaries/media officers ... It is essential, given the part they play as aninformation bridge between government and the public, that they have a clearunderstanding of what is and is not appropriate behaviour on their part indischarging this function.

(d) Ministerial staff ... it is of the first importance that they have available indocumentary form a clear statement prescribing how they properly can act onbehalf of their minister in dealing with officials serving in that minister’sportfolio. (WA Royal Commission, 1992: II 4.6.10)

Section 3 of the PSM Act defines the public sector as all:

• government departments;

• the agencies specified in Schedule 2 of the Act (see Appendix 2a);

• agencies, offices, posts or positions established for a public purpose under a writtenlaw and persons employed by those agencies, offices, posts or positions; and

• ministerial officers appointed to assist a particular political office holder.

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Excluded from the public sector for the purposes of this Act are ministers and Members ofParliament, elected or appointed local government authority officials, courts and tribunalsestablished or continued under a written law and judges or officers exercising a judicialfunction as a member of such a court or tribunal, the Police Force, the universities, theGovernor’s establishment, parliamentary staff, electorate staff and a number ofcorporatised organizations.

Section 1 of the Criminal Code defines the term public officer more widely to mean:

... a person exercising authority under a written law, and includes –

(a) a police officer;

(b) a person authorized under a written law to execute or serve any process of a courtor tribunal;

(c) a public service officer within the meaning of the Public Sector Management Act1994;

(d) a member, officer or employee of any authority, board, corporation, commission,municipality, council, or committee or similar body established under a writtenlaw; or

(e) any other person holding office under, or employed by, the State of WesternAustralia, whether for remuneration or not.

In Queensland, the Electoral and Administrative Review Commission (EARC), in itsReport on the Review of Codes of Conduct for Public Officials, expressed the view that itwas in the public interest to adopt a wide definition. It defined a public official as anofficer of a public sector unit, and a public sector unit as:

(a) the Legislative Assembly and the Parliamentary Service; or

(b) the Executive Council; or

(c) the courts of the State of whatever jurisdiction, their registries and administrativeoffices; or

(d) a department of the Government of the State; or

(e) a Commission established under an Act; or

(f) the Queensland Police Service; or

(g) Queensland Railways; or

(h) a Local Authority; or

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(i) a corporation sole, a body corporate or an instrumentality –

(i) representing the Crown; or

(ii) constituted by or under any Act or law; or

(iii) constituted for a purpose in connection with the government of the State.(EARC, 1992: 12)

In considering EARC’s recommendations and submissions made in response to the EARCReport, the Parliamentary Committee for Electoral and Administrative Review (PCEAR)formed the view that the judiciary should be excluded from the scope of the public sectorlegislation it was proposing. It quoted Chief Justice Macrossen of the Supreme Court ofQueensland:

The duty obligations of the judges comes from their unique position and the terms of theoaths taken on their assuming office as well as from the well developed understandingsenshrined in case law, the application of which they themselves oversee. (PCEAR,1993: 19)

The submissions that we received on this Specified Matter were generally in favour ofdefining the term public official widely and we agree that it is in the public interest to doso. Accordingly, we define ‘public official’ for the purpose of this Specified Matter toinclude:

• ministers of the Crown and other parliamentary office holders;

• Members of Parliament;

• officers and employees of public sector bodies as defined in the Public SectorManagement Act 1994;

• members and employees of any municipality or regional council established underthe Local Government Act 1960;

• the Police Force within the meaning of the Police Act 1892;

• employees of government trading enterprises;

• officers of statutory officials responsible to Parliament, such as the Auditor General,the Parliamentary Commissioner for Administrative Investigations (theOmbudsman), the Commissioner for Public Sector Standards and the InformationCommissioner;

• the Governor’s establishment referred to in the Governor’s Establishment Act 1992;

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• members of the staff of Parliament and electorate officers as referred to in theParliamentary and Electorate Staff (Employment) Act 1992; and

• employees of universities.

None of the submissions we received addressed the issue of the judiciary. We concur withthe views of PCEAR in this regard and conclude that it is not appropriate for us to includethe judiciary as public officials for the purpose of our inquiries into this Specified Matter.

None of the categories referred to above include former appointed or elected officials. Nordo they cover the increasing numbers of people who are contracted by government toperform services previously provided by government employees and paid for with publicfunds. Although not including private contractors in our definition of public official, werefer to them later in this Report.

The standards of conduct of members of boards of statutory authorities are addressed inSpecified Matter 7 in Chapters 2-4 of this Report, and those of public sector employeesappointed to boards and committees will be addressed in Specified Matter 8. We proposeto address the situation of the statutory officials who report to Parliament in Report No. 5.

6.3.2 ROLES AND FUNCTIONS OF PUBLIC OFFICIALS

In Westminster-derived systems it is thought that governments make policy and appointedofficials implement that policy impartially. In this model, Members of Parliament are saidto be directly accountable to the public, while appointed officials are accountable to theirministers.

This view supposes that appointed officials are provided with a clear and complete set ofpolicies which cover all their administrative actions. This is demonstrably not the case asmost appointed officials are required to make discretionary decisions daily, and thesedecisions frequently involve distribution of resources or power. Many argue that thetraditional Westminster model, if it ever existed with such purity, no longer does, and thatthere has been an increasing blurring of the roles of elected and appointed officials inrecent years. Chapman supports this view:

... in democratic political systems governments are elected by the people and officialsare generally accountable to elected representatives, but it is evident that in the complexexperience of life in the modern world the separation of legislative and administrativepowers is by no means clear-cut ... much of the detail, as well as some of the broadoutlines, of public policies has to be filled out by officials ... Gerald Caiden illustratesthis admirably: ‘Whenever public laws use such terms as “adequate”, “advisable”,“appropriate”, “beneficial”, “convenient”, “equitable”, “fair’, “fit”, “necessary”,practicable”, “proper”, “reasonable”, “safe” or “sufficient”, or their opposites, theyoblige public servants to exercise discretion and make ethical judgments’. (Chapman,1993a: 156-157)

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Campbell notes that:

... systems which derive from the Westminster tradition ... have changed verysubstantially in the past two decades. Even in Whitehall, officials feel much morecomfortable dealing directly with client groups than they had previously ... It becomesclear that we must reassess the compatibility of hierarchical and democraticaccountability in Westminster systems ... (Campbell, 1993: 115)

Mr Ken Baxter, Director General of the Premier’s Department in New South Wales andformerly Secretary of the Department of Premier and Cabinet in Victoria, goes further:

... I would argue strenuously that the Westminster system does not operate in Australiaand it has been a long time since it had done so in its pure form. (Baxter, 1991: 280)

It would appear that many appointed officials may not understand that the discretionarydecisions that they make involve implementation of policy. A survey commissioned byEARC to identify attitudes towards ethical issues among Queensland public servants in1991 found that 65 per cent agreed with the statement that ‘government makes policy, butpublic servants are only responsible for implementing it’ (EARC, 1991: Appendix B10).

Appointed officials also need to bear in mind their responsibility under the law. Paul Finncomments:

An officer ... may be accountable to his or her minister, but that officer is equallyaccountable to the law. When the demands of the former conflict with the requirementsof the latter, it is the latter which prevails ... [u]nlike with the employee in the privatesector, there are two roles, not one: servant of the government, and servant of the lawand the constitution (the public). Of the two the former manifestly is of persuasivesignificance on a day-to-day basis. But it is the latter which provides the irreducible coreof the role and the responsibility of the civil servant. (Finn, 1993b: 138-140)

In 1978, a Committee of Inquiry (the Bowen Committee) was established to inquire intoPublic Duty and Private Interest. It compared aspects of the roles of ministers, Membersof Parliament and public servants and decided that expectations of different standards ofconduct could be justified (Bowen Committee, 1979: 9).

Since the Bowen Committee, there have been significant changes to the public sector’smode of operation, which could be said to have further complicated the role of appointedofficials. These changes are outlined in more detail in Chapter 8.

6.3.3 PUBLIC TRUST

Although public officials’ roles differ according to whether they are elected or appointed,the sphere of government to which they belong and their place in the hierarchy, there arefeatures common to all who hold public office. These include the fact that they arepublicly funded and, to greater or lesser degree, they have the ability to make decisions

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which affect other citizens and to control public financial resources. This being the case, itis frequently argued that all public officials are required to act in the public interest in theirpublic duties and to be accountable to the public for the manner in which they conductthemselves and the decisions they take.

The WA Royal Commission described the ‘trust principle’, which, it said, expresses theconditions upon which power is given to the institutions of government and to bothelected and appointed officials:

The institutions of government and the officials and agencies of government exist for thepublic, to serve the interests of the public. (WA Royal Commission, 1992: II 1.2.5)

A similar theme appears in the so called free speech decisions of the High Court where itwas recognised that the ultimate source of power is the people:

... the powers of government belong to, and are derived from the governed ... (per Deane,Toohey J.J. Nationwide News v Wills (1992) 108 ALR 681 at 723)

Although it is now fairly common to find such references to this notion of the public trust,it was not always the case:

A decade ago it was rare to hear it said that government, and through it its officials,discharged a “public trust” – and I emphasise the word “trust”. Today the language oftrusteeship is re-emerging and appropriately so. It embodies a long standing legal,constitutional and I venture popular perception of the nature of government itself:government exists, and should appear to exist, for the benefit of the community, not forthe benefit of its practitioners or of those they favour. (Finn, 1990: 88)

This primacy of the public interest is not always evident in the manner in whichgovernment and public officials work. Finn considers that ‘[w]e have a history, a practice,a tradition which has encouraged a conception of government as the public’s master andnot its servant’ (Finn, 1993a: 50). He argues for the imposition of effective publicaccountability measures on public agencies and officials, such imposition to be justified,not by what a government finds to be necessary or tolerable but by three principles:

Sovereign power rests with the people ...

Where the public’s power is entrusted to institutions and officials for the purposes ofgovernment, they hold that power of the people to be exercised for the people. They arethe public’s trustees ...

Those entrusted with public power are accountable to the public for the exercise of theirtrust. (Finn, 1993a: 52)

The WA Royal Commission stated that the trust principle provides a measure to judge thepractices and procedures of public institutions and that it informs the standards of conductto be expected of public officials. If we accept the view that all public officials are the

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public’s trustees and are accountable to the public for the exercise of that trust, we need toconsider the following issues:

• whether the standards of behaviour of all public officials should be assessed againstthe same criteria or whether the different functions and access to power of somecategories of public officials mean that they should be assessed against differentstandards; and

• whether all officials should be directly accountable for their conduct and if so, howthis should be achieved.

6.3.4 ETHICAL BEHAVIOUR

The Concise Oxford Dictionary defines ‘ethic’ as ‘a set of moral principles’ and ‘ethical’as ‘relating to morals, esp[ecially] as concerning human conduct’ (Allen, 1990: 401).

It is clear that Australian society expects ethical governance and, in accordance with thetrust principle, it has a right to that expectation. One way in which society identifieswhether it has ethical governance is by focusing on the standards of behaviour of its publicofficials:

Ethics in government refers to moral standards in the public service ... It ... has importantimplications for citizens ... [and] reflects the standards or values of society: but what isacceptable in one place or at one time may differ from what is acceptable in anotherplace or at a different time. Ordinary citizens in western style democracies expectgovernments to abide by the rules and values of society in much the same ways as theyare expected to abide by them themselves. (Chapman, 1993b: 1)

Kernaghan claims that until about 1970 there had been a pattern of relatively brief cyclesof public concern about public service ethics, but that since the 1970s there has beenenduring concern and a sustained focus on the subject. This is partly a result of revelationsof unethical behaviour involving both public servants and politicians, but it also reflects abroad societal concern about ethical behaviour generally, whether applied to government,business or the professions. He defines ethics as being:

... concerned not only with distinguishing right from wrong and good from bad but alsowith the commitment to do what is right or what is good. The concept of ethics isinextricably linked to that of values, that is, enduring beliefs that influence the choiceswe make from among available means and ends. [emphasis in original] (Kernaghan,1993: 16)

There is considerable debate over which values should be the standards for ethicalregimes. The WA Royal Commission considered that:

The required standards can be formulated in the following general terms. PublicOfficials:

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– must act under and in accordance with the law;

– must exercise their offices honestly, impartially and disinterestedly and be seen todo so;

– must act fairly and with due regard to the rights and interests of the members ofthe public and of other public officials with whom they deal;

– must exercise their offices conscientiously and with due care and skill;

– must be scrupulous in their use of their position and of public property and ofinformation to which they have access; and

– must be prudent in their management of public resources.

In sum, they must act so as to maintain public confidence in the institutions, theprocesses and the personnel of government itself. (WA Royal Commission, 1992: II4.6.3-4.6.4)

In the United Kingdom, the House of Commons established the Committee on Standardsin Public Life (the Nolan Committee) in 1994 following a series of controversiesinvolving public officials. In its first Report, (Nolan Committee, 1995: 14) it examinedstandards of conduct of all holders of public office and identified seven general principlesof conduct which were considered to underpin all areas of public life. These were:

• selflessness: that public officials should take decisions purely in the public interest;

• integrity: that public officials should not place themselves under financial or otherobligations which could influence them in the performance of their duties;

• objectivity: that public officials should make choices on merit in carrying out theirduties;

• accountability: that public officials should be accountable to the public for theirdecisions and actions;

• openness: that public officials should be as open as possible about and give reasonsfor their decisions and actions;

• honesty: that public officials should declare any public interests relating to theirpublic duties and resolve any conflicts in the public interest; and

• leadership: that public officials should promote these principles by leadership andexample.

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The Queensland Public Sector Ethics Act 1994, which was drafted following the EARCand PCEAR reviews of Codes of Conduct for Public Officials, includes five ‘ethicsprinciples’ for Public Officials. These are:

• respect for the law and the system of government

• respect for persons

• integrity

• diligence

• economy and efficiency. (s.4(2))

Although expressed in different terminology, there is a good deal of congruence betweenthese ethical principles and those developed for other public sectors. This is probably notsurprising, as arguably there is less difficulty in determining the principles on which thestandards of public officials should be based, than in applying those principles in practicalcircumstances.

In seeking to do what is good and what is right, all public officials, regardless of theparticular role they perform, are likely to be confronted with moral or ethical dilemmasfrom time to time. They may need assistance in determining which is the most ethical ofvarious courses of action. Officials who either do not realise that there is a moral choice tobe made, or who make unethical decisions, have the capacity to cause great damage to thesystem of government.

[N]othing is more dangerous to the wellbeing of the body-politic than a public officialwho is technically competent or strategically astute but ethically illiterate or unfit.(Preston, 1994: 1)

Consequently, governments and public sector administrations must assume someresponsibility for the ethical conduct of their officials. Not all the members of a societynecessarily share the same individual values, so it is important that officials are informedof and understand the values that underpin their organization. Whitton (1994: 58) notesincreasingly it is recognised that ‘the ethical standards of an organization are theresponsibility of the organization, not the employees’ (emphasis in original). Even so, itwas acknowledged in the EARC report that:

It has become abundantly clear that the personal values of officials are an integral part ofpublic administration. The influence of personal values on the performance of publicduties must therefore be properly identified, carefully assessed, and effectively managedwhere conflicts arise. (EARC, 1992: 17)

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6.4 CONFLICT OF INTEREST

A conflict of interest arises when a private interest influences, or appears to influence, theperformance of public responsibilities. Both pecuniary and non-pecuniary interests mayconflict with the public interest. Different methods can be employed for managing conflictof interest problems. These include:

• setting out guidelines in a code of conduct;

• prohibiting a public official from possessing a particular type of interest or acting ina public office while holding such a private interest;

• requiring disclosure of the relevant interest;

• establishing a system of registration;

• requiring divestment of an interest; and

• disqualification, by the removal of the public official from a particular duty.

In developing appropriate methods to avoid or resolve conflicts, it is often considered thatthere needs to be a balance between the public accountability of public officials and theirright to privacy in respect of their private interests.

The problems associated with defining the type of private interests which conflict withpublic duty, were discussed by a Commonwealth Government Committee of Inquiry in1978 (Bowen Committee). While this Committee considered it an impossible task to drawup a comprehensive statement of the possible private interests which could conflict withpublic duties (Bowen Committee, 1979: 15), it did develop the following test for a conflictbetween public duty and non-pecuniary interest:

... the likelihood that the person possessing the interest could be influenced in theindependent judgment which his public duty requires be applied to the matter in hand, orthat a reasonable person would believe that he could be so influenced. (BowenCommittee, 1979: 11)

The Bowen Committee also formulated a code of conduct to be adopted for generalapplication to all office holders. The code consists of ten principles designed to promotethe avoidance of conflict of interests, financial or otherwise, and provides a basis for theirresolution where necessary. This code has generally been accepted as forming theminimum standards that should be adhered to by public officials.

At present, there are various methods employed throughout the public sector in WesternAustralia for the avoidance or regulation of conflict of interests. These include:

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• the incorporation of conflict of interest guidelines in public sector agency-specificcodes of conduct;

• provisions contained in legislation such as the Public Sector Management Act 1994(dealing with issues such as outside employment) and the Local Government Act1995;

• Standing Orders which prohibit members voting in Parliament or sitting on certaincommittees if they have a personal interest in a matter raised;

• a requirement for registration of certain interests of parliamentarians pursuant to theMembers of Parliament (Financial Interests) Act 1992; and

• ministerial codes of conduct which provide that ministers are to declare to thePremier any private interests which may conflict or appear to conflict with theirministerial duties.

In addition, there are provisions in the Criminal Code which prohibit corruption byofficials, bribery and extortion, and officers having an interest in contracts with the publicsector.

It is impossible to anticipate all the types of personal interests which may tempt publicofficials to compromise their duty to the public. Because conflicts are inevitable, codes ofconduct are one means of setting out a useful conflict avoidance or regulatory procedure.

We have raised these issues in Discussion Paper No. 13 and will be reporting onpecuniary interests in Report No. 4. Various means have been developed over time toassist officials in identifying moral dilemmas and in making appropriate decisions. Amongthe most common are codes of ethics and codes of conduct and the inclusion of ethics ininduction and training courses.

6.5 BEHAVIOURAL CODES

With the increase in public attention on the conduct of public officials, greater attentionhas been paid by many public sector administrations to the effective management ofethics. This interest in ethics in the public sector in Australia and internationally has beendubbed by Professor Paul Finn as the ‘code of conduct-led recovery’ (quoted in Whitton,1994: 39). Applied Ethics courses are now offered in many universities, and centres foradvice on ethical issues are also being established.

Codes, which specify expected standards of behaviour, have been one of the major waysin which both public and private sector organizations and professional associations havesought to regulate the habits of their members and staff and to teach them about ethical

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requirements. There is general consensus that codes of conduct cannot make a dishonestperson honest, or prevent corrupt acts by persons who deliberately set out to be corrupt,nor that they are a sufficient means in themselves to ensure the compliance of honestofficials with acceptable standards of conduct. Their usefulness is noted by Hughes in theview expressed in the United Kingdom by the Prime Minister’s Committee on LocalGovernment Rules of Conduct. Rules of conduct:

... are a framework of reference embodying uniform minimum standards. Their specialvalue is in situations which are intrinsically complicated, or are new to the individualconcerned, where they provide a substitute for working out the right course of actionfrom first principles on each occasion. (Hughes, 1990: 54)

The types of codes which are most frequently used are codes of ethics and codes ofconduct. There is often confusion between these terms and they are sometimes usedinterchangeably. Both are written statements of an organization’s or association’sexpectations about the standards to which members and staff must adhere, but theyarticulate different levels of standards.

A code of ethics identifies the moral principles that apply to a particular group in aparticular place and at a particular time, with which a member of that group must complyif he or she is to meet acceptable standards of behaviour. It reflects the general values ofthe society of which the group forms part and guides members of the group in thedecisions they make. Frequently, such a code is established centrally and applied to anentire sector.

A code of conduct on the other hand, sets out rules that reflect the particular business of anorganization or profession. It focuses on the activities that members and employees arerequired to perform and assists members to apply ethical principles to the dilemmas thatmay confront them.

This Specified Matter only relates to codes of conduct, yet many codes contain elementsof both codes of conduct and codes of ethics. When the term code is used in this Report, itapplies to both codes of conduct and codes of ethics.

6.5.1 HISTORY OF CODES

Behavioural codes have played important roles in most societies throughout history,although they are not necessarily known by that title. Many of them were religious inorigin. An example of a behavioural code, which many still think covers all that should benecessary for all aspects of life, is the biblical ten commandments. Codes that contain asmall number of general rules expressed in broad terms are often referred to as belongingto the Ten Commandments model, in contrast to those codes that make provision for awide range of ethical problems and either include or refer to existing statutes, regulationsand other ethical rules.

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In recent decades, codes of ethics and codes of conduct have become increasingly popularin public sectors in most liberal democracies. Codes are also common in associationsrepresenting professions such as doctors, lawyers, journalists and in the corporate world. Itis interesting to consider why it is that codes have achieved such a degree of prominencewhen workplace and professional ethics are under review.

Whitton considers that:

In Australia, “Applied Ethics” as we now know it grew out of the challenges byconcerned individuals, and later by organisations, to establish values, at a time when theChristian Church ... was no longer being seen as the only moral arbiter in Australia.(Whitton, 1994: 42)

Chapman also regards codes as a means to socialise members of a group to its requiredvalues.

It is all very well, and indeed true, to say that the socialisation of individuals before theyjoin the public service provides them with a value system which includes beliefs aboutethical standards considered generally acceptable in society; but widespread ignoranceamong mature and well educated citizens about how the system of government workssuggests a very uncertain and complacent approach to some of the values usuallyexpected in a liberal democracy. (Chapman, 1993a: 165-166)

In summary, codes can be seen as useful means for regulating the behaviour of themembers of a group or for responding to the process of social change.

6.5.2 DESIGN OF CODES

In the literature and during hearings of this Commission, we noted considerable confusionabout what constitutes codes of ethics and codes of conduct, and what they should beexpected to achieve. These differences were, in many instances, quite fundamental andrelated to the way in which codes should be developed and administered, the values thatshould underpin them, the level of detail required, who should be covered by codes andwhether sanctions could or should be applied and, if so, how they should be enforced. Thislack of consistency has the potential to cause problems. Kernaghan notes that:

... the form, content and administration of ethical codes differ significantly from onegovernment to another. ... much of the dispute over the utility of codes of ethics arisesfrom the fact that such a wide variety of instruments are described as codes. (Kernaghan,1993: 18)

Various models have been proposed for codes, with different justifications. These include:

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• Codes designed by senior management embodying a set of formal rules, with thosebound by the rules having little if any contribution in their development. Oftensystem-wide codes developed by a central agency fit this model, with the codesbeing based on widely held community values underpinned by formal sanctions andintended to be applied by all agencies within the system. Differences in the values ofthe participating organizations are not taken into account in this model.

• Codes devised as management techniques for achieving efficient, effectivelyoperating organizations by setting out the goals of the organization and the conductconsidered to be appropriate within that organization as determined by identifyingorganizational values. It would be usual for such codes to have similar core valuessuch as honesty, integrity, fair treatment, courtesy and diligence underpinning theorganizational values. These codes are a management initiative but are developed inconsultation with the members of the organization. They may or may not incorporatesanctions, but generally conformity with the code would be sought by peer grouppressure.

• Codes aimed at restraining the few members of the organization who might indulgein improper conduct, by imposing sanctions for breaches of the code.

• Codes aimed at reinforcing appropriate behaviour of all members of a group througha process of discussion and internalising of common values.

There is debate as to whether in the 1990s we still have shared community values orwhether changes in our community mean that such common values no longer exist. If it isaccepted that community values do exist, at an organizational level it is more appropriateto apply values relating to the particular organization and its clients.

6.5.3 BENEFITS OF CODES

Commentators such as Kernaghan (1993) have identified the objectives of behaviouralcodes as including:

• the promotion of public trust and confidence in public officials;

• the avoidance of unethical conduct;

• the legitimising of the imposition of sanctions for unethical behaviour;

• the sensitising of public officials to ethical values implicit in their work;

• the reduction of uncertainty about what constitutes unethical behaviour;

• the development of skills for the analysis of ethical issues; and

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• the promotion of moral development.

As we have noted, codes will not make a dishonest person honest or prevent corrupt actsby a person determined to be corrupt. They do have an important role to play in assistingthe majority of honest public officials to identify ethical dilemmas and make appropriatediscretionary decisions when confronted by such dilemmas. They can also assist in raisingthe general ethical consciousness of public officials so that they are better placed toidentify improper or corrupt activities and understand that they have a responsibility to actagainst such impropriety or corruption.

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Chapter 7Elected Officials

CHAPTER 7 ELECTED OFFICIALS

7.1 MEMBERS OF PARLIAMENT


7.1.1.1 Standard of Behaviour Expected

One of the most difficult issues that we have examined in this Specified Matter is thestandard of behaviour that the public is entitled to expect of politicians. Should we expectour Members of Parliament to observe higher ethical standards than the community atlarge? As representatives of the community they will tend to reflect community standards.But, like all public officials, Members of Parliament occupy a position of trust. Because ofthis public trust, it is frequently argued that parliamentarians must observe standards ofconduct which are higher than those applying to the wider community. As outlined, thisnotion of public trust requires public officials to act as trustees of the public interest. Inperforming their public duties, the public interest should be paramount. One of thedisadvantages of relying upon these twin notions of public trust and public interest todefine the acceptable standard, is that they are vague and inexact. Yet, if used as definingcriteria, these notions would seem to demand that high standards be expected of electedofficials.

Another issue of significance is whether the standard of behaviour expected ofparliamentarians should be the same for all categories of office holders. For example,should different standards apply to ministers, presiding officers and to backbenchers?Some have argued that because of the different duties and functions performed by theseoffice holders, it is necessary for different standards to apply. There may be some cogencyin this argument. Ministers have significant discretionary power and make decisionswhich can greatly affect individuals and the community. Consequently, it may benecessary to set higher standards of conduct for them than for other categories of electedoffice holders who do not have such power and responsibility. On the other hand, it isfrequently asserted that there are core ethical standards which should apply to allcategories of officials, whether elected or appointed.

7.1.1.2 Appropriateness of A Code of Conduct for Elected Officials

At present there is no code of conduct in Western Australia for Members of Parliamentalthough there is a Ministerial Code of Conduct which is found in the Cabinet Handbook.Ministerial codes of conduct are in place in most Australian jurisdictions and tend to focusalmost exclusively on conflict of interest issues. Because of the greater ministerialdiscretionary power and responsibility, compared with backbenchers, it is generallyconsidered appropriate for a special code of conduct to apply to ministers.

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Victoria is the only Australian jurisdiction with a code of conduct in place for its Membersof Parliament. This is contained in the Members of Parliament (Register of Interests) Act1978 (Vic.). There are a number of parliamentary committees which are preparing codesof conduct for submission to their respective parliaments for approval:

• Parliament of New South Wales Legislative Assembly Standing Ethics Committeeand the Parliament of New South Wales Legislative Council Standing Committee onParliamentary Privilege and Ethics;

• Parliament of Queensland Members’ Ethics and Parliamentary PrivilegesCommittee; and

• Parliament of South Australia Legislative Review Committee.

The two New South Wales Parliamentary Standing Committees have a statutorilyprescribed time limit of one year in which to prepare a code of conduct for their respectivehouses.

Various reports have also made recommendations calling for codes of conduct forMembers of Parliament. Of significance are the following:

• A 1994 Report of the Tasmanian House of Assembly Select Committee on Reformof Parliament, which recommended that it would be desirable for its Members ofParliament to have a code of ethics (Parliament of Tasmania, 1994: 19-21). Thisrecommendation has not been acted upon.

• A 1991 Report of the Australian Capital Territory Legislative Assembly StandingCommittee on Administration and Procedures, which recommended a code ofconduct for members of the Legislative Assembly (Inquiry into the proposed EthicsCommittee Code of Conduct, 1991). To date no action has been taken to implementthis recommendation.

• A draft Framework of Ethical Principles for Members and Senators and a draftFramework of Ethical Principles for Presiding Officers and Ministers, which havebeen tabled in the Commonwealth Parliament for consideration by both houses. Aninformal working group of members and senators was responsible for preparingthese drafts, which have yet to be responded to by the Commonwealth Parliament(Cwlth of Australia Parliamentary Working Group, 1995: 3).

• The 1994 Report of the Committee on Standards in Public Life (Nolan Committee)in the United Kingdom, which undertook a comprehensive examination of codes ofconduct. One of the recommendations of this Committee was for the development ofcodes of conduct for Members of Parliament (Nolan Committee, 1995).

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• The Report on the Review of Codes of Conduct for Public Officials followed acomprehensive review undertaken by the Queensland Electoral and AdministrativeReview Commission (EARC). While recommending that elected officials should besubject to the same fundamental ethical obligations as appointed public officials,EARC called for a specific code of conduct for members of the LegislativeAssembly to be prepared by the Parliament (EARC, 1992: 159). The Parliament ofQueensland Members’ Ethics and Parliamentary Privilege Committee (mentionedearlier) is developing such a code of conduct for members.

• The Western Australia Parliamentary Standards Committee (Beazley Committee) in1989. This Committee drafted a Code of Conduct which was subsequently adoptedby the Western Australian Legislative Assembly for educational purposes, eventhough most submissions it received had rejected the idea of a code of conduct forparliamentarians. The Beazley Committee’s Code of Conduct was generally takenfrom the Standing Orders which it considered to be adequate (Beazley Committee,1989).

It is often asserted that codes of conduct are inappropriate for elected officials. Unlikepublic servants and other appointed public officials, parliamentarians are elected to office.Accordingly, it is argued that the ultimate sanction for unethical conduct in respect ofelected officials, is the ballot box. Additionally, codes of conduct are often seen as beingunnecessary in view of the existing procedures which regulate conduct such as StandingOrders; parliamentary and media scrutiny; criminal law sanctions; political partydiscipline; anti-corruption agencies; and ad hoc commissions.

In Western Australia there are numerous acts which regulate, to some extent, the ethicalobligations of Members of Parliament. These include:

Criminal Code;Official Corruption Commission Act 1988;Constitution Act 1889 and Constitution Acts Amendment Act 1899;Public Sector Management Act 1994;Electoral Act 1907;Salaries and Allowances Act 1975;Members of Parliament (Financial Interests) Act 1992;Parliamentary Privileges Act 1891; andParliamentary and Electorate Staff (Employment) Act 1992.

Standing Orders cover matters such as parliamentary language and conduct, dressstandards, and conflicts of interest. The media has become more vigilant in exposingallegations of both personal and public misconduct of elected officials. This has led someto conclude that the ethical standards of politicians of today are under more scrutiny thanever before. On the other hand, many believe that the existing regulatory measures areinadequate and codes of conduct could provide an appropriate means by which acceptable

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conduct can be judged. It is seen as being anomalous that the public sector and mostprofessional organisations are increasingly relying on codes of conduct whereas codes ofconduct for Members of Parliament (MPs) are rare.

The arguments for and against codes of conduct have been well summarised. Following isa list of arguments commonly used in support:

• Most professions and trades and many public and private organisations now havecodes of conduct and/or ethics. MPs should follow suit – after all it is they whoare never reluctant to impose codes on others.

• New (and old) MPs need some guidance in the proper discharge of their duties andresponsibilities – ‘the educational aspect’.

• There is value in laying down statements of the standards of conduct to whichMPs should aspire – ‘the aspirational aspect’.

• The existing law is not adequate guidance. Conduct that is merely legal is notnecessarily desirable or good. The criminal law sets limits but it does not setstandards of behaviour.

• A written code will help restore some measure of public confidence in theinstitution of Parliament. (Lawson, 1995: 7-8)

The following points have been advanced against a code:

• Parliament is quite different from other institutions. The very nature ofparliamentary representation calls for fierce independence and codes of conductare inconsistent with that independence.

• Any code of conduct would be more likely to be seen by the public as merewindow-dressing. It would be more likely to lower respect for MPs.

• Unless a code has sanctions for non-observance, it is just another set ofmotherhood statements.

• The law already proscribes unlawful conduct – any code which further restricts thefreedom of MPs is unwarranted.

• A code of conduct would only be used by the media to berate MPs and it mighthave unintended and unforeseen consequences.

• The Standing Orders and Parliamentary procedures already provide an appropriatecode of conduct. (Lawson, 1995: 7-8)

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7.1.1.3 Public Perception of Politicians

Throughout our inquiries we have been aware of significant public concern about theperceived decline in ethical standards of politicians. A recurring theme has been the lackof integrity and honesty of elected representatives and a perception that Members ofParliament elevate personal political interests above the interests of those whom theyrepresent. This disdain and cynicism about the ethical standards of politicians also seemsto be directed at the political system itself – a phenomenon which is not peculiar toWestern Australia, but is evident throughout Australia and other countries. While thepublic may perceive that the standard of behaviour of those in public life has declined overthe years, it is difficult to conclude categorically that there has been an actual drop instandards of behaviour. In the United Kingdom, the Nolan Committee stated that:

We cannot say conclusively that standards of behaviour in public life have declined. Wecan say that conduct in public life is more rigorously scrutinised than it was in the past,that the standards which the public demands remain high, and that the great majority ofpeople in public life meet those high standards. But there are weaknesses in theprocedures for maintaining and enforcing those standards. As a result people in publiclife are not always as clear as they should be about where the boundaries of acceptableconduct lie. This we regard as the principal reason for public disquiet. It calls for urgentremedial action. (Nolan Committee, 1995: 3)

The question of whether or not standards have in fact, declined, is one which is difficult tosubstantiate. It has been suggested that the more important issue for consideration is thedetrimental effect on our political institutions of the public’s poor perception ofpoliticians. Public scepticism may, at times be healthy. The negative response of thepublic to allegations of porkbarrelling, cronyism, jobs for the boys and the like may act asa useful constraint upon such behaviour. Yet when scepticism turns to cynicism andcomplacency, it can impair public confidence. Codes of conduct, it is argued, may gosome way towards enhancing the public perception of our politicians by clarifying forthemselves, and the public, the actual ethical boundaries within which they are expected tobehave:

While a code of conduct cannot be expected to create a homogeneous set of attitudes, itwould have the virtue of establishing a common point of reference, a formal guide forboth the public and MPs, that would transcend separate standards based on politicalconsiderations. (Atkinson and Mancuso, 1985: 463)

7.1.1.4 Conflicting Duties and Obligations of Politicians

If a code of conduct is thought appropriate for politicians, it would seem necessary first toattempt to define the fundamental duties and responsibilities of such officials. A code ofconduct may not only define these duties but also provide some guidance for dealing withconflicting duties.

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Some of the duties of a Member of Parliament include responsibility to the:

• public interest;

• electorate;

• Parliament; and

• constituents.

Yet, in attempting to codify these duties and responsibilities, it would seem necessary torecognise the fact that Members of Parliament are also generally members of politicalparties and have party allegiances and duties. These partisan ties may at times conflictwith parliamentary or other public duties. Accordingly, it may be useful for a code ofconduct to recognise that there may be conflict between the diverse roles of members andprovide some guidance on the avoidance of such conflict.

In the Report of the Royal Commission into Use of Executive Power (Easton RoyalCommission), Commissioner Marks, noted:

It is acknowledged that an attempt here to set a standard that members of Parliamentmust avoid a conflict between their personal political interest (including loyalty to theirpolitical party) and the interests of the public in a party political system, would be metwith derision. It is accepted that conflicts of that kind occur in the way the systempresently operates. It is inevitable that it does occur, I think, because an electedrepresentative naturally has a conflict between his or her personal interest in being seenby voters in the best possible light and the interest of the public in exercising itsjudgment on accountable conduct. (Easton Royal Commission, 1995: 7.6.4)

In his findings, Commissioner Marks rejected the argument put to him that a Member ofParliament did not, in law, hold a public office and so had no duty to members of thepublic. He considered that the obligations of elected representatives to the public arefounded in the sovereign power of the people:

Representative government is an integral part of our constitutional fabric. The source ofpower of elected representatives and those selected from them to govern, is the people.(Easton Royal Commission, 1995: 7.4.1)

7.1.1.5 Content of Code of Conduct

If a specific code of conduct is appropriate for Members of Parliament, it is necessary tocanvass the issues it should cover. Codes of conduct which have been developed forelected officials tend to concentrate on conflict of interest, avoidance or regulation. It ismore common for codes of conduct to be established for ministerial conduct. Frequently,ministerial codes of conduct are found in Cabinet Handbooks. There is little variation

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between those in force throughout Australia. These ministerial codes of conduct attempt toprescribe standards for the management of ministers’ pecuniary and other personalinterests and relevant aspects of their personal and official conduct. Matters commonlydealt with in such codes include:

• requirement for declaration of private interests in matters under discussion wherethere is a real or potential conflict of interest;

• prohibition upon engaging in professional practice or in the daily work of anybusiness;

• ministerial expenses or gifts;

• use of information obtained in the course of official duties;

• use of public property;

• relations with the public service; and

• post-separation employment.

As noted, in Australia the only code of conduct for Members of Parliament is thatcontained in the Victorian Members of Parliament (Register of Interests) Act 1978. Thisstatutorily prescribed code not only sets out pecuniary interest provisions, but alsoincludes a general statement that a member’s primary responsibility is one of public duty.

As noted in Chapter 6, the Nolan Committee’s Report established seven principles ofconduct as the basis of conduct for all those engaged in public life, these beingselflessness, integrity, objectivity, accountability, openness, honesty and leadership. Whilethe Nolan Committee considered that the development of an appropriate code of conductshould be left to the members themselves, a draft Code of Conduct for Members ofParliament was attached to its report. This included a statement that ‘[t]he primary duty ofMembers is to their country and their constituents’ (Nolan Committee, 1995: 39).

The Australian Catholic Social Justice Council recently proposed a code of conduct forMembers of Parliament which identified a number of general principles: personalintegrity; listening to the people; modest promises; avoiding the personal; and courage anddecisiveness (Warhurst, 1996).

Eight general principles are set out in the Draft Framework of Ethical Principles forMembers and Senators of the Commonwealth Parliament. These cover the followingmatters:

• loyalty to the nation and regard for its laws;

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• diligence and economy;

• respect for the dignity and privacy of others;

• integrity;

• primacy of the public interest;

• proper exercise of influence;

• personal conduct; and

• additional responsibilities of parliamentary office holders.

It is obvious that there are numerous issues which can be singled out in codes of conductfor Members of Parliament. While the focus has, in the past, been on conflict of interestmanagement, recent proposals for codes of conduct have highlighted broader issues. Inparticular, the role and responsibilities of members and the primacy of the public interest,have been stressed. In the main, the issues covered are dealt with by broad statements andrarely is an example of unacceptable conduct included. It is often argued that generalprinciples are of little benefit as they leave too much scope for the exercise of individualjudgment. On the other hand, codes of conduct which are too specific may be similarlyunsuitable as it would seem impossible to cover all possible eventualities.

7.1.1.6 Development of Code of Conduct

The process of developing a code of conduct is often thought to be as important (if notmore so) than the code itself. An off-the-shelf code of conduct may seem attractive. Yet itis argued that to be successful, there should be some involvement in the development ofcodes of conduct from the people to whom they are to apply.

This was recognised by EARC in its Report on the Review of Codes of Conduct for PublicOfficials. It recommended that the development and implementation of codes of conductfor Members of Parliament should be the responsibility of the Parliament (EARC, 1992:159). Similarly, the Nolan Committee concluded that codes should be based upon theseven principles they enunciated but ‘... be drawn up within each organisation concerned,so that they will be appropriate to their circumstances and will form part of the culture ofthe organisation’ (Nolan Committee, 1995: 18).

One possible disadvantage of leaving the development of codes of conduct entirely toparliamentarians is that this may detract from widespread public acceptance of thesecodes. Additionally, it could be argued that the public should have some role in thedevelopment process. One recent trend has been the establishment of parliamentary ethicscommittees which are responsible for drafting a code of conduct to be submitted to the

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respective house(s) for the approval of all the members (Queensland, New South Wales).Of such committees, the Parliament of New South Wales Legislative Assembly StandingEthics Committee is unique. It is comprised of three community members in addition tosix parliamentary members. Public input may be sought into any of its functions andbefore presenting a code of conduct to the house, the public must be given the opportunityto make submissions.

7.1.1.7 Regulatory Framework

One of the most contentious issues for debate is how codes of conduct for Members ofParliament should be enforced and what sanctions should apply for disciplining breaches.There are diverse viewpoints on this issue ranging from those who advocate a system ofself-regulation to those who support some sort of independent enforcement model.Advocates of a system of self-regulation tend to rely upon traditional notions ofparliamentary sovereignty and the exclusive right of parliament to internal autonomy.Parliamentary privilege is seen as an essential safeguard which requires the parliament tobe able to regulate the activities of members itself. In contrast, those favouring someindependent model argue that parliament is incapable of regulating itself because of theinfluence of party politics. There are numerous possible sanctions which parliament couldapply ranging from censure, a request for an apology, expulsion, declaring a member’sseat vacant, and even sending a member to jail. Yet opponents argue that such sanctionsare rarely applied or, if they are, the matter is decided on party lines.

Most codes of conduct for Members of Parliament, that are either in force or proposed,prescribe a system of self-regulation. It is left to parliament to consider any allegations ofbreaches and impose whatever sanction is thought appropriate. In New South Wales andQueensland, the recently established parliamentary ethics committees are required to assistthe Parliament to deal with such issues.

No legal sanctions are attached to breaches of a ministerial code of conduct. It is left to thePremier or Prime Minister to decide what, if any, action should be taken in the event of abreach. Possible action could include a reprimand, demotion, or request for a resignationof commission.

The Nolan Committee in its Report discussed the issue of enforcement at some length andconcluded that it would be desirable for self-regulation to continue. Even so, itrecommended that a Parliamentary Commissioner for Standards should be appointed ‘... totake responsibility for advising Members on, and playing an independent role in theenforcement of, the House’s rules in respect of Members’ conduct’ (Nolan Committee,1995: 42). Under its recommended model the functions of the ParliamentaryCommissioner for Standards would include:

• advising on the code of conduct and questions of propriety;

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• having responsibility for preparing guidance and providing induction sessions fornew members on matters of conduct, propriety and ethics; and

• having responsibility for receiving complaints about and investigating the conduct ofmembers in this area (Nolan Committee, 1995: 43).

Once having found that there was a case to answer, it was proposed that the ParliamentaryCommissioner for Standards would then refer the matter to a parliamentary committee torecommend appropriate action.

The Committee concluded:

We consider that our proposals to appoint an independent Commissioner and to overhaulthe entire disciplinary procedure for Members should be sufficient to achieve thenecessary detachment without recourse to the courts or indeed any surrender ofprivilege. (Nolan Committee, 1995: 42)

The approach proposed in the report of the Committee of Inquiry Established by the PrimeMinister (Bowen Committee), which examined public duty and private interest, wasbroadly to support a system of self-regulation, it being considered ‘... vital to thecontinuation of good government that the capacity of Members to manage their ownaffairs should not be impaired’ (Bowen Committee, 1979: 106). Yet this Committeecontemplated exceptional situations where public disquiet may be such as to warrant theestablishment of an outside investigatory body. Accordingly, the establishment of a PublicIntegrity Commission was recommended to deal with substantial breaches of the proposedcode of conduct.

The issue of regulation necessarily entails a consideration of the adequacy of the existingsystem of parliamentary accountability. Opponents of codes of conduct supervised andenforced by some independent entity believe this to represent a significant departure fromthe traditional Westminster model, which presupposes that the ultimate sanction againstelected office holders lies in the hands of the electorate.

7.1.1.8 Induction and Training

The present induction and training provided for Members of Parliament tends to behaphazard and quite limited in its scope, with little focus on ethical issues. Some trainingis provided by political parties. In addition, the Clerks of both houses arrange for newmembers to be given an induction session when they first enter Parliament. Little isprovided by way of continuing training. Much of the information given revolves aroundparliamentary procedures and members’ entitlements. A useful summary of the issuescovered in such induction seminars was set out in a paper presented by Mr Peter McHugh,Clerk of the Legislative Assembly:

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Following the recent State election in Western Australia, Legislative AssemblyMembers ... were introduced to the functions of the principal departments of theParliament, shown the physical location of facilities in the Parliamentary building, giventhe basics of establishing electorate offices, and given information on staffing, salariesand allowances, ... the operations and services provided by each Parliamentarydepartment, as well as the Ombudsman and the Auditor General. Some proceduralmatters such as petitions and questions on notice were canvassed ... opening dayarrangements; sources of procedure; government and private members’ business;passage of bills; motions; matters of public importance; role of the Presiding Officer;rules of debate; customs and practices of the House; parliamentary committees andparliamentary privilege. (McHugh, 1993: 3)

In addition to the training provided by Parliament for new members, guidelines have beenprepared by the Ministry of the Premier and Cabinet to assist members in respect of thoseentitlements which are administered by the Ministry.

The extent to which such induction and training may assist new members will no doubtvary depending upon their past experience. Many members tend to be sceptical of thevalue of training with the belief that the only training required is that which comes fromthe school of hard knocks. Such a viewpoint was expressed by a speaker at a 1993Conference of Presiding Officers and Clerks:

You are voted for by the electorate. The skills you need are how to get re-elected – howto communicate with people in the electorate. You do not need the skills that put you allin one mould, so that you are all moulded to be a parliamentarian.

... We are there to legislate and get stuff done for people in the community. I do notthink we need any basic skills other than indoctrination in how parliament works and theprocedures of parliament: then let us get on with the job of doing our best for the peoplewho have elected us. (Bruce, Twenty-Fourth Regional Conference of Presiding Officersand Clerks, 1993: 294)

The issue of whether it would be useful to include ethical education for Members ofParliament in training or induction sessions was raised in a Discussion Paper by theParliament of New South Wales Committee on the Independent Commission AgainstCorruption. It was noted that in one of the Commission’s inquiries, the thenCommissioner had become aware that little was done to advise new members of the natureof the office they had been elected to and their competing duties and interests. Manysubmissions which the Committee received on this issue were supportive of the idea of anethical education program for Members of Parliament. In the Discussion Paper, theCommittee also addressed the issue of entitlements and concluded:

The Committee is convinced there is a need for the Parliament to address the issue ofMembers’ entitlements in greater detail. The Committee favours that this issue beaddressed in a Parliamentary handbook, rather than in a Code of Conduct. This view isbased on the belief that a Code should be an aspirational document rather than a specific

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list of do’s and don’ts. (Parliament of New South Wales Committee on the ICAC,1994: 78)

At the federal level there has been a call for clearer guidelines to be formulated onMembers of Parliament’s use of Commonwealth resources and staff (Department of thePrime Minister and Cabinet, 1995).

For ethics education to be useful, it would be necessary to consider:

• whether to include ethics education in the existing training and induction sessions orconduct separate sessions;

• whether the sessions should only be available for new members or should be held ona regular basis for all members;

• what form should such ethics education programs take;

• who should be responsible for conducting the programs; and

• whether they should be compulsory.

It is possible that there would be strong resistance from Members of Parliament to asuggestion that they undertake ethics education. They may be concerned that sucheducation could have a stifling effect and reduce the representative nature of parliament.Yet the community may be supportive of a program of ethics education for politicians. Abeneficial consequence of such training could be that Members of Parliament would bemore focused upon the ethical implications of their office. It may also assist in enhancingthe public perception of politicians and the role they play.

An additional aspect, is whether there is a need for greater public education about the roleplayed by Members of Parliament in our system of government. It could be argued thatone reason for the public’s poor perception of politicians could be a lack of understandingof the numerous responsibilities placed upon Members of Parliament. There may be somebenefit in clarifying the roles and responsibilities of Members of Parliament and ensuringthat there is public access to such information. We intend to address this issue inReport No. 5.


The Royal Commission into Use of Executive Power (Easton Royal Commission) wasappointed in June 1995. The terms of reference required Commissioner Marks to makejudgments about the propriety of conduct by holders of executive power and of publicoffice in relation to the tabling of a petition to the Legislative Council on 5 November1992 (Easton Royal Commission, 1995: 1). In his Report, Commissioner Marks madeadverse findings against two Members of Parliament, one being a former Premier. Both

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were found to have made statements which were untrue and misleading. The propriety oftheir conduct was assessed in the context of principles of representative governmentwhich, in summary, were stated as being:

• the source of sovereign power is the people;

• the people have the right to know and the freedom to discuss, criticise and judge theconduct of their elected representatives;

• the right and freedom to discuss, criticise and judge the conduct of electedrepresentatives (Members of Parliament) can only be exercised if that conduct isknown or made known;

• untrue denial of involvement in conduct is a denial of the right to know and of thefreedom to discuss, criticise and judge that conduct; and

• Members of Parliament, as elected representatives, have an obligation to the peoplenot to act in their personal interests at the expense of interests of the public.

There was considerable public controversy over the establishment of this RoyalCommission and the terms of reference. The findings also generated public debate aboutthe ethical standards of Members of Parliament and, in particular, whether the public isentitled to expect politicians to tell the truth. Commissioner Marks made the followingcomments in relation to this issue:

There is a tendency among commentators, and among others, to attach less significanceto lies by public figures because so many tell them so often. Prevalence of suchmisconduct does not excuse it or make it any less serious.

There is more than one aspect of untruthfulness by elected public figures. It damages notonly the trust of the people in their representatives but also their trust in therepresentative system. Moreover, untruthfulness in high places has the effect of keepingfrom the public, knowledge of events which it is entitled to discuss and judge. The healthof representative government and the freedoms it promises depend on open government.(Easton Royal Commission, 1995: 112)


Throughout our inquiry into this and other Specified Matters, we have noted considerablepublic disillusionment with politics and politicians generally. There is an expectation thatthose in public office, especially those in higher public office, should, by their actions, setan example of appropriate behaviour. These sentiments were strongly expressed in manyof the submissions we received. For example, in a written submission Mr Ray Keanconsidered that it was appropriate for separate codes of conduct for Members ofParliament because:

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... it is their behaviour which sets the standards for their officials and if they are not seento act in a manner themselves then how can we expect the underdogs to behave anybetter. It is ministers and Members of Parliament that set examples.

In his submission, Mr J.E. Knox described codes of conduct in terms of fostering a‘Climate of Virtue’ and considered that they could have useful societal consequences ifapplied to Members of Parliament:

The process of designing and securing agreement to a basic Code for all people anddeveloping specific Addenda should start with Ministers and Members of Parliament inorder to clearly display that Codes are going to apply to the high as well as the low.... the resultant Climate of Virtue – which is what Codes are all about – might just startto wash off on the general public.

This role element was stressed by Mr James Anderson. In his written submission, heagreed that core ethical principles may apply to all public officials, but:

Remember there is a ‘role element’ involved here. Whilst there may be general coreprinciples – should not those demanded of Ministers and CEOs be more critical than thatof a clerk.

He concluded that there may be some usefulness in the development of separate codes ofconduct for Members of Parliament and ministers:

... as the ramifications of loss of confidence and trust in one’s representatives andgovernment will have a considerable effect on our democratic values and understandingof freedom and tolerance.

As to the standard of conduct that we should expect of our public officials Mr Andersonstated:

The highest – while public officials do reflect a cross section of the general community,the mere fact they exercise to a greater or lesser degree some administrative impact uponthe public not possible outside that field – surely demands high standards of conduct.

One of the few who believed that it would be inappropriate to have separate codes ofconduct for Members of Parliament and ministers was Mr Allan Mottram. He stated:

... Parliament as a [whole] should have to abide by the same laws that Parliament makesfor other people, ie the public service, after all they are public servants, any specialcodes needed for parliamentary employees or members could be handled in the sub-heading class the same as every body else.

The need for Members of Parliament and ministers to develop their own codes of conductwas a point which was highlighted in the submission from the Commissioner for PublicSector Standards, Mr Digby Blight:

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In relation to Members of Parliament and Ministers, it would in my view beinappropriate for other external parties to develop their codes. As is the approach beingdeveloped for the public sector, agencies will have the capacity and a methodology toenable them to develop their own specific codes, which will be relevant to their ownoperations and to the industries in which they interact with on a daily basis. In thatregard it is my view that Members of Parliament and Ministers should also, in acollaborative way, develop their own specific codes.

However, it is critical that for any code developed by Members of Parliament andMinisters, that this takes into account the codes developed for the public sector. Electedofficials need to ensure that their actions or decisions do not inadvertently place publicsector officials in positions whereby, in carrying out their orders or directions, theycontravene the code of ethics or codes of conduct which are applicable to theiremployment in the public sector.

The importance of community involvement in the development of codes of conduct forMembers of Parliament was noted in a submission from Mr R. Strickland. He consideredthat:

The NSW initiatives of including community members on the Parliament committee[Parliament of New South Wales Legislative Assembly Standing Ethics Committee] iscommendable.

As to the standard of conduct that the public is entitled to expect from public officials, heconcluded:

Holders of Public Office, whether Servants, elected Councillors or M.P.’s should at alltimes act with regard to the best interest of their masters of electors firstly. Secondly, inthe interests of their Party or Associates and lastly – from personal interest, orpromotion.

Dr Elizabeth Constable MLA, after first questioning whether there was a need for a codeof conduct, concluded:

Despite the actual and perceived limitations of codes of conduct, on balance a code orcodes would benefit the community. Furthermore, we have reached a point where thecommunity needs a code of conduct as part of the process of healing the politicalwounds of the 1980s and restoring public faith and confidence in public officials.

In highlighting the need for training and other measures to supplement codes of conduct,Dr Constable mentioned the fact that:

As a new member of Parliament in 1991 I received no formal induction. It was necessaryto ask questions, seek information and obtain guidance as required. Many moreexperienced members of Parliament gave me very helpful advice, but my ‘education’about procedures, ‘rules and regulations’ as they apply to Members of Parliament wasrandom.

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She thought that it would be useful for some community input into developing codes ofconduct ‘... so the community can contribute to the definition of the behaviour expected ofpublic officials’. Additionally Dr Constable spoke of the need for codes of conduct to beavailable to the public.

At a public hearing in Perth, Dr Michael Wood, a former Public Service Commissioner,also commented on the issue of training for parliamentarians:

... I have raised with politicians and ministers at different times the issue ofdevelopment, training, education. It is usually greeted with some circumspection andsome uncertainty. One of my ministers used to regard Yes Minister as good training forthe public service and he thought that if that was the sort of thing to come up then hedidn’t really want to be part of it ... I would support induction of parliamentarians morethoroughly than they receive at present. It is predominantly related to parliamentaryprocedures.

Mr Robert Eadie, the Parliamentary Commissioner for Administrative Investigations(Ombudsman) stated in his written submission that there was a need for a separate code ofconduct for ministers and Members of Parliament because:

... of the greater extent to which problems can arise for them in relation to such mattersas conflict of interest (and loyalties) and political donations.

One of the few who expressed doubts about the benefits of codes of conduct was Mr JohnHyde, a former federal Member of Parliament, who stated at a Perth public seminar:

Since we know and our pollies know more or less when they are behaving badly, like therest of us, I might add, I don’t think a code of conduct is going to make a lot ofdifference ...

He concluded:

In summary, I’m not opposed to codes of morality, but I don’t have much faith in them.Standards of public probity will be raised by letting the light in into what public officialsdo, and I can think of nothing that is even approaching that in importance.

Similar ambivalence was expressed by a former minister, the Hon. Keith Wilson at a Perthpublic hearing:

It may be one solution. My own intuition is that everybody has some instinct about whatis right and what is wrong whether they have religious background or not, and I think inthe past we have depended very much on that natural instinct or conscience that peoplehave a certain agreement about in terms of the common good and including what is goodfor society and what is good government and those sort of issues. I am not sure that ifthere has been a loss of that whether any code, even if it is a written code, can really

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recover it but it seems it is the only solution that has been put forward so far that maymake a difference.

The question of what sanctions should apply to breaches of codes of conduct and theappropriate enforcement procedure was discussed by many of those who madesubmissions.

Ms Judie Pettitt stated at a public seminar held in Karratha that:

In relation to parliament it would seem that the parliament itself would have to manageand control and monitor that code.

Mr Eadie, in his submission, stated that:

The most appropriate mechanism for enforcing codes of conduct for elected officialsmay be a Parliamentary committee system as proposed in Queensland and the UK. Theremay well be a need for such a Parliamentary ethics committee.

Dr Constable discussed the issue of self-regulation and stated that:

The community is no longer confident that abuses of privilege can be adequately dealtwith ‘in house’ ... and they will have similar misgivings about breaches of codes ofconduct.

The Commission [on Government] itself supports the establishment of a standingcommittee of each House of Parliament to hear complaints from members of the publicwho are aggrieved by an alleged abuse of parliamentary privilege.

It is imperative to protect the sovereignty, powers and privileges of the Parliament, andfor this reason it is not acceptable for any external body such as a Court or disciplinarybody to sanction a member of parliament for breach of a code.

However, I support the establishment of a parliamentary standing committee in eachHouse which could hear public complaints about breaches of a code. There is no reasonwhy the committee could not also hear complaints concerning abuses of privilege.

The Australian Democrats attached to its submission a copy of a discussion paperprepared by Senator Cheryl Kernot, its Parliamentary Leader. In that discussion paperSenator Kernot calls for amendments to the Commonwealth Parliament’s DraftFramework of Ethical Principles for Members and Senators. She outlines the AustralianDemocrats’ proposed three-tier enforcement structure, comprising a ParliamentaryCommissioner for Standards, an Ethics Committee of Parliament and reforms toParliament itself:

The Commissioner would send a report to the Ethics Committee, if a prima facie casewas made out.

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The Ethics Committee, on which neither the Government nor the Opposition would havea majority but rather the balance of power would be held by four communityrepresentatives, would then conduct public hearings on the alleged breach and reportappropriate action to the Parliament, through the Privileges Committee.

Ultimately, the decision of whether there should be a sanction – ranging from areprimand to expulsion – would then be up to Parliament.

Mr James Anderson suggested there was some benefit in establishing a parliamentaryethics committee. He wrote:

I consider that such a committee would encourage a developing appreciation of ethicalstandards in public life generally.

He proposed that appropriate sanctions for a breach of conduct might include being:

... subject to Parliamentary censure, fines, loss of ministerial office, loss of taxpayerfunded proportions of superannuation, and expulsion.

Mr Eric Stein, in his submission, outlined what he perceived to be the public’s inability topenetrate the ministerial system of accountability. He went on to state:

Until they themselves are taken down from this pedestal and put under scrutiny and[made] accountable themselves the system will always break down. After all whyshouldn’t they be accountable for misconduct it is they who guide the ship so to speak.

At a Perth public hearing, the Hon. Keith Wilson commented that parliamentary ethicscommittees are commonplace, but he suggested:

The problem about parliamentary committees in our system is that they usually have apolitical edge to them in that the party in government usually are in a majority andtherefore it’s difficult to see how they could have an objective role in the parliamentarysystem, but I think it would be worth looking further at the idea of a parliamentary ethicscommittee if under presumably changed standing orders the committee could be notpartisan.

In commenting on the suggestion of an independent parliamentary commissioner, heconcluded:

... I can see the upholders of our system being very opposed to that; that is, those whohave a very strong concept of the Westminster system, because it would seem to betaking power away from the parliament. On the other hand, I think because of thepredominance of the political party machines on individual members of the parliament itultimately may be necessary to have an independent recourse for Members ofParliament.

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7.1.4 Analysis

It is difficult to clarify the standards of conduct expected of Members of Parliament. Yet,from submissions, it is apparent that the public expects high standards of ethical behaviourfrom elected representatives. Whether or not the ethical standards of politicians have infact, declined over the years, is not something which can be accurately measured. There isa strong perception within the community that standards have dropped. This has worryingimplications for our political institutions. Lack of faith in our politicians can lead to a lackof faith in the system itself. It has been stated that:

Members of Parliament do, in many ways, reflect the society that elects them, howeverleadership always brings with it a demand to raise conduct above the standard of thosearound, to set an example for others to follow. (ICAC, 1991: 53)

We concur. Because of the trust placed in elected officials it is essential that theydischarge their public duties in accordance with high ethical standards.

Codes of conduct are suggested as one possible means of raising standards and restoringpublic confidence. They may also ensure that members are fully aware of the standardsexpected of them. On the other hand, many are sceptical of their usefulness, particularlyfor elected officials. Those critical of codes of conduct often argue that they will notprevent unethical behaviour. Others insist that the existing scrutiny provisions aresatisfactory. This was the conclusion reached by the Beazley Committee. In its Report itstated that in ‘... most respects there is an adequate code already available in the form ofthe Standing Orders and practices of the House’ (Beazley Committee, 1989: 170). Stillothers argue that the ethical standards of politicians are best left to the public to decide – atthe ballot box. We conclude that it is beneficial to have codes of conduct for Members ofParliament. In reaching this conclusion we realise that codes of conduct may need to besupported by other measures, including diligent enforcement of standing orders and actionfollowing breaches of privilege. Additionally, legislative and other requirements fordisclosure of members’ private interests should be highlighted and regularly reinforced.

Having decided that codes of conduct should be introduced, it is necessary to giveattention to:

• how they should be developed;

• their content;

• sanctions and enforcement processes; and

• associated measures, such as induction and ethics education, to buttress codes ofconduct.

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While it would be possible for us to draft a code of conduct which we consideredappropriate, we have not done so. We accept that if a sense of ownership of andcommitment to a code is to be achieved, it is essential that the people who are affected byit should be involved in its development. The degree of detail in which the code is to bedrafted, should also be left for the members themselves to decide. Obviously a code ofconduct which attempts to address the conduct required of members in every conceivablesituation, would be of limited value. On the other hand, codes of conduct which aredrafted too vaguely may be similarly ineffectual.

The seven principles enunciated in the Nolan Report, namely: selflessness, integrity,objectivity, accountability, openness, honesty and leadership, provide a useful basis uponwhich to build a code of conduct. Many submissions listed these, or similar values, asbeing desirable principles around which a code of conduct should be drafted. In addition,the duties and responsibilities of Members of Parliament should be explicitly stated.

There are difficulties with leaving the development and enforcement of codes of conductin the hands of parliamentarians themselves. These difficulties were highlighted in manyof the submissions we received. A particular issue related to preventing codes of conductfrom becoming part of the political process. This raises the related issue of self-regulationand whether there is a need for some independent system to oversee the investigation ofalleged breaches and recommend appropriate sanctions. In the model it proposed, theNolan Committee introduced an element of independence. In its Report it recommendedthe appointment of an Officer of the House (the Parliamentary Commissioner forStandards), to provide advice and guidance on ethical matters and conduct investigationsfor alleged breaches. The Australian Democrats have recommended a similar model forthe federal Parliament. Many submissions also called for some independent enforcementsystem, it being considered futile to leave the policing of codes to parliamentariansthemselves.

On the other hand, Members of Parliament tend in the main, to be strongly opposed to anysuggestion of introducing an element of independence into the existing self-regulatorysystem. Such a suggestion is seen as threatening the sovereignty of parliament andparliamentary privilege, both of which are considered key components of ourparliamentary system.

We conclude that breaches of codes of conduct should be dealt with by the Parliamentitself. A Standing Committee in each house of Parliament should be responsible for:

• drafting a code of conduct for consideration by members of each respective house;

• providing advice and assistance to members on ethical issues generally;

• overseeing training programs for members on ethical issues;

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• investigating alleged breaches; and

• making recommendations to the respective house on appropriate sanctions forbreaches.

If, as recommended in Report No. 1, a Standing Committee on Privilege is established ineach house of Parliament, these Committees might be considered appropriate to take onsuch additional responsibilities. There should be regular reviews of codes of conduct andthe committee should conduct a review after three years to assess its own effectiveness.Such a review process should call for public submissions. If, at the end of this reviewprocess, it is concluded that the committee is not operating effectively, then anindependent commissioner should be appointed.

We do not believe it appropriate that a breach of a members’ code of conduct should, ofitself, be included within the proposed definition of ‘improper conduct’ recommended inReport No. 2, Part 2 unless the breach constitutes ‘improper conduct’ as defined elsewherein Recommendation 66. Accordingly, the proposed Commission for the Investigation,Exposure and Prevention of Improper Conduct should not have jurisdiction to investigatealleged breaches of such codes of conduct where a breach of the code is the only conductcomplained of. In New South Wales the legislation governing the IndependentCommission Against Corruption (ICAC) has been amended in such a way that asubstantial breach of a prescribed code of conduct for Members of Parliament may be thesubject of investigation by ICAC where that action falls within s.8 of the IndependentCommission Against Corruption (Amendment) Act 1994 (NSW) (ICAC Act).

Codes of conduct should be more accessible to the public. Accordingly, there should be arequirement for codes of conduct when approved by the respective house, to be tabled sothat they can be readily available to members of the public. This requirement should alsoapply to ministerial codes of conduct which are only found in the Cabinet Handbook.

The effectiveness of codes of conduct would be enhanced by continuing ethics training.The existing training of Members of Parliament is inadequate in that it is confined to newmembers and does not specifically address ethical issues. This should be remedied and amore comprehensive program of ethics education for members developed and held atregular intervals.

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1. There should be a Standing Committee in each house of Parliamentwith the following responsibilities:

(a) to prepare a code of conduct for members of the respectivehouses of Parliament within 12 months;

(b) to prepare and conduct induction programs on ethical issuesfor new members and continuing education on ethical issues forall members;

(c) to give assistance and advice to members on ethical issues;and

(d) to consider alleged breaches of a code of conduct and makerecommendations to the respective house(s) on appropriatesanctions.

2. A breach of a code of conduct applicable to ministers or otherMembers of Parliament shall not, of itself, constitute improperconduct as defined in our Recommendation 66.

3. There should be regular reviews of the effectiveness of approvedcodes of conduct and the performance of the respective StandingCommittee(s) in carrying out their functions.

At these reviews the public should be invited to make writtensubmissions and appear at public hearings.

If, from the weight of public opinion, it can be concluded that theStanding Committee(s) have not carried out their functionsadequately, then the Parliament is to appoint an independentcommissioner to be responsible for overseeing the ethical standardsof Members of Parliament.

4. A code of conduct (including a ministerial code of conduct), onceapproved, should be tabled in Parliament.

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7.2 ELECTED MEMBERS OF LOCAL GOVERNMENT


7.2.1.1 Standards of Behaviour

Local government members are the elected representatives of a local governmentauthority. Unlike Members of Parliament, the positions they occupy under the LocalGovernment Act 1960 (LGA 1960) are unpaid. But as elected members, they, like otherpublic officials, occupy positions of public trust and have considerable power over theallocation of resources. Municipal ratepayers and residents have a right to expect that theywill perform their duties in a fair and unbiased manner, unaffected by personal gain or selfinterest.

The elected members of a local government collectively form a corporate body workingfor the community, responsible for making decisions on the following matters:

• the development of council policy;

• the direction and control of the affairs of the municipality;

• project priorities, including the plans to achieve them; and

• the periodical review of council’s programs and performance (WA DLG, 1995: 3).

Decisions made by councils, particularly those on matters of zoning, developmentapproval, council expenditure and the organisation of traffic, have the potential toadvantage some people and disadvantage others. Decisions such as these often give rise toallegations of self interest. Over the past few years the conduct of some local governmentelected members and staff has been the subject of considerable concern, much of itreported in the media. Currently, there is a Royal Commission into matters relating to theCouncil of the City of Wanneroo, following an initial inquiry conducted by Mr Peter Kylein 1992. Other recent inquiries into aspects of local government have included the Inquiryinto the Shire of Boddington (1994), the Report into the Busselton Shire Council 1988-1992 and the Report of the Panel of Inquiry Concerning the Council of the City ofCanning (1991). These inquiries, and other allegations of corrupt or improper behaviourin local government, have led to a perception that the conduct of local governmentmembers is below the standard which the community expects.

Some problems highlighted by these inquiries include:

• defamation and conflicts between elected members, between elected members andstaff and between councils and rate payers;

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• inconsistent application of planning procedures and subjective decision-making inrelation to development approvals;

• conflicts of interest;

• inadequate meeting procedures and minuting;

• budgeting and financial procedures;

• operational problems; and

• a poor public perception of, and inconsistencies in, the tender process (WA DLG,1994a).

The majority of problems identified do not involve impropriety in a legal sense. ‘Despitethis, they were indicative of either a breakdown in the operation of unbiased, objectivegovernment or a breakdown in the public perception of how local government shouldoperate’ (WA DLG, 1994a: 2). During the course of our inquiries, Mr Kyle, the formerinvestigator into the activities of the Wanneroo City Council, said that ‘he had receivedallegations of corruption outside the Wanneroo inquiry’s terms of reference whichwarranted further investigation’ (West Australian, 17 February 1996).

In an address by Mr Kyle to the Institute of Municipal Management (IMM), he stated:

There is no doubt that we have not yet found a way to deal with the problem ofcouncillors promoting their own individual self interest. Just as importantly we have toface the reality that a few rotten apples are making the whole barrel appear to a scepticalpublic to be rotten also. The vast majority of councillors and staff in local governmentare squeaky clean in their handling of the business of their councils. Yet the publicperception is that local government is full of people promoting their own interests.(Kyle, 1992b: 2)

Persons standing for election to local councils come from wide variety of occupations, agegroups, cultural backgrounds and have a range of qualifications. An individual electedmember’s expertise in, and understanding of, the issues involved in the properperformance of their duties can vary greatly. As with Members of Parliament, it isfrequently argued that the standard of behaviour of elected members should be higher thanthose of the wider community. The development of a code of conduct for localgovernment elected members could be useful in establishing the standard of behaviour tobe expected.

7.2.1.2 Appropriateness of Codes of Conduct

Given the role of local government in our society, it is necessary to consider howappropriate a code of conduct would be for local government officials. It has been stated:

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A code of conduct or ethics provides a reference framework for local authority personneland facilitates self-regulation of behaviour by providing guidelines relative to acceptableconduct. In addition to helping to maintain high standards of conduct and citizenconfidence in the integrity of a local authority, a code reduces ambiguity with respect towhat is acceptable behaviour by providing standards for personnel uncertain of thepropriety of a contemplated action. A code emphasises positive as well as unethicalbehaviour. (Zimmerman, 1982: 34)

The need for local government elected members to develop a code of conduct was alsonoted in the Inquiry into the City of Wanneroo Report which stated that:

A code of conduct should be established to provide a guide outlining the ethical andmoral obligations imposed on a person holding a public office. Aside from providingguidance to those persons, it would provide a yardstick by which the performance inrespect to impartiality, honesty and integrity could be judged.

Although it would not be appropriate to enshrine such a code in legislation, it should begiven recognition within the legal framework. (Kyle, 1992a: 13)

During our investigations, we wrote to all local government authorities to determine how,and if, codes of conduct were used. Approximately 20 per cent of the 99 local governmentauthorities that responded, stated that they had adopted codes based on the Draft ModelCode of Conduct for Elected Members and Staff produced by the Western AustralianMunicipal Association (WAMA). The Draft Code has received endorsement from theMinister of Local Government, members of the WAMA, the Department of LocalGovernment, the Country Shire Councils’ Association and the Country Urban Councils’Association. The WAMA is awaiting endorsement from the IMM before it officiallylaunches the Code in April 1996.

Many councils have adopted codes of conduct voluntarily. Prior to the passage of theLocal Government Act 1995 (LGA 1995), which will come into force in July 1996, theonly state that had legislated to require local governments to prepare a code of conduct forelected members was New South Wales (s.440, Local Government Act 1993 (NSW)). TheLGA 1995 is discussed in Section 7.2.2.

The existing regime in Western Australia provides alternative means of regulating theconduct of elected members. These are by the use of statute laws and local governmentby-laws. Councils have the power to make by-laws on a broad range of issues includingthe behaviour and conduct of elected members. For example, the Shire of Albany hasadopted by-laws that relate to the Conduct of Proceedings and the Business of the Council,which amongst other things state that:

The President may call the attention of the Council to continued irrelevance, tediousrepetition, unbecoming language or any breach of order, or decorum on the part of aCouncillor and may direct the Councillor if speaking to discontinue his speech andthereupon the Councillor shall cease speaking. (Government Gazette No.77, 1981:76)

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Under the Local Government Act 1960, local government authorities are not required todevelop a code of conduct, although the Act does provide some guidance on particularissues such as corruption and pecuniary interest.

7.2.1.3 Content of Codes

The codes of conduct that have been developed for local government elected memberstend to concentrate generally on conflicts of interest, as these are the main areas of publicconcern in relation to local government decision making. In addition, it may be necessaryfor codes of conduct to address the issues highlighted by the recent inquiries into localgovernments.

The Western Australian Municipal Association (WAMA) has developed a draft code ofconduct in consultation with its members. It addresses issues not covered by legislation orregulations. These include:

• conflict and disclosure of interests;

• personal benefit;

• conduct of members and staff;

• dealing with council property; and

• corporate obligations (WAMA, 1995: 5).

The specific matters included in the code of conduct prepared by the New South WalesMinister for Local Government and Co-operatives (NSW DLG, 1994) are:

• Conflict of interest:

– What is the special duty of an elected member, member of staff and delegate?– When does a conflict of interest arise?– How should a conflict of interest be dealt with?

• Other responsibilities of elected members, members of staff and delegates:

– equitable treatment of people and situations;– bribes, gifts, benefits;– use of Council’s resources; and– use of information.

• Particular obligations of staff.

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• What are the legitimate expectations of an elected member, member of staff anddelegate?

• Reporting a conflict.

• Breaches of the code.

Section 440 of the New South Wales Local Government Act 1993 provides that councilsmust prepare or adopt a code of conduct to be observed by elected members, members ofstaff and delegates of the council.

In addition, the Independent Commission Against Corruption is developing Guidelines onManaging Conflicts of Interests for Local Government Councillors as well as Guidelineson Councillor Staff Relations. These are expected to be released in April 1996.

7.2.1.4 Public Access

One of the many arguments in favour of developing a code of conduct for electedmembers is that the code will help improve the public’s perception of local governmentelected members. For this to happen, the code of conduct adopted or prepared by a councilmust be readily accessible to the public. In addition, it can be argued that elected membersshould be required to make a public declaration to abide by the code. A public declarationwould lift the profile of the codes and demonstrate that the elected member is not onlyaware of the code but also committed to its principles.

7.2.1.5 Regulatory Framework

As we noted previously, the issue of the enforcement of codes for elected officials and thesanctions, if any, that should be applied, is a matter of contention. Some argue that asystem of self regulation should apply while others are in favour of an independentenforcement model. It has been noted:

Guidelines alone are inadequate in providing sufficient advice to officials andemployees. What is needed is a mechanism to provide advice inexpensively and quicklyrelative to contemplated actions raising questions of propriety. Experience demonstratesthat an appointment of an Ethics Officer or Board of Ethics is a most successful devicefor handling this function. (Zimmerman, 1982: 36)

Some argue that ethics boards or committees should also have regulatory functions. Asdiscussed in 7.1.1.3, in relation to Members of Parliament, the Nolan Committeerecommended the use of a Parliamentary Commissioner for Standards responsible foradvising on and enforcing the house’s rules. Some argue though, that the ultimate sanctionagainst elected officials is the ballot box and that it is not appropriate for external bodiesto supervise and enforce. Accordingly, it has been argued that self regulation of elected

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members by the council in conjunction with public scrutiny is all that is needed to enforcecodes of conduct.

7.2.1.6 Other Measures to Supplement Codes of Conduct

As noted earlier in this Report and discussed further in Chapter 8, induction andcontinuing training in ethics are often thought to be as useful, if not more useful, thancodes of conduct in assisting public officials to identify and resolve ethical dilemmas. InWestern Australia, the Department of Local Government, the Western AustralianMunicipal Association (WAMA) and the Institute of Municipal Management (IMM)encourage the training of all elected and appointed staff in areas of compliance andlegislative responsibility. The training provided is not compulsory. Newly electedmembers are encouraged to attend the ‘Councillors Induction Course’ which is run by theLocal Government Professional Development Committee. The 1995 New CouncillorWeekend, run by the committee, included lectures on the following topics:

• roles and responsibilities of elected members;

• role of senior staff and relationship to elected members;

• conduct of meetings;

• standing orders;

• privilege and defamation; and

• pecuniary interest.

In addition, elected members have access to publications produced by the Department ofLocal Government. These include:

• Local Government in Western Australia: A Councillor’s Guide;

• Standing for Council: A Guide for Local Government Election Candidates; and

• Problems to Avoid: Outcomes of Recent Investigations into Local Government.

The 1995 edition of Local Government in Western Australia: A Councillor’s Guideincluded the Voluntary Code of Conduct Principles produced by WAMA and thePecuniary Interest Handbook prepared by the Department in 1985. The WAMA alsoproduces a monthly publication aimed at elected members called the Western Councillor.

Training support for individuals and local government is also provided by the followingorganizations:

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• Local Government Professional Development Committee;

• Municipal Training Services; and

• Local Government Industry, Employment and Training Council.


The Local Government Act 1995 (LGA Act 1995) was passed by Parliament in the lastsession of 1995. It will not come into operation until 1 July 1996. This Act contains anumber of provisions which aim to strengthen the accountability of elected and appointedlocal government officials to the public. These include:

• Section 5.103, which requires ‘every local government to prepare or adopt a code ofconduct that is to be observed by council members, committee members andemployees’. These codes are to be reviewed within twelve months of each ordinaryelection and amended where necessary.

• Section 5.103(3), which allows regulations to be made that prescribe the contents ofthe codes of conduct and matters in relation to the codes of conduct. While the Act issilent about the enforcement of the code, regulations can prescribe enforcementprocedures.

• Provision to enable local government authorities to adopt their codes of conduct aslocal laws.

• Transitionary provisions in schedule 9.3, which require the first code of conduct tobe drawn up within one year of the commencement of the Act.

• Provisions to strengthen the disclosure requirements of the 1960 Act by providingfor a mandatory Financial Interests Register (s.5.88), and for the disclosure of director indirect financial benefit (s.5.65).

• Section 5.87, which provides for discretionary disclosure generally in addition to themandatory disclosure requirements. It states that a relevant person may disclose inany return, any direct or indirect benefits or liabilities, whether financial or not, thatthe person considers may appear to raise a conflict between that person’s privateinterests, and duty as a council member or employee.

The LGA 1995 also defines the roles of the council, the mayor or president, deputy mayoror deputy president and individual elected members. It provides a clear distinctionbetween the representative and policy making roles of elected members and theadministrative and advisory role of the chief executive officer and other staff.

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Many of the letters we received in response to our survey on codes of conduct recogniseda need to clarify acceptable behaviour in the form of a code of conduct. In hiscorrespondence, Mr L. L. Metcalf, Chief Executive of the City of South Perth stated:

I believe that Codes of Conduct are essential to the effective operations of LocalGovernment. They provide written guidelines to both elected members and employeesand should provide sufficient detail to clearly identify the behaviour expected.

This sentiment was supported by Mr G. L. Keeffe, Shire Clerk of the Shire of Tammin,who stated in his letter that:

Codes of conduct are beneficial to ensure employers and employees know what isexpected of them. If there were no codes then such action to prevent misconduct ortaking of appropriate action would be difficult.

Mr Stephen Tindale, Town Clerk of the Town of Narrogin, made an interesting analogy inhis letter to the Commission, stating that:

The codes can be likened to the rules of a game of Monopoly. Generally everyone knowsthe rules and the game is played with little fuss.

Every now and then however, someone tries to interpret the rules a little differently. Atthat point in time it is necessary to refer to the written rules (ie. the codes of conduct andethics) in order to resolve a particular issue. Without the written rules, the game canbecome a little too free-wheeling and may disadvantage some of the players.

Codes of ethics and conduct are seen as being highly beneficial in a world of increasingchange.

Mr Kenneth Donohoe, Senior Administration Officer of the Town of Port Hedland,expressed a more cynical view of the benefits attributed to codes of conduct in his letter tothe Commission:

Codes of conduct are only as useful as those individual officers who choose to read themand abide by their stated principles. With due respect the example of the first Code ofConduct ever written, the Ten Commandments is put forward and the question askedhow beneficial are they considered to be!

In response to the issues raised in the Discussion Paper No. 9, Cr Alison Comparti JP,from the Shire of Donnybrook-Balingup, submitted that:

The code should be signed when a candidate nominates for election or a public servantsigns an employment contract ... [codes] would provide a means by which people couldbe removed from their position when found in breach of the code.

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Mr L.L. Metcalf, from the City of South Perth stated in his letter that:

Enforcement of Codes of Conduct is relatively straight forward in the case of employeeswhere the normal disciplinary measures can be applied if necessary. This is not the casefor elected members and at the moment the only option is a voluntary Code whichcannot include any sanctions for violation by an elected member. I would consider this asignificant weakness in the current system and while I would hope that the revisions tothe Local Government Act will deal with this matter I am not aware of any proposedenforcement provisions.

Mr R.F. Coffey, Town Clerk of the City of Wanneroo, agreed with this view in his letterto the Commission:

Whilst it is possible for Codes of Conduct/Ethics to be prepared, they are in my opinion,not worth the paper they are written on unless there is some enforcement provision thatcan result in a penalty if there is a transgression. In other words any Code is only as goodas the honesty and integrity of persons to which the code applies. I also recognise that acode of conduct may assist honest people to understand the level of probity that isexpected of a person holding public office.

The requirement in the Local Government Act 1995 for every local government to adopt acode of conduct to be observed by council members, committee members and staff issupported by the Western Australian Municipal Association (WAMA), which stated in itssubmission that:

WAMA supports the introduction of a Code of Conduct of Local Governments. It issuggested that whilst a Code of this nature will certainly assist in promoting ethicalbehaviour, its ultimate success in preventing or eliminating corrupt or improper conductwill be dependent upon the emphasis placed upon it by individual Councils andCouncillors. The enforceability of the Code, which is not alluded to in section 5.103 ofthe new Local Government Act, will rest with each Local Government who will be ableto regulate punitive measures and collective responsibilities under Local Laws. WhilstWAMA supports an enforceable Code, it is clear that this will provide individual LocalGovernments with a large degree of autonomy in the preparation and introduction of theCode and the nature and extent (if any) of enforcement. Individual Councils will regulatethis process themselves, and this may vary in practice.

Discussion Paper No. 9 (COG, 1995b: 20) raised the issue of whether ethical trainingwould be beneficial for public officials, including local government elected members. Inresponse, Mr Robert Cock, Crown Counsel, stated at a public hearing in Perth that:

I think there should because one just must accept that these people have come fromwalks of life with which we are simply not familiar into an environment where standardsare required by the community ... it would be so helpful to people to have clear inductioncourses and the sort of pamphlets that have been produced in the present processes seemnot to be out of the ballpark of what I would expect to be done. I find the answer isclearly ‘yes’, in my opinion, for inductions.

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This was supported by Professor John Milton-Smith at a Perth public hearing, where hesaid:

It is absolutely essential. When one looks at the problems that have cropped up and keptcropping up in local government, the sooner it happens the better. In fact, some of ourmost senior local government officials seem to have no sensitivity at all to the principleof conflict of interest, which I would have thought would be the starting point of anyinduction process there.

In response to the issue of whether training for local government elected members shouldbe compulsory, Mr Bates stated at the public seminar in Moora that:

No, I don’t accept that it should be compulsory because I don’t believe in compulsionbut anybody who puts themselves onto council has the opportunity within our council togo to these training schools or not.

Dr Michael Wood, formerly Chief Executive Officer of the Department of LocalGovernment and Public Service Commissioner, raised the logistical problems of requiringcompulsory training in a State as large as Western Australia. He commented at a publichearing in Perth that:

On the local government matters first, I think there are two alternative[s]. One is to offervoluntary pre-election workshops or seminars on some of the major dimensions of beinga councillor in local government: what is it like, what issues do you face and how wouldyou solve them? Prospective councillors could attend those if they wished. After anelection I think there might be as many as 300 or so new councillors in a year, dependingon, obviously, the rate of contest, and to cover 300 people around the state effectively ina compulsory way obviously takes some time and money.

I think it is important for the councillors to know that there are standards of behaviourexpected of them and to use either the professional associations, the Institute ofMunicipal Management or the WA Municipal Association in helping reinforce thatknowledge. I’m just not sure about compulsion predominantly because of the cost andbecause I’m not sure of how serious a problem it is that needs to be addressed.

WAMA expressed similar views on training for local government elected members in itssubmission:

WAMA with the IMM and the Department of Local Government is part of a triumvirateof organisations which encourage training of elected members and staff in areas ofcompliance and legislation responsibility. Although WAMA does not supportcompulsory training (mainly because of the practical considerations), it providesfundamental reinforcement of ethical standards through specific voluntary Councillortraining; promotion through professional publications and periodicals; and a generaladvisory service aimed to assist, within the scope of its mission, all elected membersthroughout the State.

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7.2.4 Analysis

We believe that the system of local government would benefit from a heightenedawareness of ethical issues and public scrutiny of the standard of behaviour of electedmembers. We note s.5.103 of the recently passed Local Government Act 1995, whichrequires every local government to prepare or adopt a code of conduct for councilmembers, committee members and employees and provides for regulations on the contentof, and matters in relation to, such codes. In a submission to this Commission, theDepartment of Local Government indicated that it did not plan to develop regulations untilsuch time as local government authorities had the opportunity to develop their own codes:

Should these be viewed as insufficient or inappropriate in a general sense, theDepartment could use the regulation making power to provide legislative direction.

The Department’s submission goes on to state that ‘if each local government is required todevelop its own code of conduct, there will be greater ownership of the resultant code anda stronger commitment to the principles contained therein’. While we endorse thissentiment we believe that regulations should be made pursuant to the Local GovernmentAct 1995 to prescribe a minimum standard of ethical conduct for local government electedmembers. These regulations should be in line with the standards of conduct and integrityto be included in the code of conduct which are developed for Members of Parliament inaccordance with Recommendation 7.1.5. In addition, we recommend that the Departmentof Local Government should be responsible for approving the codes of conduct developedby a local government to ensure that they comply with the regulations. We are not of theview that codes of conduct should be uniform across all councils, but that each codeshould be based on common ethical values.

The public is entitled to know the ethical standards by which their elected officialsconduct council business. We endorse the provisions of the Local Government Act 1995requiring prescribed codes of conduct to be available to the public. We recommend that,once the codes have been developed and approved, a public register of the codes adoptedby all local government authorities should be established and maintained within theDepartment of Local Government. We encourage local government authorities to publishthe details of the code in the local newspaper so as to increase the profile and publicawareness of the code. The maintenance of a register of the codes adopted by councils willalso ensure that there is a central access point for those interested in viewing andcomparing the codes of conduct adopted by local councils.

Both the LGA 1960 and the LGA 1995 include provisions for all elected members to takean oath or affirmation of allegiance to the office. Additionally, regulations should requirethat this oath or affirmation include a commitment that elected members abide by the codeof conduct adopted by their local government. This declaration should be repeatedpublicly after each election.

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While some local government authorities have conducted open committee meetings, theLGA 1995 contains a provision (s.5.23) which requires all council and committeemeetings to be open to the public (subject to certain provisions outlined in the Act). Thisattempt to open the decision making process of local governments is welcomed by theCommission. We also approve of s.5.94 of the LGA 1995, which allows members of thepublic to inspect certain local government information including the code of conduct, theregister of financial interests, and the confirmed minutes of council or committeemeetings, and s.5.97, which makes specific reference to the fact that nothing should affectthe operation of the Freedom of Information Act 1992.

One of the key issues raised during discussions with various individuals and organisationsdirectly involved in the operation of local government, was how codes of conducts shouldbe enforced. One option suggested was the establishment of an Ethical Advisory Bodywith both regulatory and advisory powers. After assessing the merits of this option weconclude that breaches of codes of conduct by elected members should be dealt with bythe relevant council. In relation to the use of an Ethics Body purely for advising on ethicalissues, we concur with conclusions of the Independent Commission Against Corruption,which stated in its Report on Investigation into Local Government, Public Duties andConflicting Interests that:

... my strong view [is] that any advice scheme will work only if the demand is there.That it is best ascertained by leaving it to those involved to make overtures andarrangements themselves ... If the Department wishes to play a part, and is madewelcome, that would seem satisfactory. On the other hand it may be that Councillors willwish to leave the matter to the Associations ...

An ethics body is a good idea. However unless it seems to be a good idea to thoseinvolved in local government, to such an extent they get it organised, then it will just bewindow dressing. (ICAC, 1992: 137)

Sanctions for breaches of codes by elected members should also be determined by thecouncil under existing legislation. Should a serious problem arise concerning the code orthe behaviour of a council, the LGA 1995 provides for the Executive Director of theDepartment of Local Government to call an inquiry into the conduct and activities ofelected members in relation to the code adopted by the council (LGA 1995, s.8.3).

We note the concerns expressed by Mr Peter Kyle in the Inquiry into the Shire ofBoddington in which he recommended that:

... newly elected councillors be required to undertake some course of study to give thema basic understanding of their role. Many do so already on a voluntary basis. Howeverthe experience of this inquiry leads me inevitably to the conclusion that these matterscannot be left entirely to the good sense of individuals involved. (Kyle, 1994 : 225)

Noting also strong opinions expressed at public meetings, we conclude that induction andtraining for local government elected members should be compulsory. We recognise the

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voluntary basis of local government membership and that it is largely an unpaid office.However, people are aware of those conditions when they nominate for office. Werecognise that there are logistical problems associated with training all newly electedmembers throughout Western Australia, but we believe that the importance of ethicaltraining in this area cannot be overstated. We suggest that the problems associated withtraining new council members can be overcome by using a variety of multi-media trainingtechniques such as videos, Westlink, the development of comprehensive inductionmanuals for new members and the Internet. In addition, while we have received excellentreports on the usefulness of the Councillor Induction Weekend program, we propose that agreater emphasis on ethics in local government should be incorporated into the program.


1. Regulations should be made pursuant to the Local Government Act1995 to prescribe a minimum standard of ethical conduct for localgovernment elected members in line with the standards of conductand integrity to be included in the codes of conduct which aredeveloped for Members of Parliament in accordance withRecommendation 7.1.5.

2. The Department of Local Government should maintain a publicregister of codes of conduct adopted by all local government bodies.Prior to registration, the Department should ensure that the codescomply with any regulations made pursuant to the Local GovernmentAct 1995.

3. Regulations made pursuant to the Local Government Act 1995should prescribe that elected members declare publicly that they willabide by their council’s code of conduct.

4. Local government authorities should be primarily responsible forenforcing codes of conduct in respect of elected members.

5. Induction and ethical training for local government elected membersshould be compulsory.

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CHAPTER 8 APPOINTED OFFICIALS

8.1 THE PUBLIC SECTOR — SERVICE CHARTER


Public officials are employed in a wide range of functional areas and have varied roles inproviding these services to the public. Many of them, such as nurses, teachers and policeofficers have direct, face-to-face contact with members of the public on a daily basis, andthe public understands their roles and functions. Others, such as those in policy ortechnical roles, are more remote from the public and their activities are probably lesseasily understood by them. It can be argued that the way in which all appointed officialsconduct themselves contributes to the overall public view of how well the public sector isperforming and how well the public’s needs are being met.

The variety of official roles in the public sector can lead to confusion and some discontentabout the accountability of appointed officials. There is debate about whether they areaccountable to the elected government which employs them and sets the policy direction,to the people to whom they deliver the services or to taxpayers.

The purpose of office, however, is intrinsically unclear. There are at least two purposes.They are to serve the government of the day so that it may effectively and efficientlygovern and to serve the public interest. Ambiguity therefore lies at the heart of theconception of public service. (Jackson, 1988: 242)

This debate may appear to be of little relevance to an official confronted by a member ofthe public who has no doubt about where accountability lies:

Most public sector workers ... work for the most part from a straightforward morality –drawn from their daily interaction with citizens and from their attempts to respond tocitizens’ needs, demands and expectations.

... citizens give you the strong message that you work for them. That your responsibilityis to them.

It does not help to tell the citizen who thinks that he or she employs you that they havemisunderstood the Australian Constitution and that the Minister is the person to whomyou, the public servant, are responsible. (Bunn, 1990: 96)

There have been many instances of officials who have faced sanctions for actions based ontheir belief that they were accountable to the public, when those actions were in conflictwith public sector or agency rules of conduct. We have addressed the issue of one suchgroup, whistleblowers, in Report No. 2, Part 1 (COG, 1995c).

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Chapter 8Appointed Officials

In talking about public administration in the United States, Caiden commented:

Most Americans have believed government to be different from other enterprises. Theyhave expected it to set an example of right for the community, to carry out a civilizingmission, to promote good and correct wrong. But good government was not magical. Itdepended on a diligent, demanding, inquisitive and caring public. It required goodpeople in its service, special people motivated to further the common good, who sawpublic administration as being administration for the public not of the public, whoconsidered public office as a trust to increase public welfare, and who took theirtrusteeship seriously (emphasis in original). (Caiden, 1981: 149)

If similar expectations are held by Western Australians, we need to consider whether thoseexpectations are being, or can be, met by the public sector. One factor that could militateagainst society receiving the sort of service it expects from the public sector relates to themorale and motivation of public officials:

The development of a professional career public service was for the purpose of creatingthe condition in which civil servants could discharge their duties within the bounds ofethics. The conditions of employment that marked that professional developmentincluded merit selection and promotion, tenure, payment of a fixed salary, andsuperannuation. These conditions of employment were designed with the aim ofinsulating public servants from their political masters such as to allow for theiruncorrupted service. The aim was to allow public servants to safeguard the publicinterest. (Jackson, 1990: 169)

The Western Australian public sector, in common with other Australian public sectors, hasundergone continuing change over the last decade. This has involved creating andabolishing agencies; restructuring existing agencies; corporatising and privatisingagencies; decentralising and devolving decision making; reducing staffing numbers;introducing programs of redundancy; hiring employees on contract instead of onpermanent conditions; changed relationships between senior appointed officials,particularly chief executive officers, and ministers; contracting out services previouslyperformed by the public sector; and introducing workplace or enterprise agreements.

It has been suggested that the pace of change and the likelihood of continuing change hasled to some confusion about the core values of the public sector. In addition, changes havecaused some public sector employees to lose their sense of purpose and consider that theirwork is of little value.

Mr John Enfield, former Commonwealth Public Service Commissioner, noted otherpotential dangers inherent in the new regimes.

The public service has been urged increasingly to adopt private sector managementstyles, including risk management. The aim is now value for the dollar, not, as in thepast, accounting for the last cent ...

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As a result of these developments, many of the traditional institutional ‘checks andbalances’ against fraud and other criminal or unethical behaviour have been removed. Ifadministrative power is the source of the ethical issue, then the processes of devolutionand decentralisation have the potential to increase significantly the numbers of publicservants who may be confronted with ethical dilemmas. (Enfield, 1988: 34)

Commenting on similar changes in the public sector in the United Kingdom, the NolanCommittee said:

... because of the pace of change, it is essential that more is done to inculcate high ethicalstandards through guidance, education, and training, particularly induction training, thanhas been thought necessary in the past. (Nolan, 1995: 18)


The enactment of the Public Sector Management Act 1994 (PSM Act) brought about anumber of changes in public sector management.

Prior to its introduction, public servants, who constitute about one fifth of the publicsector, were actually employees of the Public Service Commissioner, regardless of thedepartment in which they worked, and the Public Service Commissioner set rules ofbehaviour for employees.

Other public sector employees were employed according to the provisions of theiragencies’ enabling legislation. Generally, the chief executive officer of their agency wasthe employer. These agencies were not obliged to follow public service rules, althoughsome agencies chose to do so.

Under the terms of the new PSM Act, public servants have become employees of theirindividual chief executive officers, while other public sector employees remainedemployees of their chief executive officers or boards. Chief executive officers and chiefemployees are now employed by the Minister for Public Sector Management.

The PSM Act laid down for the whole public sector, with the exception of thoseorganisations listed in Schedule 1 to the Act (Appendix 2B), general principles of publicadministration and management (s.7), general principles of human resource management(s.8) and general principles of official conduct (s.9). It also required the Commissioner forPublic Sector Standards to establish codes of ethics setting out minimum standards ofconduct and integrity to be complied with by public sector bodies and employees(s.21(1)(b)).

In effect then, the PSM Act provided for common minimum standards of conduct to beapplied across the sector.

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In 1994, the Premier, the Hon. Richard Court MLA, announced that all public sectoragencies would be required to introduce Customer Service Charters. The charters wouldrequire each agency to identify its customers clearly and to deliver services to them in acost-effective and courteous manner. The Government identified six guiding principles:

• standards – agencies to set, monitor and publish expected standards of servicedelivery and publish details of actual performance against these standards;

• information and openness – agencies to provide in plain language details about howtheir services are run and how much they cost;

• choice and consultation – agencies to consult with service users and, wherepracticable, provide choice;

• courtesy and helpfulness – public officials to provide helpful and courteous serviceequally to all those with an entitlement to that service;

• putting things right – agencies to develop and publicise complaints procedures,preferable with review provisions, and apologise and provide remedy if problemsarise; and

• value for money – services to be provided efficiently and economically.


While a number of the submissions received commented on the need for each organisationto develop an ethical culture, and many addressed the values that should underpin suchcultures, there was less focus on the need for there to be an overall vision of the purpose ofgovernment and the future.

The issue of declining public sector morale and its likely consequences for the good healthof our system did attract some attention. At a public hearing in Perth, Mr Bruce Collier,the Chairman of the Salaries and Allowances Tribunal, expressed a personal view aboutthe effect that changes in the structure and operation of the public sector in recent yearswere having upon public sector employees and the impact that this could have onstandards:

I believe that the morale of the public service at the moment is at an all-time low. I havebeen around public service organisations in two states for 50 years and I don’t know thatI have seen or heard such melancholy ... as I hear around the service at the moment ...

What worries me is that the changes that are now taking place may well have adeleterious effect in the long term on that reliability and dependability. I don’t know thatI can get very specific on this, but I reckon that you can’t expect the standards that you

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are out to achieve to be obtained and maintained or even expected if officers areapprehensive about tenure, promotional prospects and conditions of service.

Mr Collier went on to submit:

... that it’s vital to liberal democracy for the administrative arm of government to bestaffed by persons of the highest integrity and standards of conduct who make the publicservice their career ...

Mr Des Pearson, the Auditor General, acknowledged that the rapid pace of change createdproblems in maintaining standards and that positive management techniques were requiredto meet this challenge. At a Perth public hearing he said:

I share concern at the apparent trend or the perceptions that are emerging but I think theproblem is broader than contracts ... I see the rate and pace of change, the use ofalternative mechanisms and methodologies as legitimate management tools but theyrequire us, as public sector managers, to bring to bear more relevant or appropriatemeans of maintaining the same ethical standards.

In a written submission Dr Des Kelly, the Chief Executive Officer of the Department ofResources Development, stated that:

... developments have changed the traditional structure of the Public Service.Consequently, there is a need, more than ever, for the creation of guidelines to removeuncertainties, to assist Public Service Officers, at all levels to perform their duties,obligations and responsibilities.

8.1.4 Analysis

While we recognise the concerns over the pace of change and its possible effects on therole of the public sector, we see such changes as inevitable due to global and nationalpressures. Changes are unsettling for organisations with a tradition of stability. Thechallenge is to bring about reform in a way that ensures the public sector responds topublic needs in an efficient and effective manner, but importantly, in a way that maintainsthe core ethical values of the traditional public sector.

We note the actions of the Government in developing the Customer Service Charter. Theprinciples that underpin the Charter are consistent with the directions of reform that wehave urged in this and earlier Reports. They recognise that government and the publicsector exist to serve the community and that they must do so in a manner which isacceptable to the community.

We note that in writing to chief executive officers about the implementation of this policy,the Premier stated:

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The public sector has a special role to play in Western Australia’s growth as we lead tothe year 2000 and beyond. Public servants contribute by delivering programmes whichprovide services, goods and benefits to citizens ...

It is important for the morale of the public service and for its efficiency that the work ofpublic servants meets customers’ expectations and needs. (WA Premier, 1994: 1)

We consider that there is a need for a charter which sets out the general principles to befollowed in the delivery of public sector services.

8.1.5 Recommendation

1. The principles underlying the Customer Service Charter issued bythe Premier in 1994, should extend to the whole public sector.

8.2 CODES


8.2.1.1 Standard of Behaviour Expected and Content of Codes

Public concern about declining standards in public life relates to appointed officials aswell as elected officials. The issues raised in Chapter 7 about elected officials, are alsorelevant to public officials. They relate to the standards of conduct to which publicofficials should be required to conform; whether chief executive officers and other seniorofficials should be held to different standards than their juniors; the contents of codes; howthey should be developed; whether adherence to a code should be voluntary orcompulsory; whether codes should be enforceable; and if so, the sanctions that shouldapply.

There is contention about which values should underpin the conduct of appointedofficials – should they be derived from community values, from the culture and values ofthe particular organisation or from the personal values of the individual officials?

Chapman considers that these are all elements which impact upon public sector ethics:

The personal values of public servants are the most important element in public serviceethics. These values have a variety of sources which include the family background andearly socialisation of officials; their education; their choice of career and selection atrecruitment stage; training and socialisation after recruitment; the continuing changingvalues in society; influence from the political environment; the embodiment of some ofthe values and other factors in constitutions, codes and rules; and the requirements ofnational (and sometimes international) law. (Chapman, 1993a: 168)

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On the other hand, Finn clearly places public interest above the personal values of theofficial:

Important as an ethical issue may be to a particular official given his or her own valuesystem, much more important in many cases is the maintenance of public confidence inthe disinterested and lawful conduct of government itself. It is here that the law onpublic officials holds sway. It is here, for the purposes of our concern with ethics, thatthe public interest trumps individual conscience. (Finn, 1993b:140)

Bowman calls for organizational values to be clearly enunciated if employees are expectedto comply with them:

While most organizations have certain moral and ethical expectations, they rely largelyon individual honor to meet those obligations. However, to expect a person’s morality toaccord with collective standards, organizations must clarify what those expectations are.(Bowman, 1981: 60)

Inquiries examining appropriate standards of conduct for public officials tend to reachsimilar views about the values that should underpin ethical regimes. Among the valuessuggested are lawfulness, honesty, impartiality, disinterestedness, fairness,conscientiousness, prudence in the management of resources and the scrupulous use ofposition and information gained through position (WA Royal Commission, 1992: II4.6.3-4.6.4). The Public Sector Ethics Act 1994 of Queensland specifies: respect for thelaw and the system of government, respect for persons, integrity, diligence and economyand efficiency (s.4(1)). It could be argued that the similarities in the values identifiedindicates that widely held community values are the major determinant in identifyingethical values for public officials.

These ethical values have been incorporated into a range of codes of conduct and codes ofethics in Australian public sectors for about 30 years. In 1965 the then Royal AustralianInstitute of Public Administration developed a draft code of ethics for public servants.This code observed that ‘[m]embership of the public services arises from a voluntarychoice of employment, not from compulsion ... [and ] involves ... characteristic privilegesand obligations, not all of which are embodied in the law’. The draft also drew attention tothe fact that by becoming a public servant, an individual takes on ‘new and specialobligations ... [but] does not rid himself of old and general ones’. The draft code identified50 principles which it divided into six categories – Basic Principles, Personal Standards,Responsibilities to the State, Public and Political Activity, Relations with FellowEmployees and Professional Affiliations (RAIPA, 1965: 195-199).

A decade later, debate was continuing about whether it was appropriate to attempt tocodify ethical principles for appointed public officials. In 1976, the Royal Commission ofInquiry into Australian Government Administration (Coombs Commission) consideredwhether there should be an ethos or prevailing moral attitude by public officials towardstheir work in the Commonwealth Public Service. Hughes noted that:

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... the Coombs Commission doubted that it was ‘legitimate or practicable to seek tocreate or impose an ethos which, of its nature, expressed the existence of a consensus’ ...

Hughes explained that the Coombs Commission recommended:

... against any official attempt to codify standards of behaviour beyond those appropriatein general conditions of employment or a special contract. (Hughes, 1990: 55)

The Coombs Commission thought that it would be preferable for the focus to be ontraining, and on establishing an environment where questions relating to proper conductcould be discussed. Weight would be given to the judgement of peers, counselling, andestablishing procedures for obtaining advice from appropriate and independent seniorstatutory office holders in central agencies.

In 1979 the Commonwealth Public Service Board issued its Guidelines on OfficialConduct, which were updated in 1987 and 1995. Since the 1980s codes have beendeveloped in most states and in many cases have been incrementally changed in latereditions. An examination of some of these codes demonstrates the evolution from top-down imposed codes that set rules on many issues, to bottom-up codes that are developedwith staff involvement and cognisance being taken of particular agency environments.

In 1988, the Western Australian Public Service Commission (PSC) issued Rights,Responsibilities and Obligations: A Code of Conduct for Public Servants (the 1988 code)and updated it with Circular to Chief Executive Officers No. 9 of 1991: Code of Conduct– Conflict of Interest Provisions. These codes applied only to the Public Service, whichcomprised about one-fifth of the public sector. We understand that the 1988 code wasdeveloped with little consultation with the majority of public servants other than some atsenior levels. The 1988 code was based on three guiding principles – public confidence,responsiveness to the government of the day and officers’ rights. Under these headingssubjects such as personal behaviour, duties of care and confidentiality, discretionarybehaviour, efficiency, economy, political neutrality, public and private comment andconflicts of interest were addressed. The 1988 code and the conflict of interest provisionswere supported by a range of administrative instructions, regulations and circularsestablishing rules of conduct. Although the 1988 code no longer has any formal status, weconducted a survey of Western Australian public sector agencies to determine what, if any,codes were in force. We found that the 1988 code was the code most commonly used.

In the lead up to the introduction of the Public Sector Management Act 1994, the PSCissued for agency consideration a draft Code of Ethics for the Western Australian PublicSector and Guidelines (the 1994 draft code). This document acknowledged that:

Ethical behaviour in the context of management of a public sector body can never besimply reduced to a check list of ‘dos and don’ts’. Rather it requires people to recognisethe ethical dimension in their work, to incorporate into their work certain values whichshould guide their actions and decisions, and to be aware that public employment brings

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with it certain limits on the extent to which employees can participate in certainactivities. (PSC, 1994: 1)

The 1994 draft code identified seven basic principles against which employees would beheld accountable, these being respect for the law, honesty, diligence, courtesy, fairness,public confidence and the public interest.

8.2.1.2 Types of Code

Codes tend to fall into a number of major categories:

• those that attempt to provide guidance on every possible issue that the official islikely to encounter;

• those that set out a limited number of general principles to assist officials in reachingtheir own decisions when confronted with an ethical dilemma;

• those that set out optimal ethical standards in an endeavour to encourage officials tochoose the highest achievable standards; and

• those that prescribe minimum standards which must not be transgressed.

Criticisms can be made of each category. The code that attempts to cover all possiblecontingencies will be likely to be bulky, inflexible and possibly difficult to use.Furthermore, as it is never possible to foresee all dilemmas that may arise, officials whorely upon such a code and are not aware of the ethical principles that underlie it, may notbe able to resolve such dilemmas.

On the other hand, a code that enunciates only general principles may be difficult to applyto practical situations unless it is supported by an organisational climate that encouragesofficials to discuss ethical problems and provides suitable ethical training.

Aspirational codes that seek to encourage the highest possible standards of behaviour maybe too vague to apply in practical situations where trade offs must be made because ofresource restraints.

Codes that set minimum standards may result in a public sector where the lowest possiblestandard of conduct is favoured and excellence is neither sought nor rewarded.

8.2.1.3 Development of Codes

One major area of contention relates to the manner in which a code is developed orrevised. It is argued that the method of developing a code is likely to have a bearing uponhow much it is subsequently used.

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The method whereby codes are developed by management with little consultation fromemployees, is often referred to as the top-down model. In this model the code tends to be aset of enforceable rules, imposed by management. Many of those who are to be bound byits conditions have little or no opportunity to contribute to its contents. Examples oftop-down models are the 1988 code and the Queensland Code of Conduct for Officers inthe Queensland Public Service also issued in 1988. Experience with these codes is thatthey are rarely widely known or used by those subject to them. Sampford (1994) observesthat:

If these ‘top-down’ codes are resented, they will be ignored when possible, andotherwise treated like an unwelcome legal rule. That is, they will be avoided if possibleand interpreted as narrowly if necessary ... Rules developed by management, or evenconsultant philosophers brought in to draw up the code, will often fail to address [thereal ethical problems encountered by administrators] or will do so in ways, and fromperspectives, to which the bulk of bureaucrats cannot relate. (1994: 19)

Another model, referred to as the bottom-up model is one in which the officials bound byan ethical regime develop it themselves, without the imposition of an external valuesystem.

It becomes possible for public servants to take personal responsibility for their actionsonly when shared values and shared expectations of ethical responsibility have beenarticulated. This empowers public servants to act with the confidence that they are notmaking choices on narrowly defined personal preferences. (Denhardt, 1991: 277)

A third model is said to combine the best aspects of the other two models for developingcodes. In this model, management provides the climate in which officials can discussethical dilemmas, challenge preconceptions and arrive at solutions appropriate for theculture of the particular organisation and its clients, but in keeping with wider publicsector or community values.

Codes developed using the third model often incorporate high level principles or valueswhich underpin more detailed guidelines directed towards addressing ethical dilemmas forthe agency in question.

... there is growing recognition that a two-part or three-part code may be the mostefficacious in overcoming the criticisms of codes ... The first part would contain a briefstatement of general principles ...The second part would supplement these principles byan explanation or illustrations of what the principles are intended to mean in practice ... athird part could be added which would tailor the general principles and their commentaryto the particular needs of individual departments. (Kernaghan, 1993: 22, 23)

Following extensive research in Queensland, a model has been developed which followsthis pattern. The Electoral and Administrative Review Commission (EARC) conducted amajor review that examined the existing code in that State. Its 1992 Report on the Reviewof Codes of Conduct for Public Officials recommended legislation that would be based on

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five broad ethical principles underpinning standards of acceptable official conduct. Itproposed that this ‘level 1 code’ would be supported by a general code of conduct ‘level 2code’ and ‘level 3 codes’ which would be agency specific. The Parliamentary Committeefor Electoral and Administrative Review (PCEAR) considered the EARC Report andissued its own Report on Codes of Conduct for Public Officials. While generallysupportive of the EARC recommendations, including the need for a legislative basis forcodes, PCEAR preferred a two level model consisting of a code of ethics and agency-specific codes of conduct. The Public Sector Ethics Act 1994 (Qld) includes the fiveprinciples identified by EARC and requires chief executive officers of public sectoragencies to ensure that a code of conduct is prepared for the entity, in consultation with thepublic officials to whom the code is to apply.

The model introduced by the PSM Act is also based on such a system. It provides for thedevelopment of a sector-wide code of ethics, incorporating minimum standards of conductand integrity, to be complemented by agency-specific codes of conduct. It should be notedthat the PSM Act does not include all public sector officials and agencies in its coveragewith regard to codes. Excluded are entities listed in Schedule 1 of the PSM Act(Appendix 2b) such as:

• electorate officers;

• officers and staff of Parliament and Government House;

• the universities;

• the Police Force;

• local government authorities; and

• certain corporatised or privatised entities operating under their own legislation.

Of these bodies, it is our understanding that only the Police and Curtin University ofTechnology and some local government authorities have developed their ownorganization-specific codes of ethics.

To ensure uniform standards of conduct throughout, it could be argued that there is a needfor these organizations to be required to adopt codes of conduct in accordance with themodel set out in the PSM Act.

8.2.1.4 Application of Codes to Contractors

With the increasing move by government to contracting services to the private sector,there is a concern to ensure that contractors behave ethically. Contractors are only boundby the conditions of their contract, which usually do not refer to codes of conduct.

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Policy 1.6 of the Supply Policy Manual refers to purchasing ethics and states that ‘theseethics should be considered in conjunction with the Code of Conduct for Public Servantsproduced by the Western Australian Public Service Commission, June 1988’ (WA StateSupply Commission, 1992: 1.6). This policy only refers to the ethical conduct of publicofficials when purchasing and not the ethical conduct of contractors in carrying out theircontract.

8.2.1.5 Post-Public Sector Employment

The policy direction of privatisation, contracting out and the diminution of the careerpublic service, raises ethical issues surrounding the post-separation employment(employment after resignation, retirement or expiry of office) of public officials. Finn hasdescribed the potential ethical problems as falling into three categories:

• conflict of interest, which may arise when a public official takes steps while in officetowards future employment, eg negotiations with a prospective employer during thecourse of official duties involving the same party;

• later misuse of confidential information obtained in office; and

• ‘the untoward exploitation of the connection and influence the ex-official retainswith serving officials’ (Finn, 1993a: 118).

Finn also notes that these ethical considerations need to be balanced with the competingvalue that individuals should be as free as possible to realise their own potential, in themanner of their choosing (1993a: 117). In addition, other inquiries have seen merit infostering mobility between the public and private sectors, to maximise the available poolof talent and skills and promote better relations between business and government (BowenCommittee, 1979: 115; Nolan Committee, 1995: 52).

Britain, the United States and the Commonwealth of Australia provide examples ofattempts to regulate the area of post-separation employment of public officials. Regulatorymeasures include the use of guidelines for public servants who are offered a businessappointment (Cwlth of Australia Public Service Commission, 1995: 78-81); andrestrictions on post-separation employment of senior civil servants administered by a high-level advisory committee on business appointments in the United Kingdom (NolanCommittee, 1995).

This is in contrast to the position in Western Australia, where, in general, many legislativeprovisions relating to public sector employees do not cover the situation of ex-employeesand there is little, other than common law remedies, that may be relied upon.

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Section 21 of the PSM Act requires the Commissioner for Public Sector Standards:

...

(b) to establish codes of ethics setting out minimum standards of conduct andintegrity to be complied with by public sector bodies and employees, and monitorcompliance with those codes;

(c) to assist public sector bodies to develop, amend or repeal codes of conduct –

(i) setting out minimum standards of conduct and integrity to be complied withby themselves and their employees; and

(ii) consistent with codes of ethics established under paragraph (b),

and monitor compliance with those codes ...

A draft code of ethics is being developed by the Public Sector Standards office.

The Local Government Act 1995 requires local government authorities to adopt a code ofconduct to apply to both employees and elected members. In addition, the regulationsprovided for under this Act can prescribe the contents of the code.

The enabling legislation for certain corporations, which are excluded from the provisionsof the PSM Act (Appendix 2A), provides that they must, after consultation with theCommissioner for Public Sector Standards, prepare and issue a code of conduct setting outminimum standards of conduct and integrity to be observed by members of staff.Examples of such legislation are the Gas Corporation Act 1994 (s.24) and the ElectricityCorporation Act 1994 (s.24).


A number of submissions addressed the issue of whether standards had fallen in recentyears. Speaking at a public seminar in Manjimup, Mr Max Cutting took the view that theyhad:

I think we have entered an era where human standards are slipping. The old principlesthat we grew up with are just literally going out the back door and I don’t know how tosolve it.

Similar views were expressed by the Crown Counsel Mr Robert Cock, who said at a publichearing in Perth:

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I have been in the public service for about 16 years. My perception is that there has beena reduction in the standard, the ethical behaviour at least, of public servants generallyover those 16 years. I primarily attribute that to just a loss in values generally, a loss insenior persons administering or engendering in their juniors the sort of values that nodoubt were familiar to them.

On the other hand, Mr Bruce Collier, Chairman of the Salaries and Allowances Tribunal,expressing a personal opinion considered there was a need to be cautious on this issue.Speaking at a public hearing in Perth he said:

I think we have got to be very careful that we don’t get carried away with the idea thateverything that happened in yesteryear was better, standards were higher, politiciansbehaved better, children were seen and not heard, houses were much bigger when youplayed in them as children. I think when you go back, as you get a bit on in years, yourealise that the houses weren’t so big; you were just small.

When asked at a Perth public hearing what standard of behaviour the public is entitled toexpect from public officials, Dr Elizabeth Constable MLA, replied :

Sometimes when I listen to talkback radio I think they want too much from us but I thinkthey are certainly entitled to honesty, to openness, to measures of accountability thatsome of us would like to take for granted but we can’t any more.

In her written submission Dr Constable outlined more precisely the moral principles thatshe thought were necessary:

• to act honestly

• the avoid conflicts between personal and public interests

• to act in the public interest

• to act with integrity

• to act impartially

• to act openly

• to be accountable, and to ensure that proper measures are adopted ... toaccommodate accountability

• to act diligently

• to act efficiently

• to act within the law

• to respect persons

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• to exercise public influence in a proper manner.

In her written submission, Ms Helen Le Cordier listed the issues that she consideredshould be core ethical principles which should apply to all public officials as ‘conflict ofinterest, behaviour, use of official facilities, gifts, loyalty, diligence, economy, respectothers, integrity’.

At a public hearing in Perth, Mr Bruce Collier suggested:

... that the sort of matters that you could put in a code include conscientious andimpartial service to the government of the day, equity and fairness in dealing with thepublic and fellow officers, confidentiality, handling conflict between private interestsand official duty, the use of official information, acceptance of benefits, standard dressand the like, those sorts of things, I think, could well and truly be put into a code ofconduct.

There was considerable support in the submissions for the codification of standards ofconduct for appointed officials. Speaking at a public seminar in Bunbury, Mr ArthurCollins supported the idea of a code for all public officials:

I can’t see why parliamentarians, certainly all elected officials, public servants, anyofficials shouldn’t be prepared to sign a document setting out some of the things I shouldthink that are quantifiable and should be just accepted in any society, Christian or anyother religion: truth, honesty, integrity, sobriety – they are the quantifiable ones. Youeither tell a lie or you don’t. You’re either drunk or sober. You’re either honest ordishonest.

There was some debate about whether there should be one sector wide code oragency-specific codes. Dr Elizabeth Constable MLA, was of the view that:

Surely the code of conduct within an organisation can’t be like an island to itself. It hasto relate to, especially in the public service, the public as well, to the general need of thecommunity. So why wouldn’t you have some view or input from the community, a set ofvery general notions like I have put in here and have organisation specific andorganisation driven additions to that, if you like, or matters that complement that?

On this issue Mr Graeme Watts stated at the public seminar in Derby that:

I feel that when it comes to public officials there is no reason why you couldn’t have oneset of rules that should be applicable right across the board. Our expectation is that apublic official, whether he is a policeman or probably even a shire clerk of anything,should behave in the same way.

On the issue of whether codes should be top-down or bottom-up, there were a number ofviews. Dr Michael Wood, former Public Service Commissioner, agreed that failings of the1988 code may have resulted from its top-down format, but cautioned against a totallybottom-up approach:

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... I suspect [it was] not well-known or read or understood through the service as a result[of being top-down] ... I think that participation is essential but things need to beginsomewhere. There is an efficient use of resources if a draft is prepared at the centre andthen tested along with other relevant material in organisations.

Some organisations might need to develop supplements that are relevant to their ownparticular cases. For example, organisations that have a high technical component mightfind that their information comes from a range of sources, so strict confidentialityrequirements, for example, in research work in the Department of Agriculture might bequite inappropriate but they might be appropriate in the Premier’s office, so there needsto be some adaptation.

On the issue of bottom-up codes, Professor John Milton-Smith was clear:

I think that’s rubbish and the opposite of good leadership. I think we are talking about aprocess which is top down and bottom up simultaneously and, again, the art of managingthat process and getting the balance right – and of course it’s never quite right – but thatart is again part of the art of leadership and we all know, at least in retrospect, who didthat well and who didn’t. I think that when we are looking at codes we are looking at avery important dialogue which management opens up with the people of the organisationand there needs to be active participation at all levels in the development of the code ofconduct just as there needs to be opportunity for participation in the development ofstrategic planning.

On the issue of whether codes should be pitched at a high level or attempt to cover all thesituations that could confront an official, Mr Des Pearson, the Auditor General,commented at a Perth public hearing on the experience in his Office:

... we consciously held it at a high level because that to me is a very practical difficultythat the public service generally like to relate to explicit rules and regulations andexperience has shown me that no matter how well you research it you will never coverall reasonable avenues that will arise. So we have consciously kept it at the higher level,aiming to instil a culture and an attitude and an approach and to encourage a continualquestioning or querying of ‘Is this practice appropriate?’ We did it as a conscious part ofour strategic planning process where we went through a process to develop a vision, amission, what we call an ethos.

Mr Pearson added that this was not an easy process and took the best part of two years.

The issue of the ethical considerations that should apply to contractors performing tasks onbehalf of government was addressed during our hearings. At a Perth public hearing, theCommissioner for Public Sector Standards, Mr Digby Blight, agreed that a contractorshould be bound by the code of the agency from which it contracted work:

... yes, because normally the recipient of the services don’t necessarily know [that theservice is being provided by a contractor] ... they assume that the same standards will beused and I believe that they should. If they’re an agent of an organisation, they shoulduse the same standards of conduct and codes of ethics.

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Former Public Service Commissioner, Dr Michael Wood, was asked at a Perth publichearing whether a two year moratorium on post-public sector employment involving aconflict of interest would be appropriate. Dr Wood responded:

Two parts to it I think ... One of the issues [is that of] of time. Two years in the UKmight be fine but if people were to do that here in a smaller community it would bedifficult ...

On the point of principle ... Some restraints on working immediately within affiliatedorganisations as soon as you leave the public service are desirable ... a year or asignificant period of months one might assume will reduce the former public servant’sdetailed knowledge of life within the organisation and reduce the prospect of beingemployed because of that special richness they are meant to have.

The Hon. Keith Wilson, a minister in the previous State Government, responded similarlyat a Perth public hearing:

I can see merit in that [post-employment conditions] because there is a certain culture ofmanagerialism I think which has developed and I think there is often pressure now onCEOs to position themselves with respect to other than government organisations,organisations in the business sector and the private sector, in a way which will see themas favourably regarded and having views that would be favourably regarded, to positionthemselves for other employment prospects.

I am not saying that in a wholly critical way. I think it’s humanly perfectlyunderstandable that that should be so, but it does therefore raise reasonable suspicionsprobably about some decisions that would be taken.

Few submissions addressed the issue of whether those organisations and officials, otherthan those in local government authorities, excluded from the requirements of the PSMAct, should be required to comply with the same ethical standards as other public officials.

8.2.4 Analysis

It is a serious matter if the public lacks confidence in the ethical behaviour of publicofficials. From our consultations there would appear to be a view that all public officials,whether appointed or elected, and regardless of rank, are required to conform with ethicalstandards. We accept the arguments that have been put to us in favour of the codificationof standards of conduct. We consider that it is important that public officials have accessto clear and relevant information about the standards with which they are expected tocomply.

We are of the view that a core code of ethics should be developed with whole-of-sectorapplicability. Those agencies excluded from the PSM Act and listed in Schedule 1 of theAct (Appendix 2B) should be required to meet the same standards as the rest of the publicsector. The Commissioner for Public Sector Standards has begun to develop a code ofethics in line with his responsibilities under the PSM Act. Coverage of that code of ethics

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should be extended to components of the public sector which are not required underexisting legislation to develop a code.

In the course of our inquiries into Specified Matter 1 (Secrecy Laws of the State), weobserved the difficulties confronting public officials who are bound by confidentialityrules which impede the objective of making government more open and accountable. Onthe other hand, public sector agencies are the holders of some information, theconfidentiality of which must be protected. We concluded that some of the conflicts thatarise could be resolved, and the public interest in open government recognised, if codes ofethics developed in the Western Australian public sector were to include principles of dataprotection, and chief executive officers and chief employees were to be required to classifyinformation that should be protected in their agencies.

It is clear from our research and from the submissions that we have received, that there islittle support for that model of development of codes known as the top-down model. Weaccept the view that such codes generally have little chance of being accepted by theofficials required to comply with them. We believe the identification and articulation ofthe values to form part of the code of ethics should instead take place through a process ofconsultation with those officials. As a major reason for the development of codes is toimprove the confidence of the public in the workings of the public sector, we consider itappropriate that members of the public be given an opportunity to comment upon thesevalues.

We are aware that the Commissioner for Public Sector Standards is consulting extensivelywith public sector agencies to determine the principles that should apply and we supportthis process.

We are persuaded by the views of those who consider that each agency needs its ownspecific code to assist its employees to deal appropriately with ethical problems they mayencounter. In Report No. 2, Part 1, we recommended amending the PSM Act to providefor the functions of chief executive officers and chief employees to include establishingcodes of conduct (COG, 1995c: 16). We consider that it is appropriate that those chiefexecutive officers and chief employees whose agencies are not subject to the PSM Act,should be under a similar requirement and this could, most appropriately, be managedthrough direction by the Premier.

In the case of electorate officers not covered by the provisions of the PSM Act we considerthat responsibility for the development of a code of conduct should rest with the ChiefExecutive of the Department of State Administration.

Ministerial officers are subject to the provisions of the PSM Act. Considering the nature oftheir work and the fact that some work for ministers with responsibility for more than onedepartment, it is inappropriate that they should be required to comply with the code ofconduct of one of the departments. The Chief Executive of the Office of State

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Administration should be responsible for developing a code of conduct specificallyaddressing the role and functions of ministerial officers.

The comments we have made about the need for public input into codes applies equally tocodes at individual agency level as at sector level. Each code of conduct should bedeveloped with input from all officials who will be required to comply with its provisionsand should address issues of particular relevance to the agency. Clients of each agencyshould be given the opportunity to comment upon the relevant code.

Although we are aware of the potential for conflicts of interest arising frompost-separation employment, we are conscious of the small size of the Western Australianlabour market in comparison with jurisdictions where restrictions are imposed. We do notwant restrictions imposed on the mobility of officers between the private and publicsectors as there are benefits for both sectors through staff mobility.

The move towards contracting out may heighten the potential for conflicts of interest, butat this stage there is no evidence of this that would justify the imposition of regulation.The situation should, instead, be monitored. We note that the Public Sector StandardsCommissioner has the power under the PSM Act to monitor, amend and repeal publicsector standards and codes of ethics. We suggest that the Public Sector StandardsCommissioner continue to evaluate the need for codes of conduct to be developed forpost-separation employment.

We note that when private contractors are awarded contracts to perform work on behalf ofgovernment, members of the public frequently think that the work is in fact being carriedout by public officials. As the code of ethics that we are recommending is based oncommunity expectations, we consider it appropriate that contractors be required toconform with the same ethical standards as public officials when contracted togovernment.


1. For the purpose of the standards of conduct expected of publicofficials, the agencies that constitute the Western Australian publicsector should include:

(a) ministers of the Crown and other parliamentary office holders;

(b) Members of Parliament;

(c) officers and employees of public sector bodies as defined in thePublic Sector Management Act 1994 ;

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(d) members and employees of any municipality or regional councilestablished under the Local Government Act 1960 ;

(e) the Police Force within the meaning of the Police Act 1892 ;

(f) employees of government trading enterprises;

(g) officers of statutory officials responsible to Parliament, such asthe Auditor General, the Parliamentary Commissioner forAdministrative Investigations (the Ombudsman), theCommissioner for Public Sector Standards and the InformationCommissioner;

(h) the Governor’s establishment referred to in the Governor’sEstablishment Act 1992 ;

(i) members of the staff of Parliament and electorate officers asreferred to in the Parliamentary and Electorate Staff(Employment) Act 1992 ; and

(j) employees of universities.

2. The chief executive officer or chief employee of any agency shouldbe responsible for developing an agency-specific code of conduct,which should:

(a) be in accordance with the code of ethics to be developed by theCommissioner for Public Sector Standards pursuant to theprovisions of Section 21 of the Public Sector Management Act1994;

(b) address the particular circumstances of the agency; and

(c) be developed with input from all employees.

3. The code of ethics and agency-specific codes of conduct should beobserved by all appointed public officials in the public sector as setout in 1. above.

4. Responsibility for the development of codes of conduct for electorateofficers and ministerial officers should rest with the Chief Executiveof the Office of State Administration.

5. Public sector contracts for goods and services should include arequirement for contractors to abide by public sector codes ofconduct.

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8.3 BREACHES OF CODE


8.3.1.1 Sanctions

The appropriateness of disciplinary sanctions for a breach of a code of conduct, is an issuewhich is frequently raised. One commentator has stated:

Caught up in the momentum of ever more ethics restrictions, policy makers are indanger of losing touch with this belief in the responsible use of power by persons ofhonor and good will. To be sure, the law must be capable of dealing with violations ofthe public trust. However, a system of ethics regulation that is only and obsessivelyconcerned with thwarting wrongdoers will fail utterly ... Public employees should befunctioning within a value structure that leads them to honorable behaviour out of asense of professional pride and a conviction of the rightness of such behaviour, ratherthan out of a fear of sanctions. (Farina, 1993: 294)

To some degree, whether sanctions are an appropriate response depends upon the purposefor which a code is developed. If the purpose is to encourage employees to attain thehighest possible standards of conduct and to bring about an ethical change in the culture ofan organisation, then it could be counter productive to use sanctions as a means ofenforcing the code. On the other hand, if a code is designed to identify minimum standardsof behaviour which must not be transgressed, then sanctions could be an effective methodof enforcement.

It can also be argued that a code of conduct which is not supported by some disciplinarysystem lacks credibility. Even if rarely resorted to, disciplinary sanctions may have somebeneficial deterrent effects. In an issues paper published by the Electoral andAdministrative Review Commission (EARC) on Codes of Conduct for Public Officials itwas pointed out that:

... it is probably in the area of penalties that there lies the greatest potential for thedelivery of strong messages – both positive and negative – about the credibility of anethics regime. (EARC, 1991: 35)

Even if it is decided that sanctions are an appropriate response to breaches of codes, thereare difficulties associated with their enforcement. Often, codes are drafted broadly and thismakes it difficult to clarify what is the conduct which is required:

Breaches of a code of conduct may be not prosecuted because of the difficulty ofsustaining a conviction in an area where perception of an ethical matter falls toindividual judgment and is open to argument. The precise requirements of codes ofconduct are frequently difficult to discern. (EARC, 1991: 35)

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The situation is further complicated in the Western Australian public sector by the range oflegislation to which officials may be subject.

8.3.1.2 Public Sector Management Act 1994

While the Public Sector Management Act 1994 (PSM Act) requires all public sectorentities and employees (with the exception of those listed in Schedule 1 of the Act(Appendix 2B)) to have codes of conduct and to comply with prescribed codes of ethicsand standards, not all public sector employees are subject to the disciplinary provisions ofthe Act. A reason for the limited coverage of the disciplinary provisions of the PSM Act isthat many public sector employees are subject to awards and disciplinary regimesprescribed by other legislation.

Part 5 of the PSM Act deals with disciplinary matters. The range of public officials subjectto disciplinary provisions is much more restricted than those provisions dealing withstandards and codes. Section 76(1) of the PSM Act defines the disciplinary provisions asapplying to:

...

(a) all public service officers and ministerial officers; and

(b) such other employees, or members of such other class of employees, as are or isprescribed for the purposes of this section.

It is important to note that public service officers for the purposes of this section alsoincludes all chief executive officers and members of the Senior Executive Service. Theonly class of employees that has been prescribed for the purposes of s.76(1)(b) of the Actare:

Persons employed under the Education Act 1928 in the Western Australian Departmentof Training ... (Government Gazette, WA: 4800)

Section 80(b)(ii) of the PSM Act defines the contravention of any public sector standard orcode of ethics as a breach of discipline. There are a number of possible penaltiesprescribed under the PSM Act for such breaches. Depending upon the seriousness of theaction these range from a reprimand, transfer to another public sector body, fine, reductionin classification or dismissal (PSM Act, ss 83 and 86).

The onus is on the employing authority to deal with alleged breaches in the first instance.In the case of most employees and members of the Senior Executive Service, theemploying authority is the chief executive officer. In the case of chief executive officers orministerial officers, the employing authority is the minister responsible for theadministration of the PSM Act, the Minister for Public Sector Management.

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The PSM Act sets out in some detail the processes that must be followed when there hasbeen an allegation of a breach of discipline.

The final right of appeal for an aggrieved employee is by way of an appeal to theIndustrial Commission constituted by a Public Service Appeal Board appointed under theIndustrial Relations Act 1979.

8.3.1.3 Appointed Officials Not Subject to Part 5 of the Public SectorManagement Act 1994

Enforcement of discipline in agencies not covered by Part 5 of the PSM Act variesaccording to the governing legislation of the particular agency. Chief executive officersare normally responsible for managing the disciplinary process. As part of our researchinto this Specified Matter, we wrote to all public sector agencies to determine whetherthey had adopted a code of conduct and if so how it was enforced. Many of the agenciesnot bound by Part 5 of the PSM Act responded by stating that their codes were enforcedby management techniques and performance appraisals of staff. Agencies also indicatedthat disciplinary procedures and informal counselling were methods used where a breachof a code had occurred.

For example, Mr J. Mackaay, Commander (Discipline) of the Western Australian PoliceService outlined the disciplinary process of that agency.

Where a police officer has breached the general rules relating to discipline, the officer isserved with a Disciplinary Charge Sheet and the matter is determined by theCommissioner of Police where the plea is one of guilty to the charge.

Should the officer plead not guilty, the matter is determined by a Tribunal Officer of therank of Chief Superintendent or above, appointed by the Commissioner of Police.

Police Disciplinary Tribunals are not bound by the rules of evidence applicable to courtsof law, therefore, the standard of proof is on a balance of probabilities having due regardto the gravity of the matters alleged.

The punishment imposed on a police officer for a breach of the Regulations are coveredby Section 23(4) of the Police Act.

(a) a reprimand;(b) a fine not exceeding $200.00;(c) reduction to a lower rank;(d) reduction in salary to a specified rate within the limits of salary fixed in relation to

the rank held by him;(e) suspension from duty;(f) discharge or dismissal from the Force.

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8.3.1.4 Local Government Officials

As we discussed in Section 7.2.1.2, many local governments have adopted codes based onthe Draft Code of Conduct produced by the Western Australian Municipal Association(WAMA). Although this is a voluntary code without enforcement provisions, WAMAdoes support the concept of an enforceable code, but has suggested that such enforcementshould be based upon self regulation (WAMA, 1995: 5).

Under the LGA 1960, local governments can make by-laws that prescribe a certain type ofbehaviour for both elected members and staff. Breaches of council by-laws unders.190(5)(d)(i) of the LGA 1960 can attract fines up to a maximum of $500.

In addition, professional and technical local government staff have codes of ethics set bytheir respective professional association, including the code of ethics produced by theInstitute of Municipal Management (IMM). In 1995, the IMM published DisciplinaryProcedure By-Laws which established a national system for self-regulation of professionalemployees in local government. The disciplinary system, which applies to all members,includes investigation committees, disciplinary committees and an Appeals Committee. Inthe case of a breach of the code, penalties may include reprimands, suspension, forfeitureof membership, fines or direction to undertake professional development (IMM, 1995: 4).In addition, unless the Disciplinary Committee or Appeals Committee determinesotherwise, the name of the member, nature of complaint and penalty imposed is to bepublished in the official federal journal of the Institute.


As noted, the PSM Act establishes provisions for the enforcement of disciplinary matters,including those relating to contravention of public sector standards of codes of ethics, buthas limited coverage. The operation and effectiveness of the PSM Act is under review.One of the areas being reviewed is the enforcement of disciplinary matters.

Section 5.41(g) of the Local Government Act 1995 comes into force on 1 July 1996. Itdefines the functions of chief executive officers as specifically including responsibility forthe employment, management, supervision, direction and dismissal of employees. It doesnot address the issue of contravention of codes of conduct.


Most of the submissions that we received were in favour of codes being enforceable andsanctions available for breaches of codes. In his submission, the Commissioner for PublicSector Standards, Mr Digby Blight, supported the use of disciplinary provisions for allpublic officials:

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If the code of ethics for the public sector, and agency specific codes of conduct are to betruly effective and enforceable, it would therefore be appropriate that disciplinaryprovisions exist, in some form or another, which apply to all public officials.

This view was supported by Mr Geoff Gamble at the Merredin public seminar where hestated:

I can’t see the point of having a code of conduct if there are no penalties applied. What’sthe point? ... I think there should be penalties. I don’t know how strict they should be butthey should be strong enough to bear a significant outcome and perhaps avoid thesituation where a breach might be contemplated.

In Discussion Paper No. 9, we asked whether the disciplinary provisions of the PSM Actshould apply to all public sector organisations. Most submissions which addressed thisissue responded in the affirmative, although few elaborated on this answer or indicatedhow this might be achieved.

Ms Helen Le Cordier expressed the view that was most commonly found in the publicsubmissions when she wrote:

Yes it should, not different rules for different organisations.

In his submission, the Parliamentary Commissioner for Administrative Investigations(Ombudsman), Mr Robert Eadie, pointed out that it may not be necessary for thedisciplinary provisions of the PSM Act to apply to all public sector organisations:

While it may seem logical that at least the main disciplinary provisions of the PublicSector Management Act should apply to all public sector organisations, this may notalways be necessary or appropriate, e.g. some organisations (such as police) alreadyhave fairly extensive disciplinary provisions in their own legislation.

Mr Robert Cock, Crown Counsel, spoke at a Perth public hearing in favour of agenciesadministering their own disciplinary process in the event of a code being breached. Heconsidered that chief executive officers were best placed to consider the particularcircumstances of an agency:

I still believe the public sector can administer its own codes. I know that’s a very vexedquestion. I mean, the issue involving the police force is relevant in the same context, butI believe that the codes have to be administered by the public service because even ifyou bring in or purport to bring in an external overseer, it’s really going to be ineffectivein getting to the detailed departmental operations because no overseer could ever havethe resources to have a daily analysis and examination of what everyone is doing,whereas the CEO of the organisation through his or her mechanisms can.

A number of local government authorities commented that their codes were notenforceable. Examples included the Shire of Cranbrook which observed:

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This code does not have a formal enforcement process; the President, Councillors andsenior management informally appraise employees on an ongoing basis (this is achievedmainly because of the small nature of our organisation).

In its correspondence, the Town of Narrogin stated:

The Town of Narrogin’s code of conduct in unenforceable at law. The generalexpectation is that elected members and staff will absorb, understand and observe thecode of conduct if they are to be an effective component of the organisation.

On the other hand, correspondence from the Town of Claremont outlined the use of localgovernment by-laws under the LGA 1960 as a means of enforcing certain behaviour:

It is interesting to note that councils within Western Australia have adopted StandingOrders By-Laws. Therefore any Standing Order By-Law that requires a particular type ofbehaviour e.g. non disclosure of certain matters, can be enforced at law. The Town ofClaremont Standing Orders By-Laws provides that any person committing a breach ofthe Standing Orders is liable to a penalty not exceeding $40.

The Department of Local Government noted that the LGA 1995 would give authoritiesmore flexibility in enforcing codes.

In this regard, local government will have the power under the new Act to adopt theircode of conduct as a local law and attach penalties for non-compliance. Should theydecide not to do this, the only sanctions that will apply will relate to the non orinaccurate disclosure of financial interests. However, local publicity about breach of acode will no doubt have an impact.

8.3.4 Analysis

We have considered the arguments that the content of some codes and the purpose forwhich they are established could make them difficult to enforce or inappropriate forsanctions to be applied. If codes are to be taken seriously by public officials and succeed incontributing to higher standards in the public sector, then there must be a means ofdisciplining breaches. Without some method of enforcement, a code of conduct will be oflittle value as it could easily be ignored.

As a means of ensuring that all public sector employees are aware of codes of ethics andcodes of conduct and their importance, concise codes should be incorporated into thecontracts of employment of each public sector official.

One of the issues we considered was whether it would be preferable for the disciplinaryprovisions of the PSM Act to apply to all public sector employees. At present only aboutone-fifth of State Government employees are subject to the disciplinary provisions of thePSM Act. We recognise that, with the existence of separate legislation governing manyorganisations, it may not be feasible to make such a change. In any case, the PSM Act

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places considerable onus on chief executive officers for the administration of sanctionswithin departments. To centralise the disciplinary process would also be contrary to thedirection of recent government reforms of the public sector. We conclude, that while itmay not be possible to bring the whole of the public sector within the scope of thedisciplinary provisions of the PSM Act, the procedures set out in that Act may beemployed as useful guidelines by those agencies not bound by legislation which imposessanctions for breaches of codes.

In Report No. 2, Part 1, we recommended that the Industrial Relations Act 1979 beamended to establish a Public Sector Employment Tribunal (PSET) to review disciplinarycharges (COG, 1995c: 230). We further recommend that in the first instance breaches ofagency and local government codes should be determined by the chief executive officerwith the right of appeal available to the PSET. At present, the LGA 1995 does not clearlystate that the chief executive officer of a local government is responsible for theenforcement of the codes applying to employees. We consider that this responsibilityshould be clearly stated in regulations pursuant to s.5.103(3) of the LGA 1995 (whichprovides for regulations to be made on matters in relation to codes of conduct).

Report No. 2, Part 1 also recommended that the employer of chief executive officersshould be the Commissioner for Public Sector Standards, rather that the Minister forPublic Sector Management (COG, 1995c: 230). Following on from this recommendationwe recommend that breaches of standards by chief executive officers or chief employeesshould in the first instance, be determined by the Public Sector Standards Commissionwith appeal rights to the PSET. Recommendation 3.3.5 of this Report provides for certainchief executive officers to be appointed by boards. In such cases, breaches of codes shouldbe determined by the relevant board with appeal rights to the Industrial Commission.Local Government chief executive officers should have breaches of codes determined bythe employing council with appeal rights to the PSET.


1. Breaches of codes of conduct in all public sector agencies shouldconstitute a disciplinary offence.

2. Agency-specific codes of conduct, incorporating the code of ethicsrecommended in 8.2.5, should be included in the employmentcontract of all public sector employees.

3. Public sector agencies, the employees of which are not subject to theprovisions of Part 5 of the Public Sector Management Act 1994, or todisciplinary provisions in other legislation, should use disciplinaryprocedures prescribed pursuant to the Public Sector ManagementAct 1994 as guidelines for implementing disciplinary procedureswithin their particular agency.

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4. The regulations of the Local Government Act 1995 should providethat the chief executive officer is responsible for the enforcement ofcodes of conduct for local government employees.

5. Breaches by chief executive officers should be determined in thefirst instance by:

(a) the Commissioner for Public Sector Standards, where theCommissioner is the employer (see Recommendation 83(2d));

(b) the employing board, where a board is the employer; or

(c) the Council, where a Local Government Council is the employer.

6. All appointed public sector officials, with the exception of chiefexecutive officers employed by boards, should have a right to appealdecisions arising from a disciplinary charge under the Public SectorManagement Act 1994 to the Public Sector Employment Tribunalrecommended in Recommendation 83.

7. Chief executive officers employed by boards should have a right toappeal decisions arising from a disciplinary charge to the IndustrialRelations Commission.

8.4 MONITORING AND EVALUATION


The public has often indicated that they no longer feel they can trust their public officialsto work on their behalf with integrity, honesty and probity. Accordingly, it is necessary toconsider ways of improving standards of conduct that will restore public confidence. It canbe argued that public confidence is unlikely to be restored simply by informing them thatprocedures have been put in place to ensure public sector bodies and employees will meethigher standards. The public will want to know what those processes are and be confidentthat they have been assessed independently and will continue to be monitored. As onecommentator has observed ‘... constant vigilance must be exercised to ensure that publicservice ethics are practised’ (Caiden, 1981: 146).

There are no statutory requirements established for external monitoring or evaluation ofcodes developed by other public sector bodies or local government authorities.

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Section 21(1) of the PSM Act provides that the functions of the Commissioner for PublicSector Standards include a monitoring role for various aspects of public sectormanagement. Thus the Commissioner is required to:

• monitor compliance with minimum standards of merit, equity and probity in humanresource management (21(1)(a));

• monitor compliance with codes of ethics (21(1)(b));

• monitor compliance with codes of conduct developed by agencies (21(1)(c)); and

• to monitor compliance by public sector bodies and employees with the generalprinciples of official conduct established by s.9 of the Act (21(1)(e)).

Section 21 also requires the Commissioner for Public Sector Standards to report from timeto time to the minister responsible for any public sector body and to Parliament on thecompliance or non compliance of any public sector body or employee with these codesand principles. In addition, the Commission is required to report annually to Parliament onthese matters.

The Local Government Act 1995 does not prescribe external monitoring or evaluationarrangements for local government codes of conduct. Section 5.103(2) provides for eachlocal government ‘to review its code of conduct within 12 months after each ordinaryelections day and make such changes to the code as it considers appropriate’.Section 5.103(3) provides that regulations may ‘prescribe the content of, and matters inrelation to, codes of conduct ... ’


In its written submission, the Australian Democrats suggested that systems of monitoringand evaluation would facilitate adherence to codes of conduct:

Monitoring and measurement are essential accompaniments to this process. Suchmonitoring and measurement should be of a whole-of-government approach to ensureuniformity and consistency in compliance.

There is a saying that if you cannot measure it you cannot manage it. Benchmarking andquality assurance are essential processes which will help in the management of codes ofconduct. These processes will help ensure active participation by all public officials,keep codes relevant, and ensure continued resource allocation to their promotion.

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8.4.4 Analysis

One theme highlighted by the recommendations that we have made in our first twoReports was the need for openness in government and the right of the public to expect ahigh standard of conduct from public officials. We have formed the view that public trustin the public sector will not be restored by merely assuring the public that all public sectoragencies are developing codes of conduct. Additionally, it is necessary to ensure that:

• codes are pitched at ensuring conduct of a sufficiently high order;

• standards in the code are subject to independent assessment;

• a system of monitoring is established to ensure that agencies and employees abide bytheir codes of conduct; and

• members of the public are aware of these processes.

Given the number of agencies subject to the PSM Act, we believe that the most effectiveand beneficial way to monitor all agency codes would be to establish a public registerwithin the Public Sector Standards Commission (PSSC). This would not only allow thePSSC to monitor and evaluate the content of codes but would provide a centrally locatedregister for the public to see what rules of conduct have been adopted by an agency.

Codes of conduct for local government authorities are discussed in Section 7.2 of thisReport, where we recommended that a public register be maintained by the Department ofLocal Government and that the Department approve codes before registration.

With respect to those entities listed in schedule 1 of the PSM Act, we consider that similarmeasures are required. We consider that these could most appropriately be implementedby way of a directive from the Premier to those entities requiring them to submit theircodes for approval and registration to the Office of State Administration. As it is importantthat each code of conduct be assessed and approved externally, we recommend that thecode of conduct developed by the Public Sector Standards Commission also be approvedand registered by the Office of State Administration.

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1. Those public sector bodies defined as constituting the public sectorin Section 3 of the Public Sector Management Act 1994, shouldsubmit their codes of conduct to the Commissioner for Public SectorStandards for approval and registration within one year of thepublication by the Commissioner for Public Sector Standards of acode or codes of ethics.

2. The Premier should issue a directive to entities listed in Schedule 1of the Public Sector Management Act 1994 , requiring that they submittheir codes of conduct to the Office of State Administration forapproval and registration within one year of the publication by theCommissioner for Public Sector Standards of a code or codes ofethics.

3. Before approving and registering agency-specific codes of conduct,the Office of State Administration should confirm that the codes areconsistent with the code or codes of ethics published by theCommissioner for Public Sector Standards.

4. The Office of State Administration and the Department of LocalGovernment should establish procedures to monitor compliance withapproved codes of conduct by those public sector bodies andemployees whose codes are registered with them.

5. Codes of conduct should be established by every public sectoragency within one year of the publication by the Commissioner forPublic Sector Standards of a code or codes of ethics .

8.5 ACCESS TO CODES


8.5.1.1 Access to Codes of Conduct by Officials

For a policy to be effective, a basic requirement is that information about the policy shouldbe readily available to the target audience. In this instance the most immediate audienceconsists of those officials who are required to comply with the provisions of a code. In thecourse of researching this Specified Matter, there has been anecdotal evidence that the1988 Code of Conduct was not widely available to public servants. This seems to besupported by the findings of a survey of Senior Executive Service personnel in 1991, thatwas reported in the Commission’s Discussion Paper No. 9:

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Over 70% of WA Senior Executive Service respondents believed there to be a lowawareness of the existing Code of Conduct among public servants and a much largerpercentage believed that the Code was either neutral or (highly) ineffective. (Peachment,1994: 88)

In Queensland, the Electoral and Administrative Review Commission (EARC) reportedsimilar findings from a survey about the then Queensland code. It found:

(a) that 40% of respondents were unaware of the Queensland Code;

(b) 73% believed that their colleagues ‘rarely or never’ used the Queensland Code ...(EARC, 1992: 57-58)

8.5.1.2 Access to Codes of Conduct by Contractors

When considering access to information about standards of conduct, another importantcategory is that of private contractors who tender to government agencies to carry outfunctions that were previously performed by public officials. The contracts are fundedfrom the public purse, and accordingly we recommended in 8.2.5 that the public is entitledto the same standard of conduct and performance from these contractors, that they wouldexpect if the functions were still being carried out within the public sector.

8.5.1.3 Access to Codes of Conduct by the Public

It has become clear during our consultations for this Specified Matter, that the public isconcerned about the standards of conduct of public officials. Some members of the publicmay not be fully aware of what those standards are, and they may have unreasonableexpectations. As an accountability measure, it may be appropriate for a public sector codeof conduct to be available to an organisation’s clients and other members of the public, inthe same way that codes of ethics are available to clients of members of the professions.


The Freedom of Information Act 1992 provides members of the public with a legallyenforceable right to access information held by both State and local government. Section97 (1) requires an agency to cause copies of:

...

(b) each of its internal manuals,

to be made available for inspection and purchase by members of the public ...

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Section 95 defines an ‘internal manual’ to include:

(a) a document containing interpretations, rules, guidelines, statements of policy,practices ...

Section 5.94(a) of the Local Government Act 1995 provides for members of the public toinspect a local government authority’s code of conduct.

The Commissioner for Public Sector Standards has advised that the draft of the code ofethics required under the Public Sector Management Act 1994 will be distributed to thepublic sector for comment in the early part of 1996. It will also be available for publiccomment. This approach was taken by the Commissioner for the development of publicsector standards in human resource management.


In his written submission, Mr Eric Stein suggested that publicity for a code of conductwould give the public greater awareness of their rights and public officials more awarenessof their responsibilities:

The current Public Service Code of Conduct is not widely publicly known about. Itwould be a great step forward if the public were given opportunity to have easyaccess to copies of this document.

It would be equally important that once the code was formulated complete withsatisfactory penalties etc that the rights of the public under that code be widelypublicised and made available so that they recognise they have rights to expect justicefrom public servants improprieties and misconduct.

Publicity would assure public servants themselves were aware their conduct wasaccountable and open to public scrutiny and therefore make them much more prone toconduct their administrative duties in a manner of credible behaviour. (emphasis inoriginal)

Professor John Milton-Smith in his submission at a Perth public hearing, cautioned againstrelying solely on the visibility of codes for effect:

... it is assumed that if they are reasonably visible the principles and maybe thebehaviours advocated by the code will somehow seep into the organisational pores. Ithink that is clearly not the case. In fact, there is some evidence in the United States thatsome of the most corrupt organisations are the organisations with the most impressivecodes judged in isolation.

8.5.4 Analysis

There is little purpose in going through the lengthy and at times demanding tasks ofdeveloping codes of ethics and codes of conduct, if they are not available to those who

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must comply with them. If all relevant officials have participated in the process ofdeveloping the code, they will have a good understanding of it. But this does not substitutefor being able to consult the code when ethical dilemmas arise. We note research in bothWestern Australia and Queensland that indicates a low level of awareness among publicofficials of earlier codes of conduct. It is our understanding that, although copies of the1988 Code of Conduct were initially sent to all agencies, it was not widely disseminatedby all those agencies to their staff. That code has been out of print for several years.

The first step in promoting a code of conduct must be to ensure its availability to relevantofficials. Responsibility for publicising the code of ethics should rest with theCommissioner for Public Sector Standards and with individual agencies and localgovernment authorities with respect to agency-specific codes of conduct.

If the quality of a contractor’s service is going to be measured against certain standards,the contractor should be made aware of those standards.

Additionally, accountability principles require that codes of conduct should be available toclients and the public in general. It would seem that codes of conduct fall within thedefinition of ‘internal manual’ in the Freedom of Information Act 1992 and so would beavailable upon application. We believe, however, that it should not be necessary to lodge aformal application through that Act, that codes should be displayed in public access areasof agencies and local government authorities, and copies made freely available uponrequest. In this Report we have made a number of proposals that would make informationabout codes of conduct available through various means. For ease of reference and claritythey are consolidated in the following recommendations.


1. All new public sector employees should be supplied with a copy ofthe code of ethics and the relevant agency-specific code of conductas part of their induction upon appointment, and subsequently withcopies of any revised codes.

2. All private sector contractors should be contractually bound by therelevant agency-specific code of conduct as part of the tender andcontract awarding process.

3. All agency-specific codes of conduct should be available to thepublic through the respective registers maintained in the PublicSector Standards Commission, the Office of State Administration andthe Department of Local Government as well as through the relevantagency or local government authority.

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8.6 INDUCTION


Staff induction is undertaken in the public sector at the discretion of individual agencies.There is no legislative requirement for such induction programs, neither is there anycomprehensive data available on how many agencies conduct them or their content.

In response to the Commission’s request for information, a number of agencies, includinglocal government authorities, indicated that they used induction programs to disseminateinformation to new employees about codes of conduct, and about certain ethical aspects ofworking in the public sector. An example given, is the need for confidentiality ofinformation to be maintained.

These individual initiatives are consistent with the view that to be effective, codes ofconduct need to be supported by a range of associated measures, including induction. Onthe other hand, induction may be viewed as only a small part of an employee’ssocialisation into an ethical workplace and its value may be limited.


There have been no significant developments in this area since the WA RoyalCommission.


A number of submissions advocated induction as an appropriate opportunity to introduceand promote an organisation’s values and rules to new employees. At a Perth publichearing, Professor John Milton-Smith said:

I have no doubt that one of the most neglected areas of management, which I againwould see as falling into the leadership area, is induction, socialising people into anorganisation – very badly neglected, and especially in Australia for some reason. I thinkthat if you want to ensure that people make an effective contribution you have to invest alot more time, a lot more quality time into introducing them to what the organisationstands for in practice ... So that is of great importance because there is so much turnover.

The Commissioner for Public Sector Standards, Mr Digby Blight, described at a Perthpublic hearing how the administration of induction had changed within the public service:

Well, I was in the Public Service Commission, later Public Service Board, whenpersonnel matters were handled centrally and I believe that some things can be done bestcentrally ... I have no doubt that some departments and authorities, particularly the largerones, have taken things like [induction] up and have done and are doing them very well.

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But I think others have just fallen by the wayside and there is certainly no consistentacross-the-board induction as far as I’m aware.

Mr Blight indicated that there might be a greater need for induction into public serviceethics, as a result of the diminution of the career service:

Nowadays, many people come into the public sector at mid-level, perhaps with theintention of remaining for only one or two terms and then moving on. They receive littleor no induction or in-service training. Some are not aware of duties, obligations andloyalties that are synonymous with a career public service, especially those that arebased on convention. With others there is often the attitude of getting around the rulesrather than an in-built inclination to do the right thing. This probably reflects society atlarge.

Mr Robert Cock, Crown Counsel, suggested at a Perth public hearing, that an examinableinduction program would ensure that codes of conduct were absorbed by new employees:

The legal practitioners’ experience in the articles year is that there is a small course withexamination at the end. It may be that approach is a necessary approach, that yourappointment is dependent upon the satisfactory passing through the induction course andpart of the induction course no doubt is some examination. I don’t see that as beingparticularly onerous or so burdensome as not being an appropriate mechanism. It mustwork. It at least establishes the person has read them and does understand them beforethey move on to employment.

Dr Elizabeth Constable MLA, referred to the employer’s duty to ensure that newlyappointed staff are aware of the rules that apply and the reason for those rules:

... when I interview anybody who is going to work in my office ... I talk aboutconfidentiality and how important that is. I often say, ‘Look, I probably don’t need tosay this to you but unless I say it, ... the responsibility is on me’ and then we have adiscussion about confidentiality because of the number of matters that come throughconcerning constituents and so on which are obviously discussed when we are trying towork out a problem.

Now, I think at that level we need people to be educated – anyone new coming into thepublic service ... there should be someone or some document that says, ‘This is what isexpected of you and this is why.’

In correspondence to the Commission, Mr Kenneth Donohoe, Senior AdministrativeOfficer of the Town of Port Hedland, explained how its code of conduct is linked intoinduction:

The code of conduct document for elected members and staff is circulated through aEmployee Induction Program and in Council Induction Programme to all new councilstaff and elected members.

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8.6.4 Analysis

Induction is an important opportunity for organisations to stress their requirements forethical conduct to new employees. It should be used to introduce the organisation’s codeof conduct and be seen as a foundation for continuing staff development in this area.

Although the content and weight given to induction courses will need to be determined byindividual agencies, Professor Milton-Smith’s opinion, that their quality generally needs tobe improved, should be noted. The Crown Counsel’s suggestion that employment might besubject to successful completion of an induction course on ethics may be worthy of furtherconsideration. We understand that police recruits must achieve a satisfactory standard inthe Professional Conduct and Ethical Behaviour course run by the Western AustralianPolice Academy before being allowed to continue into the police force. In our opinion, thisemphasis on the importance of ethics is appropriate and may be seen as a useful examplefor other public sector agencies.


1. All public sector agencies should conduct induction programs fornew employees that include an introduction to public sector ethicsand the relevant agency-specific code of conduct.

8.7 TRAINING


In the Commission’s Discussion Paper No. 9, it was noted that there were a number oflimitations upon the effectiveness of codes of conduct and that other measures were alsoneeded (COG, 1995b).

Commentators such as Kernaghan (1993) have emphasised the importance of educationand training in promoting adherence to ethical standards. The forms that this can takerange from modules in university public administration courses to workshops, discussiongroups and short courses. It is significant that the Queensland Parliamentary Committeefor Electoral and Administrative Review (PCEAR) recommended that in implementingEARC’s proposed Public Sector Ethics Act and Codes, education and training should beaccorded the highest priority (PCEAR, 1993: 77).

In the course of researching this Specified Matter, the Commission sought informationfrom public sector agencies and local government authorities. They were asked to provideinformation on other means, apart from codes, that they used to establish acceptable

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employee behaviour, and the means they used to communicate codes to employees. Only asmall minority indicated the use of education and training programs.


The Public Sector Standards Commission is in the process of piloting an ethical policydevelopment system to assist agencies to develop their own specific codes of conduct. Weunderstand this involves a workshop format that is designed to educate and train staff, andto encourage their participation.

In September 1993, a session on Public Service Ethics was introduced as a component ofthe Executive Development Program in the Western Australian Public Service. Thisprogram is designed for middle level managers, but it is not compulsory.

In March 1994, the Royal Institute of Public Administration Australia released an EthicsEducation and Training Guide which outlines a theoretical system for ethics training andbackground information on public sector ethics.


Many who made submissions on this Specified Matter were in favour of training tofacilitate adherence to codes of conduct.

The Chairman of the Salaries and Allowances Tribunal, Mr Bruce Collier, expressing apersonal opinion, suggested at a Perth public hearing that an education program shouldsupport a code of ethics and that it should be examinable:

I think there is a real education role there and I think it ought to be – once ... [the code ofethics] is prepared ... by say the Public Sector Standards Commission, that aneducational program could be arranged within the department of the agency with theirhuman resource people there conjointly with the public sector management organisation,... and I would go as far as to say I would examine, not only would I teach but I wouldexamine in the department.

Representing the Australian Democrats at a Perth public hearing, Mr Andrew Murraydrew attention to the role of the family and the education system, as well as the workplace,in educating for ethical behaviour:

The only place you can be sure of getting a consistent message across has to be in thefamily, in our second major institution the educational institution and in our institutionsof employment. Those are the three areas where this has to happen. We can’t go alonglike thought police and tell the family what to do but we can certainly encourage theeducational and other institutions to apply civics and ethics teaching.

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At a Perth public hearing, the Director of Public Prosecutions, Mr John McKechnie QC,indicated that in his opinion ethics training might be more useful than codes of conduct:

... I am not a strong believer in codes of conduct. I am a strong believer in teachingethical policy and developing it within the staff.

... I don’t believe in codes of conduct as being very effective in terms of actuallycontrolling ethical behaviour but at least if you have training you are doing a [form of]risk management – minimising some of the risks.

In his written submission, Mr McKechnie described the training method used in the officeof the Director of Public Prosecutions:

The general method by which we proceeded was ‘learning by doing’. That is – to trainstaff in ethical decision making and setting ethical policy. The training is integrated withother training, such as management, so that thinking ethically becomes part of anindividual officer’s mode of working.

The training proceeded with participative workshops. These were both separateworkshops – ie lawyers together, administrative and clerical staff together, and mixedgroups. This method exploits the team building capacity of small group workshops andis particularly important in clarifying values at the personal and professional levels. Thusthe method adopted to train is both a means and an end. It gives people experience inethical matters, such as values clarification and at the same time clarifies those valuesfor the office.

The Parliamentary Commissioner for Administrative Investigations (the Ombudsman),Mr Robert Eadie, wrote:

... it is by no means enough just to publish codes – this has to be coupled with intensivepromotion and education campaigns, probably including compulsory seminars at whichpractical examples (in the form of case studies) would be given to illustrate the problemsthe codes are designed to deal with.

The Aboriginal Legal Service, in its written submission, argued that public sector codes ofconduct should include an awareness of Aboriginal issues, with an emphasis on training:

Codes of Conduct will only encourage improvement in public service standards if thereis proper education training in relation to their requirements, and rigorous enforcementof standards. Organisational culture can prove resistant to changes, to new ways of doingthings or new ethical approaches, and it should not be assumed that the introduction ofCodes will have the desired effect in practice, without education training or methods ofenforcement.

The Aboriginal Legal Service submission went on to outline the importance of linkingcultural awareness with codes:

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As a minimum the Codes of Conduct of ... agencies should reflect the requirement thatpublic servants have a sound knowledge of this historical background, the contemporaryeffects of it, and an acknowledgment and awareness of Aboriginal culture. The issues,including the difficulties, involved in cross-cultural communications should berecognised and addressed. It is difficult to even be polite towards Aboriginal peoplewhen one doesn’t know how to conduct oneself due to ignorance of the cultural norms.

In a written submission, Mr R. Strickland disagreed that education and training couldassist in improving ethical standards in the public sector:

... since it is not possible to legislate to enforce Ethics, Education and training toimprove ethical standard of public officials will bring little in the way of results. This isa matter of education in the schools i.e. before potential public officials have reachedmaturity. Only Codes-of-Conduct with prescribed (mandatory) sanctions will beapplicable after maturity.

8.7.4 Analysis

There is widespread support for the use of education and training as a key component inthe promotion of ethical behaviour in organisations. While we agree that the role of thefamily and schools is central to individuals’ moral development, we have often heardopinions expressed in the course of this and other Specified Matters that generalcommunity standards may have fallen in recent years. The events of the 1980s, changes tothe career public service and higher staff turnover lead us to the conclusion that publicsector employers now have a greater responsibility to educate and train their staff inethical decision making and conduct.

There is no requirement for agencies to provide for staff development in ethical behaviour.The introduction of ethics training, where it does not already exist, should be initiated bychief executive officers and other managers. Managers in turn may need to be educated asto the importance and value of public sector ethics training. Thus our recommendations onthis issue are designed to reflect its importance as an element in professional careerdevelopment.

In this Report we have emphasised the need for codes of conduct to be made relevant tothe business of individual agencies. Ethics training should also be customised in a similarmanner. The National Police Research Unit reported the following findings from a survey:

... many officers mentioned that the formal ethics training that they had received seemedconfusing and irrelevant to their job. Others noted that they had substantial difficultyunderstanding all the formal rules and regulations associated with ethical behaviour.Moreover, most participants were highly critical of the ethics education delivered by‘academics’; as one participant commented with appropriate sarcasm ‘Comparingutilitarianism and logical positivism without tying it into the real world tells an officernothing about how to handle a bribe offer’. (National Police Research Unit, 1995: 7-8)

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There is a need for all agencies to ensure that employees receive ethical training that isrelevant to the requirements of their jobs. As new issues emerge, training should beadapted to address those issues and identify ethical implications arising from those issues.We are aware that several agencies have implemented Aboriginal cross-cultural awarenesstraining in the past and this is commendable. This kind of training, and ethics training ingeneral, conducted on a continuing basis, allows the issue of staff turnover to beaddressed; keeps employees up-to-date with current issues; and underlines the agency’scommitment to ethical practice.


1. All public sector agencies should incorporate ethics training as acomponent of staff development and observance of agency-specificcodes of conduct.

2. Ethics training at agency level should be relevant to the business ofthe agency or local government authority.

3. For senior managers to remain in the Senior Executive Service, theyshould be required to undertake training in ethics as part of theircontinuing professional development.

4. The Public Sector Management Office should initiate thedevelopment and implementation of the Senior Executive Serviceethics training recommended in 3. above. Ethics training programsshould also be made available to as wide a range of other publicsector managers as possible.

5. Agencies that include Aboriginal people amongst their clients shouldconsider introducing Aboriginal cross-cultural awareness training fortheir staff and incorporating these issues into their codes of conduct.

6. The chief executive officers and senior employees of localgovernment authorities should be required to undertake continuingprofessional development that includes training in ethics.

8.8 LEADERSHIP


Codes developed with the involvement of all employees, are the most beneficial. Manycommentators have expressed the view that it is important for codes to be controlled fromthe top, with the organisation’s leaders promoting the code through their example ormanagement. Often codes are devised by management in response to a crisis, distributed to

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subordinates and soon forgotten. In such instances, the leaders may regard the code merelyas a public relations exercise. Where ethical leadership is weak, there is little chance thatcodes of ethics will be effective. There is even less chance if the leaders engage inunethical activities.

The report of Mr Tony Fitzgerald, QC in the Report of the Commission of InquiryPursuant to Orders in Council (the Fitzgerald Inquiry), recognised the crucial role ofinappropriate leadership in fostering corrupt practices:

The Queensland Police Force is debilitated by misconduct, inefficiency, incompetence,and deficient leadership ... The relationship between Sir Johannes Bjelke-Petersen andSir Terence Lewis provided a decade during which the police culture was encouragedand expanded, positions of power and influence were allocated to many of the wrongpeople, and the attitudes and practices of ordinary police, which under differentcircumstances would have developed more positively, instead degenerated. (Queensland,Commission of Inquiry Pursuant to Orders in Council, 1989: 200-1)

To develop an effective, ethical culture within an organization, it is suggested thatexemplary actions and conduct from leaders are critical. A leader, who is seen to be achampion of an ethical culture, sends a powerful message to staff and clients of thatorganization:

Current bureaucratic leaders do, of course, exercise an important influence on theethical – or unethical – behaviour of their immediate subordinates who can in turn passthe message down the hierarchy. Moreover, the efficacy of a code of ethics can bepromoted by bureaucratic leaders who live by its precepts – who translate the preceptsinto action. (Kernaghan, 1993: 25)

The Chief Justice of Western Australia, the Hon. Mr Justice David Malcolm, recognisedthe central role of leadership in a speech on business ethics:

Let me first say something about leadership. A person who is a leader in the communityis primarily a person who by his words and actions guides and persuades others to adopt,follow or at least respect his or her views ... The best form of leadership is that whichshows the way by being out front and encouraging others by example. ‘Do as I do’ ismore effective than ‘Do as I say’. In today’s language our community, especiallychildren, teenagers and young adults, needs leadership by role models. The same is trueof business.

Leaders who are perceived as shallow, hypocritical pretenders will not do. There is agreat need in every aspect of life, whether in politics, the professions, business,education, science, sport and entertainment for leaders who use their capacities to earnthe respect and admiration of others and use their talents wisely to give the rest of us agood example and good ideas to follow. Service above self and a clear definition of whatis right and what is wrong, as well as an ability to act and persuade in terms of thedefinition, are the essentials of leadership. (Malcolm, 1993: 5)

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In recent times there has been a resurgence of interest in the ability of leaders to bringabout organisational change and to influence the behaviour of individuals or groups. Arecent example of this was a report by the Industry Task Force on Leadership andManagement Skills (Karpin Report):

Unfortunately in Australia, the popular view of leadership has been tarnished by thecorporate failures of the last decade. On the other hand, Australians have always held theleaders of our successful sporting teams in the highest regard, be they at the national,state or local level. The Task Force believes that if this attitude could be translated fromleadership in sport to leadership in enterprise, then significant improvements can bemade to our economic performance. (Karpin Report, 1995: 202)


The Public Sector Management Act 1994 makes reference to the importance of leadershipand states in s.29(1) that:

Subject to this Act and to any other written law relating to his or her department ororganization, the functions of a chief executive officer or chief employee are to managethat department or organization, and in particular –

(a) to provide leadership, strategic direction and a focus on results for thatdepartment or organization ...


The need for ethical leadership was recognised in several submissions. In responding tothe question ‘can education and training assist in improving the ethical standards of publicofficials’, Mr David Clements replied:

Yes – but only if exemplars exist in the organization and CEOs endorse and support theprocess.

Similarly, in his submission Mr Robert Eadie, the Parliamentary Commissioner forAdministrative Investigations (Ombudsman), identified leadership as an importantmeasure to supplement codes of conduct:

... so too is leadership, e.g. public statements by the present Commissioner of Policethat he expects his officers to ‘do the right thing’ when confronted with difficult ethicalsituations, and supporting officers who have done so, should be of considerable help infacilitating adherence to the Police Service code of ethics. (emphasis in original)

The importance of leadership was stressed by Professor John Milton-Smith. At a publichearing in Perth on Specified Matters 11 and 13 on 13 October 1995, ProfessorMilton-Smith said:

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In my view, there is no doubt that the values, the culture of organisations, is very muchshaped by the example and one would hope the inspiration of its leaders. We tried to getaway from that in the sixties and seventies. I think there was a fashion to demote theimportance of leadership in favour of a more egalitarian or flatter approach. I don’t thinkthe two were consistent but I think we have seen enough in politics, in government, inbusiness, to see how the behaviour of the chief executive and senior managers creates aculture which others are influenced by ...

I think that the role for leaders is essentially to establish a culture within the organisationwhich supports the strategy and which supports the values of the wider community.

8.8.4 Analysis

Involving all ranks of an organisation in the development of ethical codes is critical toensure ownership by the staff, but an ethics program should also focus on the importanceof ethical leadership. The process of ethics development requires leaders to foster andguide it in the right direction. This involvement by management in the development ofethical systems should be as much a part of the role of leaders as is their focus on theiragency’s core business. It must become a part of the job description of the chief executiveofficer.


1. The development of ethical conduct should be an importantcomponent of the responsibilities of a chief executive officer.

8.9 OTHER MEASURES


In addition to induction, education and training and effective leadership, other associatedmeasures have been advocated by commentators such as Kernaghan (1991, 1993) tofacilitate adherence to codes of conduct and to address some of their limitations. Often,organisational culture and practices, rather than codes of conduct, are a more importantdeterminant of whether standards of conduct are ethical or not. A code of conduct is likelyto be ineffective where organisational practices are in conflict with professed codes.

Kernaghan and Langford (1991) have suggested the following institutional reforms toincrease sensitivity to ethical issues in public sector agencies:

• decentralisation of decision making within an organisation to promote greaterparticipation by public officials themselves;

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• performance evaluation and incentive systems to acknowledge and reward behaviourthat is consistent with values in the code of conduct;

• greater public participation in government decision making, for example throughadvisory boards; and

• attachment of an ethics counsellor to an organisation to advise public officials facedwith difficult value dilemmas. Sometimes the establishment of an ethics committeeis suggested.


Section 21(1) of the Public Sector Management Act 1994 sets out functions of theCommissioner for Public Sector Standards. The Public Sector Standards Commission hascommissioned the conduct of an ethics survey of public sector agencies, which is beingadministered at the time of writing this Report. The Commissioner for Public SectorStandards has advised that the survey:

... will seek the views and opinions of people both within and external to the publicsector relative to their perception, understanding and adherence to ethical values. Theresults of this survey will not only be used in the development of appropriate codes, butwill also be used to establish a benchmark for future surveys which will determine theeffectiveness of the developments currently being undertaken in this area.


In his written submission, the Director of Public Prosecutions, Mr John McKechnie QC,described the use of staff surveys in his office in order to clarify and list the commonvalues of the office and as part of the development of an ethical organisational culture. Amethod of setting ethical policy was agreed and integrated into the day-to-day activities ofthe office. Arising from this process, a management structure was developed andimplemented:

... the essence of the proposal is a realistic mix of industrial participative democracy andpractical management reality.

It is important to note that the structure is the office government. It is responsible forpractical decisions, such as budget, training, work methods, IT and the like.

The Commissioner for Public Sector Standards, Mr Digby Blight, in his writtensubmission, also placed codes of conduct in the context of a wider organisational strategy:

There needs to be a strengthening of the ethical culture in the public sector, and thereforeit is the way these codes are developed, the extent of management commitment theyreceive, the way in which they are embodied into agencies’ decision making processes

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and the existence of ongoing ethical training and development, that is important. Themethod is as important as the outcome.

The Parliamentary Commissioner for Administrative Investigations (Ombudsman),Mr Robert Eadie, suggested in his submission that a range of associated measures insupport of codes of conduct might include:

... signing a ‘code’ or the equivalent (this is broadly similar to our requirements for newofficers to take an oath or affirmation in accordance with section 8 of the ParliamentaryCommissioner Act) ...

In correspondence to the Commission, Mr David Vaughan, Chief Executive Officer of theShire of Kalamunda, described measures used in that Shire to establish standards:

Other means in use to establish acceptable standards relate to an induction programmefor new employees, annual appraisal interviews, ongoing management scrutiny andreview at our Executive Management Meetings. Documents such as Department ofLocal Government ‘Problems to Avoid’ and Reports on Investigations into LocalCouncils (eg. Boddington) are distributed widely throughout our organisation.

Mr John Hyde, in his address to the public seminar in Perth, said that openness ingovernment would, above all else, promote ethical conduct:

In summary, I’m not opposed to codes of morality, but I don’t have much faith in them.Standards of public probity will be raised by letting the light in onto what publicofficials do, and I can think of nothing that is even approaching that in importance.

8.9.4 Analysis

The discretion to implement most of the measures canvassed in this chapter lies with chiefexecutive officers. Underlying these measures are a number of themes that also recurthroughout the work of this Commission and they are:

• the need for an organization’s own internal practices to reflect procedural fairness;

• openness in decision-making; and

• the implementation of specific accountability procedures.

The responses that we have received and the literature on this issue lead us to suggest thatagencies may need to consider implementing additional organisational measures to fostercompliance with codes. While the measures chosen may vary according to the structure

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and business of the agency, the themes of fairness, openness and accountability should beseen as guiding principles.


1. Chief executive officers and chief officers of all public sectoragencies, including local government authorities, should considerimplementing additional measures to facilitate adherence to codes ofconduct, such as:

(a) performance evaluation and incentive systems to acknowledgeand reward ethical behaviour;

(b) greater public participation in government decision-making;

(c) the use of ethics counsellors or ethics committees; and

(d) oaths or affirmations.

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Chapter 9Financial Independence of Parliament

CHAPTER 9 FINANCIAL INDEPENDENCE OFPARLIAMENT

9.1 INTRODUCTION

9.1.1 SPECIFIED MATTER 14

Specified Matter 14 of the Commission on Government Act 1994 requires the Commissionon Government to inquire into:

The most effective means of securing the financial independence of Parliament so as toenable Parliament to undertake its business.

This matter was included in the Act in response to Recommendation 26 of the 1992Western Australian Royal Commission into Commercial Activities of Government andOther Matters (WA Royal Commission), which recommended that:

The Commission on Government inquire into the most effective means of securing thefinancial independence of the Parliament so that, within clearly defined budgetary limits,the presiding officers and heads of parliamentary departments are able to manage theresources which enable the Parliament to undertake its business. (WA RoyalCommission, 1992: II 5.2.4)

This recommendation arose from a perceived decline in the effectiveness and reputation ofWestminster-style legislatures. In large part, the WA Royal Commission attributed thisdecline to party dominance and its effect on Members of Parliament. Whileacknowledging they had party duties and affiliations, the WA Royal Commission believedMembers of Parliament had a responsibility to act in the wider public interest. For this roleto be properly carried out, the WA Royal Commission highlighted the need for anindependent Parliament. One element in achieving this was to give Parliament greaterfinancial independence from the executive (WA Royal Commission, 1992: II 5.2.3).

The WA Royal Commissioners acknowledged that government would always maintainsome influence over Parliament. Indeed, this is a feature common to most parliamentarylegislatures, where the executive and legislative branches of government are linked. Someargue for fundamental change to our parliamentary system to break this link. The startingpoint for our inquiries on this Specified Matter, however, is the present system ofgovernment.

A government is formed by the party or coalition winning a majority of seats in the lowerhouse at a general election. As a result of its majority, a government can control theoperations of the Legislative Assembly, including its funding. If the governing parties alsohave a majority in the Legislative Council, they can be said to control the Parliament. As

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Parliament is funded from public monies, the government determines its annual budgetallocation, as it does for any public sector agency.

The WA Royal Commission warned of the effect such a financial tie could have:

... it [the government] should not be allowed, through its control of the State’s budgetaryprocesses, to blunt the capacity of the Parliament to review the government itself. For solong as the Parliament is financially subservient to the Executive, the effective dischargeof its responsibilities is at the mercy of the Executive. (WA Royal Commission, 1992: II5.2.3)

To remedy this, the WA Royal Commission advocated that Parliament should manage itsown resources, with a view to ensuring that the Parliament would be ‘... properly equippedto fulfil its responsibilities in a manner consistent with its constitutional independence’(WA Royal Commission, 1992: II 5.2.3).

During the course of this inquiry, we consulted widely with Ministers of the Crown,Members of Parliament, senior public servants, parliamentary staff and the public. Apartfrom complaints about limited resources, there appeared to be little dissatisfaction with theprocedures for financing the operation of Parliament. Most accepted the need forgovernment to have the final responsibility for parliamentary expenditure.

Nevertheless, some argue that Parliament should have more control in determining theamount of its resources. Various options have been suggested to achieve this, ranging froma separate appropriation Bill for Parliament to the establishment of an independentparliamentary commission.

In considering options for greater financial control, we have been conscious of the needfor Parliament to carry out its functions efficiently and effectively. To this end, we haveexamined a number of related issues, such as whether Parliament should beadministratively restructured and the extent to which all expenditure should be included inParliament’s budget.

9.2 CURRENT BUDGETARY PROCESS

9.2.1 FINANCIAL INITIATIVE OF THE CROWN

In Westminster-style parliaments, no legislation dealing with expenditure or taxation canbe considered unless it has been recommended by the Crown. This is known as thefinancial initiative of the Crown, as ‘the Sovereign, being the executive power, is chargedwith the management of all the revenue of the State, and with all payments for the publicservice’ (Erskine May, 1989: 684).

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In Western Australia this principle is enshrined in s.46(8) of the Constitution ActsAmendment Act 1899:

A vote, resolution, or Bill for the appropriation of revenue or moneys shall not be passedunless the purpose of the appropriation has in the same session been recommended bymessage of the Governor to the Legislative Assembly.

The Governor acts on the advice of the Executive Council, which consists of ministers ofthe Crown. Section 46 also establishes the Legislative Assembly as the only house wheremoney bills can be introduced. This means that only the government, which controls themajority in the lower house, can initiate appropriations or taxes:

It is a long established and strictly observed rule which expresses a principle of thehighest constitutional importance that no public charge can be incurred except on theinitiative of the Executive Government. (Pettifer, 1981: 32)

While the government has control over financial measures, it must obtain Parliament’sapproval to spend public money. The lower house grants the appropriation, while theupper house agrees to that grant.

Some argue that while it is proper for the government to have the financial initiative overits own appropriations, it should not control those of the Parliament. Those who hold thisview do not consider Parliament to be part of the ‘ordinary annual services of theGovernment’ (s.46(6) Constitution Acts Amendment Act 1899), and that it therefore shouldnot be included as part of the annual appropriation Bills of the budget.

9.2.2 BUDGET FORMULATION

For the purposes of the Financial Administration and Audit Act 1985 (FAAA), Parliamenthas five discrete departments: the Legislative Assembly, the Legislative Council, the JointHouse Committee, the Joint Printing Committee (Hansard) and the Joint LibraryCommittee. Each department head is the Accountable Officer for that department.

The five departments of the Parliament follow a similar budgetary process to any publicsector body. Departmental estimates are prepared by the heads of the five departments, andare submitted for approval to the relevant Presiding Officer (Speaker, LegislativeAssembly; President, Legislative Council). In the case of the three non-chamberdepartments, the Presiding Officer who is chairperson of the Joint House Committee forthe year approves budget estimates. Currently, that is the President of the LegislativeCouncil. The five heads of departments do not normally consult in the process unless anitem affecting all departments is at issue, such as provision of computers.

The Presiding Officers may consult the Treasurer if there is any problem with theestimates. Consultation between the representatives of Parliament and the Treasurerrecognises the special place of Parliament in contrast to other public sector institutions. It

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also provides members with the opportunity to make representations through the PresidingOfficers.

When the parliamentary departmental budgets are finalised, they are submitted to Treasuryfor inclusion in the government’s annual budget. Each department plans its futureoperations within these budgetary limits. During the 1995-96 Financial Year, Parliament’sexpenditure is expected to be around $23 million, or 0.4 per cent of the total state budget.

During the budgetary year, Parliament may need extra funds. This usually occurs as aresult of establishing unplanned select committees. When there is a need for unforeseenexpenditure, the respective Presiding Officer must consult with Treasury and requestadditional funds from the Treasurer’s Advance Account.

Parliamentary departments comply with Treasury guidelines in much the same way asother government departments, providing monthly budget monitoring, and cash flowstatements (in five separate reports). Forward estimates are made on a four year timetable,the coming year plus the next three. Projections for the following years are updated wheninformation affecting them comes to hand (for example, televising Parliament). The finalsay over budgetary allocations rests with the Treasurer.

9.2.3 CURRENT ACCOUNTABILITY PROCESS

The FAAA requires that all government departments and agencies report annually toParliament on their operations. Annual reports outline the activities of agencies over theyear and include financial statements and performance indicators. The financial statementsand performance indicators are subject to audit by the Auditor General.

The departments of Parliament do not comply with the requirements of the FAAA.Although parliamentary departments prepare financial statements, undertake internal audit,follow Treasurer’s instructions and are subject to external audit by the Auditor General,they do not publish annual reports, or produce performance indicators. In 1988, thePresident of the Legislative Council, Mr Clive Griffiths stated:

... we are not completely satisfied that the [Financial Administration and Audit Act1985] together with its regulations and Treasurer’s Instructions can be complied with intheir entirety whilst still maintaining Parliament’s proper independence from Executivecontrol. (WAPD, Council, 31 August 1988: 2355)

In the Fourteenth Report – Consolidated Fund Estimates 1995/96, the StandingCommittee on Estimates and Financial Operations criticised the accountability of theparliamentary administration, drawing attention to an inappropriate accounting structureand failure to produce annual reports (1995: 10).

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9.3 OPTIONS FOR FUNDING PARLIAMENT


Funding for the Western Australian Parliament is included in the appropriation bills of theannual state budget. Similar arrangements apply for the parliaments of Tasmania andSouth Australia. In the Federal, Victorian, New South Wales and Queensland Parliaments,and also in the United States Congress, funding is provided using an annual separateappropriation bill. In the United Kingdom House of Commons, the New ZealandParliament, and also until recently in the Queensland Parliament, parliamentarycommissions formulate the annual budget. In order to judge which arrangement is bestsuited to the Western Australian context, it is helpful to examine the experiences in someof these other jurisdictions.

9.3.1.1 Commonwealth Parliament

While the Federal Parliament did not obtain its own appropriation bill until 1982, moves todo so date back to 1964 (Reid & Forrest, 1989: 404). At this time, in response to executivemoves to tighten control of the funding of parliament, a committee of the government’sown senators recommended that parliamentary appropriations should not be consideredpart of the ordinary annual services of the government.

This recommendation related to s.53 of the Commonwealth Constitution, which prohibitsthe Senate from amending proposed laws appropriating revenue or monies for the ordinaryannual services of the government. By suggesting that appropriations for parliament bedealt with in a separate annual appropriation bill, the committee was endeavouring to givethe Senate, as well as the parliament as a whole, more control over its funding. Thegovernment did not implement the committee’s recommendation.

Although the issue was occasionally raised and debated in the intervening period, it wasnot until the tabling in 1981 of the Report of the Senate Select Committee on Parliament’sAppropriations and Staffing (the Jessop Report), that change was implemented. The reportrecommended that parliament’s funding be contained in a separate amendableappropriation bill.

The Committee also foreshadowed the establishment (1982) of the Senate StandingCommittee on Appropriations and Staffing which would in the first instance formulate theSenate’s budgetary requirements. Although the report also envisaged a similar committeeoperating in the House of Representatives, this did not occur. This was not due to lack ofsupport from the Speaker, the Rt Hon. W. M. Snedden had been a notable advocate ofparliamentary financial independence, criticising the former funding arrangements in thefollowing terms:

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... it involves Parliament making ‘bids’ about which the Executive may apply aqualitative judgment and thereby restrict the ability of the legislature to discharge itsconstitutional duties. The purpose of the Westminster system is to enable the Parliamentto overview the Executive, not the other way around. (Senate Select Committee onParliament’s Appropriations and Staffing, 1981: 18)

Although the reforms that resulted from the Jessop Report were of historical significance,the extent to which they gave the parliament financial autonomy is open to question.While the government acted on the report, it maintained control over the total amount offunds allocated to parliament. This was made clear when, after successive increases in theamounts appropriated for the Commonwealth Parliament between 1982/83 and 1984/85,the Minister for Finance began modifying the estimate made by the Senate StandingCommittee. The Minister, Senator the Hon. Peter Walsh, explained his view:

I explicitly do not accept the proposition that the Parliament determines how muchmoney the Parliament will get. The Executive Government has the financialresponsibility, and in the end the Executive Government will determine that question.(quoted in Reid & Forrest, 1989: 407)

Despite resolutions of the Senate objecting to this practice, and attempts to involve thegovernment early in the process of determining estimates, it remains the case that theSenate’s funding is controlled by the government (Evans, 1995: 151).

9.3.1.2 Victoria

Parliamentary financing has also been reviewed in the Victorian Parliament. This beganwith an assessment of the management of the parliament by the Auditor General, upon therequest of the Presiding Officers. The assessment found there was an inadequate level ofcontrol and co-ordination between the five parliamentary departments. To begin to remedythese shortcomings, the Presiding Officers commissioned a comprehensive study (theFoley/Russell Report, 1991) to chart reform of the parliament. Its authors remarked on theapparently perilous position of the Victorian Parliament:

... with existing attitudes, structures, resources and funding procedures the VictorianParliament cannot fully discharge the role required of it in the Victorian constitutionalframework. (emphasis in original) (Foley & Russell, 1991: 58)

Such an assertion of the primacy of the separation of powers doctrine led one critic toremark:

It may well be more relevant to ask whether the ‘doctrine’ is not in reality a myth ...political concerns always take precedence over parliamentary concerns. (Cope, 1992: 45)

Among the many reforms envisaged by the study, was a recommendation that theparliament have a separate appropriation bill. This bill would be prepared by the Presiding

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Officers, in consultation with a proposed Parliamentary Service Committee and thegovernment.

In response to the study, the parliament established a joint select committee to report onthe recommendations that should be adopted by the parliament. The committee’s firstreport (November 1991) endorsed the need for a separate appropriation bill, but furtherrecommended an amendment to Victoria’s Constitution Act 1975 to make a parliamentaryappropriation bill a constitutional requirement. The report also suggested that provisionsrelating to the need for Governor’s messages should no longer apply to appropriations forthe purposes of parliament, and that the bill should include all items relevant to therunning of parliament. The establishment of a Parliamentary Service Committee was alsoendorsed, to be composed of equal numbers of representatives from both houses and ofgovernment and opposition.

The appropriation recommendations were endorsed by the then government in aministerial statement by the then Premier on 18 March 1992. An interim arrangement wasemployed in the 1992/93 financial year, and a separate appropriation bill was introducedby the new government for the 1993/94 year. While this was a major reform, the newgovernment did not re-establish the joint select committee, nor implement otherrecommendations, such as the constitutional changes or creating a Parliamentary ServiceCommittee. In addition, the 1993/94 parliamentary appropriation bill was rushed throughthe lower house, with debate restricted to no more than 80 minutes (Coghill, 1993: 142).

Again, the extent to which the advent of this bill has furthered the financial independenceof parliament is questionable. The President of the Legislative Council in Victoria, theHon. Bruce Chamberlain MLC, recently stated in correspondence with the Commission onGovernment that ‘[c]urrently, the total budget base is largely determined by theGovernment of the day which has applied the same constraints to the Parliament as thosewhich it has generally applied to all other budget sector agencies’ (Chamberlain, 1995).

9.3.1.3 New South Wales

New South Wales is another jurisdiction in which the issue of parliamentary funding hasbeen closely examined. It was a condition of the ‘Memorandum of Understanding’ enteredinto in October 1991 by the then government and three non-aligned independents, that amanagement board for the parliament be established. It was envisaged that this boardwould be responsible for all budgetary and management matters. As a result of theMemorandum, the Report on Managing the Parliament was issued (Moore & Wilkins,1992).

The report recommended that a Parliament Commission be established comprising 14members, seven from each house, including the Presiding Officers and equal numbers ofgovernment and non-government members. The Commission was to be chaired by theSpeaker of the Legislative Assembly, with the President of the Legislative Council as the

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Deputy Chair. Executive representation on the Commission was to be limited to theLeader of the House in the Assembly, and the Leader of the government in the Council.The report recommended that the Commission be established by statute.

While the bulk of the report was concerned with restructuring the administration of theparliament, a separate appropriation bill was also addressed:

It is recommended that the budget for the Parliament Commission be submitted at thesame time as the annual appropriations but that this budget should be required to bepresented as a separate bill. (Moore & Wilkins, 1992: 28)

A separate appropriation bill for the New South Wales Parliament was first introduced in1993. A Parliamentary Management Bill, to establish the Parliament Commission, wasintroduced following the report, but was dropped on the recommendation of the JointSelect Committee on the Management of Parliament, which was appointed to report on theMoore and Wilkins recommendations. The Joint Select Committee recommended insteadthat the Commission be established by resolution. A Parliamentary Management Board, inthe form of a Joint Standing Committee, was established by resolution on 5 December1994. Following the general election of March 1995, the Board was not re-established.Although the parliament has its own appropriation bill, the amount allocated in the billremains in the hands of the executive government.

9.3.1.4 United States Congress

The United States Congress is an example of a legislature having financial independenceas a result of a separate appropriation bill. In the United States, the legislative branch ofgovernment (the Congress) is separate from the executive branch (the office of thePresident). In Australia the two are combined. This enables the Congress to legislate for itsown expenditure.

The annual legislative branch bill includes all of the costs associated with runningCongress. Provision is made for the travel costs of members, the costs of electorate officesand the maintenance of Congressional buildings and grounds. In 1960, the legislature’sbudget was approximately $128.8 million with about 6300 House and Senate employees.By 1991, these figures had grown to around $2.2 billion and 17,300 respectively.

9.3.1.5 United Kingdom

While the House of Commons does not separately legislate for its expenditure, it doeshave some independence from the government by virtue of the House of CommonsCommission (HCC). The HCC was mentioned by the WA Royal Commission as an optionfor consideration in changing parliamentary financing arrangements in this state (WARoyal Commission, 1992: II 5.2.3).

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The HCC was established under an Act of the UK Parliament (the House of Commons(Administration) Act (HCA) 1978). It has responsibilities only for the House of Commonsand not the House of Lords. It consists of the Speaker (the Chairperson of theCommission), the Leader of the House, a member nominated by the Leader of theOpposition and three backbench members (generally one from the government, one fromthe opposition and one from the smaller parties). The Commission is the employer of allstaff in the house, and has responsibility to ensure their conditions of employment arebroadly in line with those of the civil service. A Board of Management, comprising sixdepartmental heads and chaired by the Clerk of the House, advises the Commission on allmatters affecting the departments and is responsible for implementing decisions of theHCC.

The HCC is responsible for preparing financial estimates. These estimates are laid beforethe house by the HCC as part of the normal budgetary process. Before the 1978 HCA Act,the estimates were laid before the house by ministers. There is no formal role for theTreasury in the preparation of estimates, nor are there formal limitations on expenditure:

This is a far cry from the days when Treasury approval had to be secured for theappointment of an extra part-time cleaner. This control by the House of its ownadministrative expenditure has proved important in respect of the staffing andoperational expenses of select committees, including overseas travel, and thedevelopment of research services in the Library. In these matters the elected House ofthe legislature can boast a precious degree of independence. (Griffith & Ryle, 1989:160-1)

For accountability purposes, the HCC publishes an annual report which includes reportsfrom each department. The value of the HCC annual reports has been questioned:

It would be difficult to design a more uninformative document than the House ofCommons Commission’s annual report. It tells the reader nothing of the Commission’spolicies for resourcing the services of the House or for planning its development; verylittle of the work of the departments of the House or the developments they propose andnothing about their standards of service or their costs. A reader can scan the report andnot have the slightest idea of what the expenditures and the revenues of the organisationare. (Garrett, 1992: 183)

9.3.1.6 New Zealand

The New Zealand Parliament is another legislature with a commission to overseeparliamentary financing and administration. The Parliamentary Service Commission(PSC) was established in 1984, along similar lines to the HCC. Chaired by the Speaker ofthe House, the seven member PSC has jurisdiction over the staff of the unicameralparliament, services to members (including electorate offices) and the parliamentarybuildings. A General Manager, with the permission of the Commission, draws up thebudget for the parliament, with the exception of the Clerk’s Office, which has its ownbudget. The General Manager and the Speaker appear before the Cabinet Expenditure

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Committee to bid for the finances of parliament, and are thus subject to the samelimitations placed on ordinary government departments.

9.3.1.7 Queensland

The unicameral Queensland Parliament included a parliamentary commission untilrecently. Also called the Parliamentary Service Commission, it consisted of sevenmembers, chaired by the Speaker. Ministers, except for the minister who was also Leaderof the House, were excluded from membership of the commission. Although thecommission approved the estimates prepared by parliamentary officers, these weresubmitted to the Treasury and the Cabinet Budget Review Committee for scrutiny. Thusthe commission was not a safeguard for the financial independence of the parliament. Priorto its abolition, the Hon. J. Fouras, the Speaker and Chairperson of the commission, hadbeen critical of its performance:

For example, the commission has been given the choice of having an education office orcar phones for members; we chose car phones. The commission, given the choice ofspending money on procuring more adequate space for committees ... would prefer asecond electorate officer. The commission, given the choice of making the user pay withregard to Hansard, at this stage would choose not to use the money in other ways ... I donot have any great regard for, first the parliamentary direction of the commission inQueensland in terms of parliamentary principles and, secondly, its collective wisdom. Inmany ways it dilutes the authority of the Chair ... (23rd Presiding Officers and ClerksConference, 1992: 245)

The Queensland experience casts doubt on whether parliamentary commissions, made upof Members of Parliament, acted in the best interests of the efficient and effectivemanagement of parliament in deciding funding issues.

9.3.1.8 Options

There are four models for financing parliament:

• the existing practice in Western Australia, South Australia and Tasmania, whereparliament is funded in a similar way to ordinary government agencies;

• a separate appropriation bill, controlled by the executive government (theCommonwealth, Victoria and New South Wales parliaments), or the parliamentexclusively (United States Congress);

• a parliamentary commission, with either a limited (New Zealand) or leading role indeciding the funding of parliament (United Kingdom House of CommonsCommission); or

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• a combination of a separate appropriation bill and a parliamentary commission,where the commission formulates amounts to be included in the bill (Queenslandprior to September 1995).


Arrangements for funding of the Western Australian Parliament have changed little sincethe establishment of the Parliament.


People directly involved in Parliament, such as present and former members as well asparliamentary staff, were keen to express their views. At the Perth public seminar, theformer federal Minister for Finance, the Hon. Peter Walsh, acknowledged:

... the argument for some financing arrangement independent of the executive becausethere is a real danger ... when a government has either done something or something hashappened which would be politically embarrassing to the government if it was fullyexposed and that if the parliament has any inclination to expose it, a parliamentarycommittee is one avenue for doing it and if the government can ensure there is no moneyavailable, they can at least delay the investigation and perhaps block it off altogether. Irecognise that example but I think the constraints on that sort of misuse of executivepower have to be political constraints rather than legislative constraints.

Mr Walsh believed that to give the Parliament autonomy in respect to its financialarrangements would be to ignore a basic tenet:

In my view, a fundamental principle of sound government, at all levels, is that the peoplewho spend public money have the political responsibility or the odium, if you like, forraising it ...

The President of the Legislative Council, the Hon. Clive Griffiths MLC, did not see a needto overhaul the present system for funding the WA Parliament:

There is nothing intrinsically wrong with existing methods of framing the budget ... thatis, under the direction of the presiding officers. Those methods ensure that decisions aremade on merit without regard to political considerations. Members of parliamentpronounce on adequacy of the budget through formal processes such as the estimatescommittee.

Mr Griffiths did highlight one instance in which he felt the system of parliamentaryfinancing had been shown to be vulnerable:

... in 1983 when we presented our budget, our estimates for the budget, I got a call fromthe Clerk to indicate that the budget had been massively slashed by Treasury. So I calledon the Treasurer, who was the then Premier, and asked him why the Legislative Councilbudget was being interfered with for the first time in living history. He called a meeting

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of the Treasury Officers and himself and the Clerk and the Finance and PersonnelOfficer from Parliament and me and he said, ‘I’m not going to give funds to a house thatis a pain in the backside to me and my government.’ That was pretty clear and prettydistinct that there was going to be some jeopardy placed on the budget of the LegislativeCouncil from then on if it didn’t conform.

Nevertheless, Mr Griffiths did not believe that this instance revealed any fatal flaws in thesystem:

... the reason that we were able to get funds was because they knew that I was going tostand on top of the town hall and scream to the world about it and that I was quitecapable of doing that, but I believe that if people with the proper intent and the desire –and I believe that in future society will be demanding not only from the work that youare doing, but from a couple of royal commissions that we have had that people now areaware that they have a role to play and I think it is an ill wind that doesn’t blow somegood. I think that people will never do that again, hopefully.

The President did not see any merit in proposals for a parliamentary commission:

There is nothing to show – and I have had a good look at it, I have been over there toWestminster – that parliamentary commissions achieve greater efficiencies than thoseobtained under this traditional system and the House of Commons commission is not avery good example if you are looking for one. Its success is more apparent than real butto them it may be okay where they have got 651 members. In the discussions I have hadwith them nobody seems to be jumping up and down with glee at the great success thatthey have enjoyed since they have had that system operating.

Likewise, he did not endorse a move to a separate parliamentary appropriation bill:

Neither can it be supposed that a separate appropriation act for parliament necessarilyreflects a high degree of financial independence. It is merely cosmetic if the degree ofcontrol retained and exercised by the government in setting funding levels is largely thesame as that in existence before the separate enactment is introduced.

The Clerk of the Legislative Council, Mr Laurie Marquet, was similarly not critical of thepresent system of funding:

Personally I think that the current recurrent funding arrangements are not too bad. Thereis always a case that can be made for improved funding ... but financial independence isnormally seen as a means whereby the houses can determine the extent of their ownbudgets without any Treasury interference or review, or indeed a veto of somedescription being exercised by the Treasurer, and I think that is a dangerous proposition.

He also believed that financial independence for Parliament would break the nexusbetween responsibility for revenue raising and expenditure:

It would seem to me that if the houses determine their own budgets to the exclusion ofthe government, then there are no grounds on which it can be argued that the government

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must accept any degree of political responsibility for Parliament expenditure because theability to determine Parliament funding is denied to the government. Parliament does ititself and therefore the doctrine of ministerial responsibility and the collectiveresponsibility of the government, in my view, falls to the ground.

Mr Marquet did not see any particular attraction in a separate appropriation bill:

I don’t think honestly that it makes any difference whether it’s a separate parliamentaryappropriation act or whether it’s included in the number 1 Appropriation Act. Thedanger of course you take is that if you have a separate Parliamentary Appropriation Actit’s open to amendment by the Legislative Council ... There is a potential for conflict in asituation like that unless, for want of a better term, there are political solutions applied toovercome any disagreements that might otherwise occur on the floor.

Dr Elizabeth Constable MLA was in favour of changing the current parliamentaryfinancing arrangements:

I would like to see a situation where we could strengthen Parliament’s ability toscrutinise government, as you probably guessed, and one thing that I think we need inorder to do that is to have Parliament as independent as possible. I’m not sure that wecould say that we have very much financial independence at all and that would be onearea I would like to see the Parliament strengthened in.

Dr Constable did not express a preference for either a separate appropriation bill or aparliamentary commission but did state that:

I think, whether it is a parliamentary commission which I think was suggested also inyour discussion paper or a separate bill, I can see the merits of that and perhaps one ofthe merits would be that there would be more information available than there is now.There is not an awful lot of information available about how the funds are spent andmore detailed information would be important and perhaps we would get that in aseparate bill.

Dr Constable, however, did not support the US Congress model:

We don’t want to be in a situation like the White House where they seem to have abottomless pit and nobody knows where the money comes from or what it’s spent on andI think there should be the same standards of accountability that we demand of any otherarea in the public sector.

At the Perth public hearing, Mr Barry MacKinnon, a former Leader of the Opposition, wasasked about the significance or weight that should be attached to the 1983 episode that sawthe President of the Legislative Council clash with the then Premier. Mr MacKinnon didnot think that the incident revealed any fundamental flaw in the current system of funding:

I think you are right in your perception and that is that there will always be sometensions between the government and the Parliament in terms of its operational budgets

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but the Parliament is not without power and if it is going to be seriously inhibited in itswork then they will say so in a form that will do the government damage. So I think byand large that process works.

In his written submission the Auditor General, Mr Des Pearson, supported the ideal ofparliamentary financial independence, with one important qualification:

As a matter of general principle, it is appropriate that the State Parliament as thesupreme institution of State government should have the opportunity to determine itsown financial requirements. Nonetheless, it must do so in such a way as to respect theelected government of the day which is held responsible by the electorate for thefinancial management of the state.

Mr Pearson supported a separate appropriation bill, primarily because it would make therunning costs of the Parliament more transparent. He suggested that ideally such a billshould operate against the background of fiscal responsibility legislation, which sets aframework for long-term objectives in fiscal policy and performance reporting.

The Under Treasurer, Mr John Langoulant, did not support parliamentary financialindependence:

If Parliament (or any other body) was able to determine its own budget, without alsobeing responsible for raising the revenue necessary to fund its expenditures, thegovernment’s fiscal strategy would be subject to significant uncertainty. It is difficult tosee how a government could be reasonably held accountable for budget results when partof the process is outside its control. Given the economic significance of sound budgetmanagement it would be most undesirable to put in place a process which might lead toa government being less than fully accountable.

Mr Tony Rutherford, Director of the Institute of Public Affairs, was in favour of theprinciple of parliamentary financial independence and a separate appropriation bill. Hisconcern was to ensure that this did not give undue licence:

You also need to make the whole process really quite transparent. I mean, parliament is aterrible paradox. They waste a lot of money. They waste quite a lot of money onthemselves but at the same time they do desperately need better working conditions ofevery kind.

Mr Max Trenorden MLA, wrote that the Parliament should not be subject to financialcontrol by the government, provided that accountability checks were adhered to:

It is important to recognise that Parliament is not only placed under financial pressurefrom the government of the day but also directly from Treasury. There is no argumentfor Parliament to be controlled by the government of the day, let alone an agency of thegovernment. In the overall argument it is important that the mechanisms supplied toParliament for its own financial independence are subject to the same pressure aseverybody else, that is scrutiny and the pressure to actually obtain whatever funding is

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deemed necessary. If Parliament is to reassert itself to the prominence it should have,then it must have control of its own financial destiny, therefore it should raise its ownbudget, carry its own Bill but have a very answerable, open system.

In addition to its own appropriation bill, Mr Trenorden suggested that a parliamentarycommission style joint house committee be formed with responsibility for the funding ofParliament:

Parliament should have a Joint House Committee to build and carry its appropriation.The committee must be in a position to be able to take advice and or submissions fromTreasury and the government of the day but should not be bound by them. TheCommittee should form and give carriage to its own appropriation bill. A part of theprocess should be open public hearing where the public and other interested bodies canquestion the appropriation. The actual formation of the committee should be a process ofParliament itself, giving the Members ultimate control.

Should there be a disagreement between such a Joint House Committee and the Treasury,it would be resolved in the public forum. As Mr Trenorden explained at the Perth publichearing:

I think Treasury should be able to make a public statement it doesn’t like whatParliament’s asking for and then Parliament has to make a corresponding argument thatit needs what its asking for. I think that should be a public document. Treasury should beable to criticise whatever appropriation is required.

Emeritus Professor Martyn Webb viewed the issue of parliamentary financialindependence in a wider context and stressed the need for a greater separation of powers:

Unless and until there is a separation of powers it is absolutely vital that Parliament notbe made financially independent. The reasons for this assertion are based upon thesimple proposition that financial independence is itself dependent upon a complete andabsolute separation of the executive from the legislative branches of government.

Mr Alan Tonks, a former Auditor General, was in favour of a separate appropriation billfor Parliament, prepared by a parliamentary commission. He considered the Treasurershould be able to set limits on the amounts appropriated as:

In the present circumstances, complete financial independence does not appear practicalor possible.

Mr Rob Parke was concerned that the executive could control parliament, but he wascautious of granting parliament complete control over its own budget. At the Manjumuppublic seminar Mr Parke said:

... in principle it had to be wrong. The executive can control the parliament – has to bewrong. It just can’t be that way that parliament has to look over its shoulder all the timeat what [they are] saying and doing that they have to worry about what the executive

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might do. It’s a compromising situation so in principle it has to be wrong, but ... I thinkthere should something in between ... where they are independent so that it’s not openslather and they just can’t write their own cheque and Senator Walsh apparently said that... obviously that would be a disaster too ...

At the Geraldton public seminar, Mr Athol Smith saw merit in a separate appropriationbill:

I would like to see the separate appropriation bill. I think it would be interesting to knowhow much government is costing. I would like to see everything included, like overseastrips and everything connected with government.

9.3.4 Analysis

We have previously stated that Parliament’s central position in our political system hasbeen diminished by executive dominance (COG, 1995b: 4). The argument in support offinancial independence for Parliament is that it will help Parliament to reassert its centralrole.

This argument assumes that the decline of Parliament is in some way linked to its lack offinancial independence. Yet there appears to be little evidence that our Parliament hasbeen prevented from undertaking its business by the action of the executive in limiting thefinancial resources of the Parliament. Except for an incident in 1983 recounted by thePresident of the Legislative Council, no present or former member who appeared before ushighlighted specific instances of parliamentary activity being hampered by fundingconstraints set by the executive.

Indeed it was those most involved in the financing of Parliament who saw few deficienciesin the current arrangements. Both the President and the Clerk of the Legislative Councilsaw little need for changes to the current system of determining Parliament’s financialresources. While many submissions from the public advocated more funds for Parliament,that is a somewhat separate matter from the question of how Parliament’s financialresources should be determined.

The current arrangements appear to us to strike a balance between the responsibility ofexecutive government for the expenditure of public funds, and the need for Parliament toobtain appropriate financial resources. The Presiding Officers retain control of the processof preparing estimates of expenditure from Parliament’s side, and negotiate directly withthe Treasurer on contentious issues. As illustrated by the President of the LegislativeCouncil, the Presiding Officers have a powerful voice, should circumstances arise thatthreaten the financial resources of Parliament.

Finding that existing arrangements function satisfactorily does not mean that alternativesmight not work better. Change could only be recommended, however, if an alternative wasdemonstrably superior. With this in mind, the Commission on Government wrote to the

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Federal and all State parliaments, requesting information as to their financingarrangements. A compilation of the responses received is shown in Table 9.1.

In those jurisdictions where a separate appropriation bill is used, there appears to be noconsequent financial independence of parliament from the executive. That is, while aseparate appropriation bill may differentiate the funding of parliament from the ordinaryannual services of government, that fact does not, in itself, make the parliament financiallyindependent.

A separate appropriation bill was first introduced into the Federal Parliament for the1982/83 financial year. At that stage the estimates were not subject to review by theexecutive. For the 1985/86 financial year the Minister of Finance instituted a reviewprocess which effectively returned control to the executive. The increases inappropriations made by the Federal Parliament between 1982/83 and 1984/85 (annualaverage increase of 17.4 per cent in nominal terms, or 8.5 per cent in real terms), possiblyindicate the consequences of giving legislatures too much rein in determining their ownappropriations.

Separate appropriation bills are used for the Victorian and New South Wales parliaments.In both parliaments, however, the government has retained the final say over the amountsappropriated. Thus the funding arrangements in these states, despite the separateappropriation bills, are effectively very similar to Western Australia’s.

Queensland also has a separate appropriation bill, but the Queensland situation is distinctin that the balance of the numbers in the chamber has put the Presiding Officer in aposition of some power relative to the executive leading to financial independence for theparliament.

An important consideration relevant to any proposal for a separate parliamentaryappropriation bill in Western Australia is that, not being for the ordinary purposes ofgovernment, it could be amended in the Legislative Council. This could lead to conflictbetween the two houses and a convention would almost certainly have to be observed thateach house would not interfere with the funding of the other. The potential for conflictover funding of the joint departments, however, would remain. This possibility of conflictmakes a separate appropriation bill for Western Australia less desirable.

Parliamentary commissions have been tried less in the Australian context than separateappropriation bills. The Queensland Parliament, being unicameral, was perhaps the bestsuited to experiment with a commission (1984-95), given the avoidance of conflictbetween two houses. Despite this, as indicated earlier, the commission was beset byproblems, and did not advance the financial independence of the parliament.

The House of Commons Commission (HCC) was mentioned by the WA RoyalCommission as an option for consideration in the Western Australian context (WA Royal

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Commission, 1992: II 5.2.3). The HCC is responsible for the administration of asignificantly different and larger institution than the Western Australian Parliament. Tocope with our bicameral parliament, however, a parliamentary commission here mightwell be larger in terms of numbers of members than the HCC. The recommendation of theNew South Wales review was for a 14 member commission.

The experience in Queensland, together with the administrative problems of acommission, lead us to conclude that a parliamentary commission is not a suitable modelfor financing Parliament in Western Australia.

The evidence available on this Specified Matter has not demonstrated a need for anoverhaul of the process by which Parliament is financed. No instance of the Parliamentbeing unable to undertake its business has been highlighted. No alternative model, whetherit be a separate appropriation bill or a parliamentary commission or both, is demonstrablysuperior to the current system in Western Australia. We are also conscious of the politicalreality that party solidarity will nearly always ensure that the executive will have the finalsay on any appropriation bill presented to Parliament.

The present process for determining funding for Parliament is a workable compromise. Itrecognises the need for the government to be responsible for the expenditure of publicfunds. It also recognises, though informally, the difference between Parliament andordinary government agencies, as well as the role of the Presiding Officers of Parliament.

One change that would be worthwhile, is that the entitlements of members (such aselectorate offices and travel expenses) be brought under the umbrella of a restructuredparliamentary administration. Electorate offices and travel entitlements are administeredby the Ministry of the Premier and Cabinet, along with other entitlements for members.These entitlements are directly related to the Parliament, rather than the government. Theyshould properly be administered by the Parliament, after their determination by theSalaries and Allowances Tribunal (as recommended in Chapter 11). Such a change is notdependent on a separate appropriation bill. The expenditure could instead appear in theParliament division of the State budget.

This would give a more accurate and accessible account of the cost of State Parliamentthan currently appears in the budget papers. All expenditure directly related toparliamentary activity should be administered by the Parliament itself.

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1. The current process for determining appropriations for theParliament should remain.

2. The administration of entitlements for members, currently carried outby the Ministry of the Premier and Cabinet, should be transferred tothe Corporate Services department of the Parliament, proposed inSection 9.4.5.

9.4 INTERNAL DEPARTMENTAL STRUCTURE


Parliament is structured around five departments: the Legislative Assembly, theLegislative Council, the Joint House Committee, the Joint Printing Committee and theJoint Library Committee. The departments of the Legislative Council and LegislativeAssembly advise the Presiding Officers and provide administrative support for theirrespective chambers. The other departments manage the services and facilities that arecommon to both houses.

The Joint House Committee provides services such as maintenance, security,communications and catering. The Joint Printing Committee is responsible for theproduction of the records of Parliament, as well as information technology services, and isheaded by the Chief Hansard Reporter. The Parliamentary Librarian and staff providelibrary services to members and information about the Parliament to the general public.

The five departments operate independently of each other, except on matters affecting twoor more departments. Each department manages its own staffing, administrative andfinancial operations. The autonomy of the departments can lead to a lack of coordinationand overlapping responsibilities. For example, over a number of years severalparliamentary departments operated incompatible computer systems. Further, this structurecan create difficulties for government agencies such as Treasury and the Auditor General’sOffice. Rather than dealing with a single institution, they must deal with five separatedepartments. This can be administratively inefficient and time-consuming.

This five department structure is not unique to Western Australia; it had its genesis in thecolonial parliaments prior to federation and reflects arrangements in the UK House ofCommons. Likewise the history of complaints as to the efficacy of such structures is alsolong. In 1910, the then Prime Minister of Australia, the Hon. Andrew Fisher MPcomplained that ‘... the present practice of considering the officers of the Senate and theofficers of the House of Reps in different departments is, in my opinion very

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unsatisfactory, and in the best interests of the Parliament ought not to continue’ (quoted inReid & Forrest, 1989: 408). Despite other complaints, reviews and attempted reforms overthe intervening period, the Federal Parliament still retains its five departmentadministrative structure.

The review of the Victorian Parliament discussed in Section 9.3.1 found that Westminsterparliaments commonly had ‘...no single point of managerial direction, [with] corporateservices functions of personnel and financial management being largely dispersed amongthe departments’ (Foley & Russell, 1991: 33). In recommending the creation of a positionof Director General of Parliamentary Services, to which all other departmental heads,including the Clerks, would report, the Foley and Russell report stated that:

... we believe that the Parliament itself is the entity which should be managed, and that itis no longer in the best interests of the Parliament as a whole for its management supportarrangements to be dispersed and fragmented. We believe that in general the idealstructure is a unified managerial entity for which a single Permanent Head ismanagerially responsible, and in which there are functional divisions responsible for themain areas of work and a centralised single corporate services division looking afterpersonnel, finance and other services needed in common by all parts of the organisation.(1991: 34)

These clear sentiments have not been taken up; the office of Director General was notcreated, and the number of departments has not been reduced.

The New South Wales Moore and Wilkins review of parliament also recommended areduction of the number of departments in that jurisdiction to three: Legislative Assembly,Legislative Council and Joint Services. This recommendation was not implemented.

Although the recommendations of reviews in other states have not been implemented, it isworth considering whether the present departmental structure in our Parliament isefficient. For example, the Western Australian Parliament could be restructured as onedepartment (with five sub-departments), or as three departments. The latter option couldbe achieved by retaining the administrative departments for the Legislative Assembly andthe Legislative Council, and creating a Corporate Services Department, which would beresponsible for all joint services.

Alternatively, along similar lines to the Foley and Russell recommendations, a position ofchief executive officer of Parliament could be created. This option is linked to the idea of asingle parliamentary department. This officer would centrally coordinate all administrativeand financial aspects of Parliament. One advantage of this option would be that ‘... allfunctions common to the Parliament would be centralised in one office or Secretariat-General ... and this would achieve economies of scale’ (Senior Management CoordinationGroup Report in Murray, 1989: 100). It would also mean that Parliament could berepresented by a single spokesperson on all parliamentary, as opposed to political, matters.

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The creation of a chief executive officer position is contentious as it can be argued thatsuch an officer could interfere with the running of the two houses:

There are certainly constitutional reasons for retaining separate and independentchannels of support for the Speaker and President of the Legislative Council, since inconstitutional terms the two houses of Parliament are separate entities ... and it istherefore necessary to avoid a situation where the independence of either house can becompromised or made subservient by reasons of administrative arrangements, budgetcuts or similar measures. (Foley & Russell, 1991: 33-34)

The single department option must deal with the question of the autonomy of the twohouses before it could be considered viable.


There have been no structural changes to the parliamentary administration since the WARoyal Commission.


The President of the Legislative Council, the Hon. Clive Griffiths MLC, voiced hisconcern over the current structure of the Parliamentary administration:

We have five departments at Parliament House, you wouldn’t believe. Five differentdepartments with five different budgets, with five different people drawing up thosebudgets and five different accountable officers under the FAA Act. I think that justsaying that much would imply to anybody that has actually ever run a business wherethey are using their own money to run the business with that there is a lot of room formismanagement and inefficiencies.

The President suggested that one department would be sufficient for administeringParliament:

I think we ought to have one parliamentary department under the control of the twopresiding officers that prepares an estimate, with advice of course from the departmentalheads for the five departments with one person being the accountable officer and thatone person not being the chief executive officer, for the want of a proper name for them.Not one of the five chief executive officers but somebody else, like the Finance andPersonnel Officer at Parliament House.

The Clerk of the Legislative Council, Mr Laurie Marquet, was in favour of a threedepartment structure for parliamentary administration, with the merging of the joint housedepartments into a unitary corporate services department:

What I would like to be able to do is put myself in a position where I remain theaccountable officer for the Legislative Council vote, but the administration of mydepartment is carried out by Corporate Services. In other words, they provide the

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administrative services that I require to run the Legislative Council. In other words, thetable officers and the committee officers remain with the department of the LegislativeCouncil; the rest, financial and so on, go to Corporate Services.

Mr Marquet was unimpressed by suggestions that one department was sufficient toadminister Parliament:

I would not be prepared to have to go to one accountable officer in order to get financialapproval to expend funds in relation to the Legislative Council. I simply would find thatan unacceptable proposition. If you do that, you are going to destroy the independence ofthe two chambers because what it means is that the two chambers will then have tojockey against each other for the provision of services at the behest of one individualwho is not accountable to either chamber. He can play one chamber off against the other.

The Auditor General, Mr Des Pearson, suggested the most practical alternative to thepresent structure was to have three departments:

Looking at it from a management and a cost-effectiveness perspective, I think thesmaller number the better because they are in the scheme of things five relatively smalldepartments, and if it wasn’t possible to achieve one department, even a move to, say,three departments ... a compromise would be a department each for the Council and theAssembly within a – and a large joint house or support department might be acompromise. It would respect the autonomy of the respective houses.

Mr Andrew Murray, Deputy Convenor of the Australian Democrats, was of the view thatstructural change was justified:

In constitutional terms, the two houses are separate. The independence of either housemust not be compromised or be made subservient to administrative arrangements. Themaximum number of departments should be three: upper house, lower house and thewhole of parliament with appropriate divisions or subdepartments below them.

Mr Max Trenorden MLA thought that the structure and the culture of the parliamentaryadministration had to change. He also was in favour of a three department structure:

Yes, I would see no reason why three sections wouldn’t work and each house having itssubsections of its own activities like the papers office and so forth and so on. I couldn’tsee why it would be difficult to do.

Dr Elizabeth Constable MLA viewed the present structure of Parliament’s administrationas out-dated:

I suppose it is very hard to break tradition and we have a tradition of the two houses andeach having their own administration and so on. It is a very top-down sort ofadministration which I’m not sure is appropriate for the end of the 20th century and verymuch out of step with a lot of what one sees in some modern management theories and

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practices. It would be interesting to put a new broom through it and perhaps modernisethat administration in some way ...

9.4.4 Analysis

While it is widely acknowledged that the Parliament is under-resourced, calls for greaterfunding and independence are unlikely to be heeded if the funds that Parliament doesreceive are not used efficiently. To this end it is necessary to examine whether the currentstructure of the parliamentary administration is conducive to effective service delivery andminimisation of waste.

The five department structure of Parliament’s administration has historical origins, whichmakes change difficult. It is nevertheless clear that change is justified. The WesternAustralian Parliament is a small public sector institution. To have it divided into fiveseparate departments, with five accountable officers is not consistent with any notion ofeffective, efficient public administration, or for that matter, common sense. On the basis ofinformation put to the Commission it is apparent that the existing structure has led toduplication of services, lack of co-ordination between departments and difficulties forexternal agencies such as the Treasury and Auditor General.

From the perspective of maximising efficiency, a one department structure with oneaccountable officer, would be ideal for the size of the parliamentary administration. Thisoption has the serious downfall, however, of compromising the independence of the twochambers.

The most feasible option, and one that received most support from submissions, is changeto a three department structure: the Legislative Assembly, the Legislative Council andCorporate Services (incorporating the Joint House, Joint Printing and Joint LibraryCommittees). There should be three Accountable Officers; the two Clerks and a chiefexecutive officer for Corporate Services. In addition to performing all the functions of itsthree predecessors, Corporate Services should also administer common functions for thewhole of Parliament, such as human resources, electorate offices and travel. The newdepartment should be overseen by the Presiding Officers.

Detail such as reporting relationships, resourcing, seniority of the chief executive officerand designing the roles of the former heads of department in the new structure, are issuesfor the Parliament itself to resolve. Our recommendation is to put in place a structure thatwill improve the administration of Parliament, while at the same time preserving theindependence of the two chambers. Such a reform would strengthen Parliament’s claim forbetter resourcing, a proposition that we support.

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1. The number of departments of the Parliament should be reduced tothree:

(a) the department of the Legislative Assembly;

(b) the department of the Legislative Council; and

(c) a Corporate Services department incorporating the existingJoint House, Joint Printing and Joint Library departments.

2. The Corporate Services department should, in addition to performingthe duties of its three predecessors, administer common functionsfor the whole of Parliament, such as human resources, electorateoffices and travel.

3. The Corporate Services department should be managed by a chiefexecutive officer and overseen by the Presiding Officers.

4. For the purposes of the Financial Administration and Audit Act 1985 ,there should be three Accountable Officers; the Clerk of each houseand the chief executive officer of the Corporate Services department.

9.5 CAPITAL EXPENDITURE


The management of parliamentary buildings is an issue that has received little attention inacademic or public administration circles. Indeed, given that Parliament House is one ofthe major public buildings in the State, it is surprising how little is known and writtenabout its ownership, maintenance and management.

Parliament House is built on Reserve No. A 1162 which is dedicated to the use ofparliamentary buildings. Other office space is also leased in nearby streets, but for thepurpose of this report, we will focus on the buildings on the reserve, which is bounded byHay Street, Mitchell Freeway, Malcolm Street and Harvest Terrace.

The buildings are owned by the Crown, as the institution of Parliament is not a corporatebody. The parliamentary building is managed by the Joint House Committee:

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...

(2) The Parliamentary Building is controlled by the Joint House Committeeconsisting of four Members from each House, plus the Presiding Officers as ex-officioMembers.

(3) Rooms and areas of the building which are allocated for the exclusive use for theLegislative Council and Legislative Assembly are under the control of the President andSpeaker respectively. Areas of responsibility are shown on the Plan available forinspection in the Controller’s Office.

(4) The House Committee and the President and Speaker administer their sections ofthe building through the Executive Officer/House Controller who is resident atParliament House.

(5) Final decision in all matters other than conduct in the respective Chambers andGalleries shall rest with the Joint House Committee. (Joint House, 1986: 1)

The responsibility for the management of Parliament House is therefore split between theJoint House Committee and the Presiding Officers; the Presiding Officers are responsiblefor the chambers and surrounding corridors and the Joint House Committee is responsiblefor the other parts of the building. The reason for this separation of responsibility relates tothe need for the Presiding Officers to have control over all matters affecting their houses.

Other than for minor projects, significant capital works projects for Parliament House arefunded under the Capital Works Program. In 1995/6 $1.529 million was allocated for arange of activities including: an electrical upgrade, security equipment, the parliamentaryaudio system and the televising of the proceedings of Parliament (Capital Works, 1995:58). Upon receipt of these funds, the Joint House Committee usually contracts the workthrough the Building Management Authority.

During our enquiries it has become apparent that many people are uncertain whereresponsibility lies for the maintenance of Parliament House. At the same time, the facilitiesof Parliament House are obviously deficient with inadequate working areas for membersand staff. For example, Hansard reporters work in a high pressure occupation but arelocated in temporary cubicles (established in 1983) in poorly ventilated corridorssurrounded by noise and distraction. In both houses, ministers have only shared offices,which means that private conversations must be held in corridors or other inappropriatelocations. Apart from the Presiding Officers’ suites, Parliament House is notairconditioned. These conditions, coupled with late night sittings, produce a difficultworking environment which adversely affects the Parliament’s efficiency.


There have been no changes since the WA Royal Commission.

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Given that public access to Parliament is usually restricted to the public galleries, theinadequacies of the building are not obvious. These inadequacies, however, wereidentified by previous and current members and staff, some of whom expressed strongdissatisfaction with the building.

Mr Barry MacKinnon, former member of the Legislative Assembly and former Leader ofthe Opposition said at the Perth public hearing:

I think the Parliament facilities in this state are abysmal. When you go to Parliament andministers haven’t even got their own offices – I think it’s a disgrace. When you have gotMembers of Parliament that share offices, and I did, with two others or three others – theresources of Parliament is disgraceful and it is easy to see where the power lies inParliament; the President and Speaker have great offices. Very, very good indeed, butthe general members have very second-class facilities and the Hansard reporters, if theyworked in any other facility in this state, would be closed down by the relevantauthorities.

I think it is time that a government – I don’t care which one it is – had the gumption toactually spend some money to provide proper resources and facilities for what should bethe most important building in the state. To that extent certainly I believe the job ofMembers of Parliament is inhibited and limited because of the paucity of the facilities.

Dr Elizabeth Constable MLA also recognised the need to modernise the building to reflectits public role:

I actually think – it is a personal opinion – it’s a very nice building. We need to extendit, we need to modernise it and we need people to feel that it is a place that they cancome into and it’s theirs. Whenever I have visitors in Parliament House, which is quiteoften, the first thing they say as they start walking through is, ‘My God,’ they lookaround and say, ‘why don’t they do something about this place? Look at it. It hasn’t beenpainted for X number of years’ or ‘why is that so grubby and dirty?’ It is the first thingyou notice and I’m sure if you have been in there lately you have seen exactly the samething. It’s appalling.

Concern over the working conditions in Parliament House is also shared by the staff. MrLaurie Marquet, Clerk of the Legislative Council, said:

I mean, even the 1960s additions on the front of Parliament House really don’t come upto scratch. You only have to be on the east side of the building during summer to findout precisely what glass does to heat and you could probably boil water inside some ofthe offices if you put black tubes up against the windows. It really does get unbearablyhot in those offices even though they have got high ceilings. The ventilation – you haveto rely on the open window and of course the open window is simply letting in hot air.

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Mr Marquet also explained that the diffuse responsibilities for the buildings could confuseaccountability, although clearly the Crown was responsible. Mr Marquet also recognisedthe political restraints on expenditure:

... what I think needs to be understood is that the two houses are simply tenants in thatbuilding. The land and the buildings are owned by the Crown, the government. Quiteproperly it’s the Crown that has to make decisions about the maintenance of the fabric ofthat building. Obviously things get a bit blurred. If you have got a permanent tenant inthe form of the two houses after a while you tend to think that the tenants are also theowners of the land and the building and what they say goes but in accrual accountingterms parliament owns nothing. Parliament isn’t capable of owning anything. The onlylandowner there is the Crown.

...

Whilst everybody concedes that Parliament House has probably outlived its usefulnessin the way that it’s constructed at the present time there is a very obvious political reasonwhy governments would be loath to spend huge amounts of money on Parliament Housewhen every other program is screaming for capital expenditure or indeed recurrentexpenditure so that Parliament House has to wait.

9.5.4 Analysis

An efficiently functioning Parliament House is an essential ingredient in the structure ofdemocratic and accountable government. Based on the submissions made to us it appearsthat the present Parliament House lacks sufficient basic amenities for its properfunctioning. A major redevelopment plan should be commissioned for Parliament Houseto functionally upgrade it and to protect it as a place of heritage value.

The executive government is responsible for funding this major redevelopment and thereis a need for a minister to be directly responsible for the capital works program forParliament House. Given that the Treasurer is the minister responsible for theappropriation of parliamentary funds we feel that it is appropriate that the Treasurer beidentified as the minister responsible for ensuring that the development plan forParliament is adequately funded.


1. A redevelopment plan for the upgrading of Parliament House shouldbe commissioned and implemented as a matter of high priority.

2. The Treasurer should be identified as the minister responsible forrecommending the appropriation of the necessary funds for theimplementation of the redevelopment plan.

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9.6 ACCOUNTABILITY


A core concept in our system of government is that the expenditure of public funds mustbe undertaken in a way that is accountable to the public. Public monies are compulsorilyacquired through taxation to be spent in the public interest, and therefore it is essential thatadequate accountability measures be put in place whenever these funds are expended.

Accountability for public expenditure is provided through the FAAA. Under this Act,Parliament is required to subject itself to external audit by the Auditor General, undertakeinternal audit and produce annual reports and performance indicators (FAAA, s. 3(2)). Thedetailed requirements of what is to be included in an annual report are contained inParts IX to XI of the Treasurer’s Instructions. A detailed discussion of the contents andvalue of annual reports can also be found in Chapter 5 of Report No. 1 (COG, 1995a).

In addition to the FAAA, the expenditure and budget of Parliament are subject to thescrutiny of the Standing Committee on Estimates and Financial Operations and theEstimates Committees. The Appropriation Bills and Budget Papers (comprising theConsolidated Fund Estimates, the Capital Works Estimates and the Program Statements)detail the anticipated expenditure of Parliament and provide another form ofaccountability.

Although Parliament is subject to the FAAA, it is unique in that it does not comply withthe requirements of the Act to produce performance indicators or annual reports. It can beargued that this ignores the right of the public to know how its funds are being expendedand gives the public no information about the past, current or planned operations ofParliament.

The Australian legislatures which table annual reports include: Tasmania, New SouthWales, Queensland, Victoria and the Commonwealth Parliament (see Table 9.1). TheCommonwealth Parliament in particular, tables very detailed annual reports. The annualreport of the Department of the Parliamentary Library, for example, suggests that thedevelopment of ‘more meaningful performance indicators’ will be a priority for the 1995/6financial year and ‘performance for 1995/6 will be reported against these measures in thedepartment’s 1995/6 annual report’ (Department of the Parliamentary Library, 1995: 46).

Associated with the issue of the departments of Parliament compiling annual reports is theproduction of annual reports by select and standing committees of the houses. In bothhouses select committees do not produce annual reports, although Standing Order 378(2)requires select committees of the Legislative Assembly to ‘... include a statement showingthe actual (or estimated) costs of the operation of the Select Committee’. The format of thefinancial statements, however, is not always consistent.

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The production of annual reports by standing committees is not consistent for theLegislative Assembly and the Legislative Council. There is no requirement for theLegislative Assembly standing committees to produce annual reports, although somecommittees, such as the Public Accounts and Expenditure Review Committee haveproduced annual reports (for 1986/7 – 1990/91 and 1993/4). In the Legislative Councilsome standing committees produce a review of operations, while other standingcommittees do not produce a regular report.

Performance indicators have been required from government agencies for ten years andform a critical part of the modern reform of public administration. The purpose ofperformance indicators is to allow the reader to assess the degree to which an agencyachieved its objectives, principally in terms of effectiveness and efficiency. Theimplementation of performance indicators across the public sector has not been achievedwithout some difficulty. A recent survey of agencies by the Auditor General found thatonly 18 per cent of agencies reported ‘efficiency and effectiveness indicators which were... relevant to their objectives and appropriate for assisting users to assess performance’(WA OAG, 1994: viii). Furthermore, the Tenth Report of the Standing Committee onEstimates and Financial Operations noted in December 1994:

... a small number of agencies which had presented performance indicators that directlyreflected the programme structure, described the achievement of intended programmeoutcomes and efficiency ratios against meaningful benchmarks or precedents, andincluded explanatory notes which explained the derivation of the measures used ... theCommittee notes, however a marked lack of progress among some agencies, and isparticularly concerned that, although all but one agency had presented indicators in someform, four agencies presented no effectiveness or efficiency indicators at either theprogramme or sub-programme level. (1994: 10)

It is interesting to note that 78 per cent of the parliamentarians who responded to theAuditor General’s 1995 Parliamentary Survey said that the Auditor General’s opinion onperformance indicators ‘provides useful information on agencies’ performance’ which was‘of benefit to them’ (WA OAG, 1995).

Some agencies claim it is not possible to develop performance indicators for theirprograms because the outcomes are difficult to measure or may be affected by otherfactors outside the control of the agency. For example, a program that aims to encouragehigh quality performance art has to grapple with the issue of what is quality art, and how itcan be reliably measured. Similarly, a program that aims to discourage cigarette smokingthrough a public anti-smoking campaign may find that many factors influence the numberof people who smoke and isolating the effects of the anti-smoking campaign could bedifficult.

Similar arguments are used to justify why Parliament House does not produceperformance indicators. The services and activities provided by Parliament are difficult tomeasure. For example, how can the quality of a debate be measured or is it possible to

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assess accurately the effectiveness or efficiency of legislation passed by the houses? Inaddition, many of the costs of Parliament are impossible to control by management. Ifcertain Members of Parliament feel it is useful to debate until dawn and incur considerablecosts in the process, there is nothing that can be done by the management of Parliament toavoid the resultant costs.

Although the work of the members in the houses may not be able to be measured, it maybe appropriate to measure the effectiveness of support services for Parliament. This wouldmean that performance indicators would be developed for the operations of the housesupport services, committee services, Hansard, and joint house services such as finance,catering and maintenance. Effectiveness indicators could be developed which measureclient perceptions and analysis of trends, where clients could include Members ofParliament or the public.

Some also argue that it is contradictory that Parliament, through the legislation it passesand committees it establishes, is requiring greater scrutiny of the expenditure of publicfunds from the public sector while at the same time claiming exemption from suchscrutiny for its own expenditure. This argument is used to support the notion thatParliament, or the departments of Parliament, should produce and table annual reports withaudited financial statements just as other public sector agencies are required to do.


There have been no changes since the WA Royal Commission.


Generally the submissions we received favoured the Parliament being fully accountablefor the expenditure of its funds. A typical sentiment was that expressed by M.J. Martin inresponse to the question posed by the questionnaire: ‘should Parliament be required tocomply with all the accountability requirements of the Financial Administration and AuditAct 1985, such as annual reports and performance indicators?’:

Absolutely yes ... Parliament has to be accountable to the people that pay for it, buy itsservices.

In a written submission, the Australian Democrats explained:

Parliament must be responsible and answerable to the people, not to the executive andgovernment. How then to ensure that parliament is responsible and accountable? Byensuring that it is audited and subject to the regime of the Auditor General’s department,by ensuring that it operates in an open and transparent and accountable manner, that it issubject to the same accountability agencies as is government, that it produces full annualreports and proper performance indicators ...

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There was a view, however, that it would not be appropriate, or indeed feasible, forParliament to comply with the accountability requirements of the FAAA as other publiclyfunded agencies are required to do, despite the legislative requirements for the Parliamentto do so. During a public hearing in Perth, Mr Max Trenorden MLA, supported anaccountable Parliament, but not accountable through the FAAA:

If parliament is going to be the highest court in the land and basically answerable tonobody, then how can it be answerable to an Auditor General or anyone else? There isno question it has to be accountable and it has to be an open process. The only way that Iwould see that happening is by having a hearing basis on which the public could comeand question, anybody who liked could come and question, the joint house committee onits operation.

The Clerk of the Legislative Council, Mr Laurie Marquet, explained that the LegislativeCouncil does not comply with the requirements of the FAAA, and although he has noobjection to the tabling of annual reports, he thought there were problems with producingperformance indicators:

The parliamentary departments have a statutory obligation at the present time underschedule 1A to produce annual reports and performance indicators and the AuditorGeneral has consistently criticised the parliamentary departments that are not doing it. Iaccept the criticism. I do have a draft annual report in my bottom drawer and I do updateit each year but thus far it hasn’t been tabled.

I’m hoping that the situation can change and I think probably it would be moreappropriate for me to produce my annual report and table it before the estimatescommittee well before it starts any hearings on the Legislative Council, theparliamentary budget because it’s in the estimates committee that I believe that I have toanswer for my administration to the house.

As far as performance indicators are concerned, performance indicators are predicatedon the assumption that in order to be able to gauge the quality of the output, you havegot some degree of control over the input. This obviously is not the case so far asparliament is concerned. I have got no control over the input or little control. But whatwe can do and what we have done is try and produce qualitative performance indicators.

The Auditor General, Mr Des Pearson, felt that Parliament should comply with the FAAA,and although he recognised the difficulty in producing performance indicators, Mr Pearsonthought Parliament was not unique in this regard:

... I have reported to Parliament that they haven’t produced the performance indicatorsand I am sure Parliament is aware that they haven’t produced the annual reports ... I takethe approach that they are funded by the taxpayer and they should meet similaraccountability responsibilities.

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I wouldn’t deny that it may be difficult to develop performance indicators but it is alsovery difficult for a range of other agencies. But I come back to the public sector. Wedon’t have the marketplace or competition and things like that to give us an assurance ofhow efficiently and effectively areas are operating so I don’t see why they should beexempted.

The Australian Democrats suggested modern management practices such asbenchmarking, best practice and evaluations should be applied to Parliament. In its writtensubmission it stated:

... how to ensure proper control, judgement, and management in these issues? Firstly,benchmarking. Comparing societies, economies, industries and institutions against eachother is a universal and extremely effective control and evaluation method. The WestAustralian Parliament will need to be comprehensively benchmarked against otherAustralian and democratic parliaments to establish whether its funding relativities areappropriate. These monitoring mechanisms should be subject to the input and approvalto the Auditor General.

Secondly, at least once in the life of a parliament, an independent review should bepublicly conducted to review parliamentary performance. It is important that such areview should be genuinely independent. The best mechanism may be for one personappointed by each of the law and accounting professions to select a further threecommissioners from public nominations.

9.6.4 Analysis

We are concerned that public monies should always be expended in a way that is fullyaccountable to the public. Proper accountability in this State requires compliance with theFAAA, and the fact that Parliament can pass legislation such as the FAAA, which itchooses to ignore, is of particular concern.

We recognise that the development of performance indicators presents particular problemsfor Parliament, but a distinction should be drawn between the activities of the members inthe houses and the activities of the support services. Performance indicators should not bedeveloped for the work of members, but they should be developed to measure theeffectiveness and efficiency of support services.

The activities of standing and select committees should also be open to public scrutiny.We believe that parliamentary committees play an important part in the accountabilityarmoury of Parliament and can be significant in the prevention of corrupt, illegal orimproper activity. For this reason parliamentary committees should be a model ofaccountability and transparency themselves.

All standing committees should produce an annual report which includes a financialstatement. Select committees should include similar information (including a financialstatement) in their final report. The development of a standardised financial report for

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committees would be a significant improvement on the current system where committeescan record expense costs in differing line items.


1. The departments of the parliamentary administration should complywith the Financial Administration and Audit Act 1985 .

2. All Standing Committees should produce annual reports that includefinancial statements.

3. Select Committees should produce financial information in their finalreports.

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Table 9.1: Financial Operations of Parliaments within Australia

FUNDINGARRANGEMENTS

JURISDICTION

Western Australia South Australia Tasmania

Annual Expenditure

(a) How is total annualexpenditure determined?

(b) How is it allocatedamongst parliamentarydepartments?

(a) Same basis as othergovernment departments andagencies, except that the fivedepartments do not provide adetailed breakdown of theirpast or proposed expenditure.

(b) Consultation betweeneach department'sAccountable Officer, theParliament's PrincipalAccounting Officer andTreasury.

Recommendations thensubmitted to PresidingOfficers.

(a) On the basis of previousexpenditure and futurerequirements, and inconsultation with Treasury.

(b) The Legislative Council,House of Assembly and JointServices Division of theLegislature determine theirseparate requirements throughtheir Chief ExecutiveOfficers.

(a) On the basis of estimatedfinancial commitments and inconsultation with theDepartment of Treasury andFinance and staff officers ofthe Parliament.

(b) Allocations are made toeach house, there are no otherdepartments.

Appropriation

Does this Parliament have aseparate Appropriation Bill?

No. No. No.

Budget Process

Is there a parliamentarycommittee or commission thathas a role in the budgetprocess?

No, although the departmentsof Parliament appear beforethe estimates committees.

No, although the Assemblyappoints Budget EstimatesCommittees each year as apart of the annual budgetprocess.

No, although the allocationfor each house is subject toscrutiny by the EstimatesCommittees.

Financial Accountability

Does this Parliament produceannual reports or performanceindicators?

Are they tabled in Parliament?

The departments ofParliament do not fullycomply with the requirementsof the FAA Act 1985 as theydo not table annual reports.

The departments ofParliament are subject toscrutiny by the estimatescommittees.

No requirements for tabling ofannual reports or individualfinancial statements, althoughestimates of expenditure aretabled along with that of othergovernment departments.

The Auditor-Generalscrutinises accountingprocedures.

The Accounting Officer canbe asked questions duringEstimates Committees.

Both houses table annualreports that include auditedfinancial statments.

Reviews

Have there been recentreviews of and/or changes tofunding arrangements?

The WA Royal Commissionsuggested the House ofCommons Commission in theUnited Kingdom is an optionfor consideration.

No. A Reform of ParliamentSelect Committee wasestablished by the Assemblyin 1993. In a 1994 report theCommittee argued that thenotion of a Parliamentarybudget should ultimately beestablished in separatelegislation.

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FUNDINGARRANGEMENTS

JURISDICTION

New South Wales Queensland

Annual Expenditure



(a) Same basis as other governmentdepartments and agencies.

(b) Consultation between Clerks, FinancialController and Management Accountant.

Recommendations then made to PresidingOfficers.

(a) By the Executive Management Groupof the Legislative Assembly (comprisingthe Speaker, the Clerk of the Parliamentand the Program Managers) afterconsultation with the Sub-programManagers.

(b) Based on the goals and objectives ofthe sub-program (parliamentarydepartment).

Appropriation


Yes, since 1993. Allocation of funding is stillcontrolled by the Executive Governmentthrough the NSW Treasury.

Yes, since 1994.

Budget Process


No, although there is an Expenditure ReviewCommittee within Cabinet.

Prior to 15 September 1995 aParliamentary Service Commissionundertook the role of setting andapproving the budget. Since it wasdissolved, the Speaker has taken on thisrole.




Finances are audited by the NSW AuditOffice. The Legislative Assembly, LegislativeCouncil and Joint Service Departmentsinclude financial statements in annual reportsthat are tabled in Parliament.

Parliament completes monthly budgetmonitoring for Treasury.

President of Legislative Council to appearbefore Upper House Estimates Committee.

The Legislative Assembly tables anannual report that includes financialstatements for the Legislative Assemblyand Parliamentary Catering Division.

Monthly budget statements are reviewedby the Executive Management Group andquarterly assessments are reviewed by theClerk of the Parliament.

Reviews


Moore/Wilkins 'Managing the Parliament'(1992). Resulted in the appointment of theJoint Select Committee on the Management ofParliament. On 5 December 1994 a jointstanding committee known as theParliamentary Management Board wasestablished. Due to the change of governmentit never commenced operations.

The introduction of the separateAppropriation Bill in 1994.

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FUNDINGARRANGEMENTS

JURISDICTION

Victoria Federal

Annual Expenditure



(a) Consultation between Presiding Officers,their advisers, Treasurer and BudgetExpenditure Review Committee on matters ofconcern. Parliament also liaises with Treasuryand Department of Finance.

(b) By agreement among the PresidingOfficers and heads of the ParliamentaryDepartments.

(a) According to running costsarrangements which involved negotiationwith the Minister for Finance.

(b) See above. New policy proposals aregenerally considered independently foreach department.

Appropriation


Yes, since 1992/93. Yes, since 1982.

Budget Process


No. Yes. Appropriations for the Departmentof the Senate only are determined in thefirst instance by the Standing Committeeon Appropriations, and Staffing.




Annual reports are tabled by the PresidingOfficers for each of the ParliamentaryDepartments.

Financial statements are included in the reportof the Department of the House Committeewhich is the provider of a centralisedaccounting function to the Parliament.

Annual reports are tabled by the PresidingOfficer(s) for each of the ParliamentaryDepartments. The annual reports includefinancial statements and are subject toaudit by the Auditor-General.

The Presiding Officer(s) also tablePortfolio Budget Statements justifying thefunding sought. The Department of theSenate and the joint departments aresubject to scrutiny by a Senate committeeconsidering the Portfolio BudgetStatements.

Reviews


Foley/Russell Report (1991). Resulted inappointment of a Joint Select Committee(JSC) and two further reports. SeparateAppropriation Bill introduced. JSC notreappointed after change of government.

No, although the Senate StandingCommittee on Appropriations andStaffing comments on fundingarrangements from time to time.

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Chapter 10Caretaker Conventions

CHAPTER 10 CARETAKER CONVENTIONS

10.1 INTRODUCTION

Specified Matter 22 of the Commission on Government Act 1994 requires the Commissionon Government to inquire into:

The appropriate guidelines to be observed by caretaker governments in relation to theirconduct and management prior to elections.

The time between the dissolution of parliament and the declaration of the result of anelection is known as the caretaker period. During this period, questions of accountabilityarise because the government (the executive) continues to manage the business of thestate, even though it cannot be held accountable by parliament during the period.

Caretaker conventions are the rules and guidelines by which the business of governmentadministration is managed during the pre-election period. The two principal aims of anyset of caretaker conventions are to prevent an incumbent government from makingdecisions which might bind an incoming government, and from using public resources orfunds to influence the results of the impending general election. The conventions are alsodesigned to facilitate any change of government. By definition, caretaker conventions areintended to allow the routine business of government to continue until a new governmentis chosen by the voters and sworn in. At that point the caretaker conventions cease to be inforce.

There have been examples of governments specifically established or maintained toperform a caretaker role. These include the 1945 Churchill government in the UnitedKingdom, which followed the break-up of the war-time coalition, and the Netherlandsgovernment of 1958, which followed a Cabinet crisis in that year. A significant Australianexample was the Fraser Government of 1975, which was given a caretaker role until freshelections could be held following the dismissal of the Whitlam Government. At that timePrime Minister Fraser gave the Governor-General specific undertakings that noappointments or dismissals would be made and no policies initiated until after a generalelection was held. This can be contrasted with the normal caretaker requirements whereonly significant initiatives are to be avoided.

Prime Minister Menzies wrote to all ministers following the dissolution of both housesbefore the 1951 General Election:

I should also be glad if you would note that whilst continuing to take whatever actionyou deem necessary in connection with the ordinary administration of your Department,you should not make any decisions on matters of policy or those of a contentious nature

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without first referring the matter to myself. (Commonwealth of Australia, Department ofPrime Minister & Cabinet (1987) Annual Report 1986/7, Canberra: AGPS, 40)

Throughout Australia, caretaker conventions are not set out in legislation and place nolegislative restraint on the operations of government during the election period.

Western Australia has only recently recorded its caretaker conventions. Guidelines on themanagement of government business during the caretaker period were set out in Circularto Ministers Nos. 1/93 and 2/93 (see Appendix 3A) by the outgoing government in 1993.The caretaker conventions in Western Australia are more substantial and comprehensivethan those in other Australian states. The guidelines contained in the two circulars toministers cover such matters as the appointment of public servants, policy developmentand announcement, consultation between the Opposition and the public service, and travelby government members. The conventions provide for the routine public sectoradministration and prepare for the possible transition to a new government.

The question to be addressed in this report is whether the caretaker conventions inWestern Australia should be strengthened further.

10.2 CARETAKER CONVENTIONS

10.2.1 FORM OF DOCUMENTATION


As in Western Australia, the caretaker conventions for New South Wales are contained ina government memorandum to all ministers, which is issued by the premier following theannouncement of a general election. The caretaker conventions for Queensland, SouthAustralia, the Australian Capital Territory and the Commonwealth Government are set outin each government’s cabinet handbook.

In the United Kingdom and Canada there is no single set of rules governing the behaviourof government during the period preceding a general election. Instead, in the UnitedKingdom, standard practice is based on the minutes of evidence taken before the Treasuryand Civil Service Sub-Committee, letters sent to the Sub-Committee, memorandasubmitted by the Cabinet Office, and replies made by the Prime Minister to questionsasked during question time in the House of Commons. No written conventions exist inCanada, apart from a special provision in the Constitution Acts 1867-1982 which allowsthe Governor-General, with the advice of his Executive Council, to authorise expenditure.

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The Western Australian caretaker conventions are contained in Circular to MinistersNos 1/93 and 2/93. These documents have not been amended since their issue in January1993 (Appendix 3A).


In his written submission, Mr James Anderson explained the necessity of having caretakerconventions:

... There are too many possibilities open to an incumbent government to exploit, tofrustrate and delay policies in the event of a change of government – whether byintroducing new policies, expensive administrative reorganisations, contractualundertakings and comments of a long term nature; making important appointments orpromotions.

The submissions received by the Commission were unanimous in affirming thatcontaining the caretaker provisions in legislation would be counter-productive. In hiswritten submission, Mr Barry MacKinnon put it simply:

Their strength is in the fact that they are conventions. Legislation will be much harder toimplement or change and would arguably be less effective.

At the Perth Public seminar, he went on to say:

If you did in fact legislate for such a convention, the question is, “How would youimpose penalties?” Very difficult, I think, to impose penalties for the sorts of things thatare there: appointments, decisions and the like. So I don’t believe it should be legislated.It merely needs to be outlined in the form of the convention written as it is now, in myopinion.

At the Perth public hearings, Mr Laurie Marquet, Clerk of the Legislative Council,suggested a possible framework for the guidelines governing the caretaker period:

I would suggest it should only go so far as both houses by their own resolutionapproving the administrative instruction. In other words, both houses put theirimprimatur on the caretaker arrangements, ...

It’s not substantive law, but in passing the resolution what it means is that the twohouses have considered the arrangements and have found them satisfactory andcommend them to successive governments, and I think that’s really as far as it goes. Weare very trigger-happy when it comes to passing law. We pass law in the most oddcircumstances where, if we were a little more trusting of each other, we would ratherrely, as the English did for nearly 700 years, on the development of convention, customand usage.

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Custom and usage is a far more important way of ensuring that things remain current andrelevant, contemporary, and they also have an amazing effect on governments.Governments do not like to be seen to be breaking constitutional convention because theconvention has, within that framework, its own force.

10.2.1.4 Analysis

Traditionally, and at present in countries such as Canada and the United Kingdom,caretaker conventions have consisted of a set of precedents and accepted practices, oftenunwritten. Such an arrangement has the advantage of allowing the government flexibilityin responding to situations that arise in the caretaker period. While some flexibility isneeded, a balance has to be struck between allowing the government room to adapt tochanging circumstances and ensuring an appropriate level of accountability. If there is noofficial record of the conventions, people are less likely to be aware of their content, oreven of their existence. There is, in addition, more danger of unwritten conventions beingmisunderstood or their meaning distorted.

Most Australian State governments, as well as the Commonwealth government, recordtheir caretaker government guidelines in documentary form. A document clarifies whatthe conventions are and makes it easier to publicise them. If publicised, a formal statementby the government of activities permitted during the pre-election period would help votersdetermine when the government breaches the caretaker conventions.

Another method of recording caretaker conventions is to enact them in legislation, thusremoving from the hands of the leader of the government the power to determine whatactivities are acceptable. A disadvantage of the legislative approach could be a loss offlexibility, since any alterations would require a bill to be approved by both Houses ofParliament.

The present method of having the caretaker conventions written and open to publicscrutiny, but not expressed in legislation, should be retained.


1. Caretaker conventions should continue to be specified in adocument formulated by the government.

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10.2.2 PARLIAMENTARY INVOLVEMENT AND PUBLIC AWARENESS


The current caretaker conventions were formulated as memoranda by the then premiershortly before the 1993 Western Australian General Election. Most other Australian statesinclude their guidelines in their cabinet handbooks.

Caretaker conventions throughout Australia are formulated by the government with littleor no reference to parliament, and there is little publicity about them. The circulation ofthe caretaker documents is not widespread. There is little knowledge of their purpose andcontent, or debate over how the government could be held accountable to the electorate inthe period following the dissolution of Parliament.




At a Perth public hearing, Mr Mal Wauchope, Chief Executive of the Office of StateAdministration, outlined the procedure that resulted in the drafting of the WesternAustralian caretaker conventions prior to the 1993 General Election:

... prior to the 93 election, it was decided, though, that there were a lot of conventionsthat had been accepted as being reasonable practice in the pre-election period which hadnever been documented in any consolidated way. The Public Service Commission usedto put out the occasional circular relating to matters of appointments and there wereother circulars that would go out in an ad hoc way. At that time the government of theday agreed that it would probably be a good idea to document it in the wake of the RoyalCommission and have that documentation issued to ministers at the time the writs wereissued. That was done ...

In his written submission, the Auditor General, Mr Des Pearson, suggested that:

The conventions should be specified as early as possible, and preferably before theannouncement of an election, to allow public debate on and wide dissemination of theconventions.

He further outlined his thoughts at a Perth public hearing:

I would like to see the existing conventions firmed up and made more explicit. We [TheOffice of the Auditor General] take a heightened awareness of what is happening and wehave responded to complaints or reports of inappropriate exercise of executive authority

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during that period, though I would have to say from an audit perspective, in the ones thatI can recall, we didn’t find they were substantiated or clearly an abuse ... we didn’t thinkthey were irregular to the extent that we needed to make a report to parliament on them.So I support strengthening there but I think I would come back more to the more explicitguidelines and making them public well in advance so that there is a better knowledgeand appreciation of the implications.

At a Perth public hearing, Mr Barry MacKinnon concurred:

I think the current government should, in the very near future, well ahead of the nextelection, publish the details of such conventions. In fact my preference would be forthem to actually present it to the Parliament. I don’t know that you should get theParliament to endorse it because often these things just get bogged down then in apolitical argument that goes nowhere. But certainly having it presented to the Parliamentin some form and having a debate of some form, would ensure then that the public’sattention was drawn to it and any issues of concern could be raised before thegovernment then makes a decision about what that convention may or may not be at thatparticular time.

Mr J.E. Knox was also in favour of such a solution in his written submission:

I suggest that the conventions/rules should be written in the form of a short paper andagreed to by parliament on a bi-partisan basis. They should then be published and widelydistributed. If the public and media had such information at their fingertips I wouldexpect that caretaker governments would be careful to comply.

10.2.2.4 Analysis

The conventions are determined by the government without publicity or reference toParliament. If the guidelines are meant to maintain government accountability at a timewhen Parliament is unable to, it may be inappropriate for the government to havecomplete control over their content. We consider it to be desirable for the government toseek parliamentary endorsement of the conventions prior to each general election. Such aprocedure would allow all Members of Parliament to contribute to debate on the rules thatwill govern the behaviour of the government during the pre-election period, as well asensuring regular review and amendment.

The present format of Western Australia’s caretaker conventions, as circulars to ministers,means that they have limited public exposure. The electorate is entitled to be informed ofthe obligations and activities of the government at all times. It is particularly importantthat the electorate is made aware of the caretaker conventions because any breach mayhave important implications.

In order to raise public awareness of the caretaker conventions they should be debated inparliament prior to its dissolution for a general election. This would involve the

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conventions being tabled in both houses and debated by way of a resolution to endorse theconventions.


1. Caretaker conventions should be tabled in both houses ofParliament. Prior to the dissolution of Parliament for every generalelection, both houses should consider a resolution that theconventions be endorsed.

2. Caretaker Conventions should be published in a newspaper withstatewide circulation and in the Government Gazette.

10.2.3 COMMENCEMENT AND DURATION OF THE CONVENTIONS


Government in Western Australia assumes a caretaker role immediately following theissue of the writs for a general election. The government maintains that role until the resultof the election is determined and the new government is sworn in. Apart from limitedexposure in circulars to ministers, there are no formal procedures for notifying ministersand chief executive officers (CEOs) of the commencement and content of the caretakerconventions. It is assumed that notification will take place before the caretaker period. Theconventions in Queensland and South Australia require the premier to provide allministers with a summary of the conventions shortly after the announcement of theelection. In Western Australia, as in other Australian states, the caretaker conventionscease to be in effect once the incoming government is sworn in.




The Auditor General, Mr Des Pearson, discussed the length and the timing of the caretakerconventions in his written submission:

From the time of the dissolution of Parliament to the first meeting of the newParliament, the accountability of the government exists only through the electoralprocess. There is no accountability to Parliament possible over this period. Thus I would

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support a wide duration to be specified for caretaker conventions to apply in order toprovide for accountability of the caretaker government during this time.

In her written submission, Ms D. B. Robinson was of a similar opinion:

[The caretaker conventions should apply] from the time a general election is called untilthe election result has been determined, and until the first sitting of the new Parliament.This would ensure that the incoming government could not act in a dictatorial fashionbefore Parliament meets, and would ensure that Parliament would be called promptlyfollowing an election.

The Hon. Hendy Cowan MLA argued in his written submission that:

The starting date of the caretaker period should be the prorogation of the Parliamentprior to the election rather than the issuing of the writs. It is a fundamental principle ofParliamentary democracy that the government of the day must be accountable toParliament. Prior to prorogation, this accountability can be achieved either throughsittings of the Parliament or through the work of the various Parliamentary committees.Upon prorogation, both opportunities for accountability are extinguished.

In a written submission Mr James Anderson was in favour of a caretaker period of a fixedlength preceding a general election:

As the timing of an election is the prerogative of the incumbent Premier in the existingsystem, and in the absence of a truly fixed term parliamentary session, thought could begiven to defining caretaker conventions as applying at a set three or six month periodbefore the latest date on which the election should be held constitutionally. Should thePremier’s prerogative or circumstances bring about an earlier election then an agreedlegislated set of caretaker conventions should apply but not contrary to the underlyingprinciples.

10.2.3.4 Analysis

There are three points at which caretaker conventions could commence: the last sitting dayof parliament, the date of the dissolution of parliament, or the date of the issue of the writsfor a general election. Traditionally, and in all recorded Australian conventions save thoseof the Australian Capital Territory, the guidelines begin operation when the writs areissued (the Australian Capital Territory Parliament has a fixed term and, as a result, theircaretaker conventions commence 36 days prior to the scheduled date of the election). TheGovernor dissolves parliament prior to the issue of the writs. Table 10.1 presents thetimetables for the four most recent general elections in Western Australia.

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Table 10.1Western Australia: Election Period Timetables, 1982-1993

Event 1983 1986 1989 1993

Last Sitting Day 22/12/82 26/11/85 21/12/88 3/12/92

Dissolution of Parliament 6/1/83 18/12/85 5/1/89 8/1/93

Issue of Writs 21/1/83 2/1/86 5/1/89 8/1/93

Polling Day 19/2/83 8/2/86 4/2/89 6/2/93

Issue of Writs to Polling Day(Caretaker Conventions in effect) 29 days 37 days 30 days 29 days

Dissolution of Parliament toPolling Day 44 days 52 days 30 days 29 days

Last Sitting Day to Polling Day 59 days 74 days 45 days 65 days

If there is a delay between the dissolution of Parliament and the issue of the writs, therewill be a period during which the government is neither accountable to Parliament norbound to follow the caretaker conventions. The above table shows a delay of up to 15 daysoccurred prior to the 1983 and 1985 General Elections. There was no delay in the lead-upto the two most recent elections. The writs have been issued for the past two generalelections on the same date that Parliament was dissolved. We consider that this practiceshould continue, to preserve accountability during the pre-election period.

There can be a substantial gap between the last sitting day of Parliament and itsdissolution. Although traditionally less than three weeks in length, prior to the 1993General Election, Parliament ceased to sit five weeks before it was dissolved. However,although it has ceased to sit, Parliament is still in existence and the Governor, on theadvice of the government of the day, can recall it if necessary.

The caretaker conventions continue to guide the business of government until after theresult of the election has been determined and the newly elected government sworn in.Thus, a caretaker government continues to manage the state, despite having no mandatefrom the electorate. This is acceptable provided that the caretaker conventions areobserved.


1. The caretaker period should commence with the dissolution ofParliament in preparation for a general election. The caretakerconventions should cease upon the swearing in of the newly electedgovernment.

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10.2.4 CONTENT OF THE CONVENTIONS


The Western Australian caretaker conventions are among the most comprehensive inAustralia. They contain guidelines covering the appointment of staff, the development andannouncement of policy, the operation of cabinet and government departments andunproclaimed legislation, as well as a formal process for consultation between theOpposition and the public service during the caretaker period. The conventions areintended to ensure smooth public sector administration as well as avoid partisanshipduring the caretaker period.

Caretaker conventions in this State specify that the government is to avoid entering intomajor contracts or undertakings. In addition, project approvals by ministers are to bedeferred until after the result of the election is known, unless the Opposition concurs priorto the decision being taken. The conventions of other states contain similar provisions. Nocaretaker conventions provide a definition of what constitutes a major contract orundertaking.

The Western Australian conventions are primarily concerned with preventing theimplementation of new policies in the lead-up to the general election. They do not prohibitthe announcement of policies prior to the election. Under the Commonwealth caretakerconventions, all decisions concerning significant initiatives should be announced prior tothe commencement of the pre-election period.

The conventions allow the cabinet to continue meeting, provided that it considers onlynecessary and routine matters of government administration. The Commonwealthconventions contain similar provisions, while guidelines in Queensland and SouthAustralia state that it is usual for cabinet to meet shortly before the dissolution ofparliament to clear outstanding business. The Northern Territory, on the other hand,prohibits cabinet from meeting during the caretaker period unless exceptionalcircumstances dictate otherwise.

The Western Australian caretaker conventions state that, as a rule, senior appointments tothe public service should be deferred until after the result of the election has beendeclared. Where the proper function of a department or agency requires a senior positionto be filled, it is to be done on an acting basis or on a short term contract. TheCommonwealth conventions add that, where a longer appointment or a fixed or minimumterm is necessary, consultation should take place with the relevant Oppositionspokesperson.

Extensive guidelines exist in the Western Australian conventions to cover consultationbetween the Opposition and the public service. Queensland has similarly explicitguidelines concerning consultation between the Opposition and the public service in its

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conventions. The conventions in New South Wales are more brief and have the samethrust.

Under the Western Australian caretaker conventions, ministers are advised to sign aminimum amount of correspondence and give CEOs greater control over the running oftheir departments. Departments are expected to prevent departmental officers frombecoming involved in election activities in their capacity as public sector employees.Commonwealth conventions are more specific, indicating that government officers shouldnot be asked to conduct election campaign activities or carry out political tasks; they alsoprohibit the direction of government resources and funds towards supporting any politicalparty. Departments are instructed not to take any action which might cause a minister tobe in breach of the conventions.

The caretaker conventions in Western Australia recommend that bills which have yet to bepassed by both houses of Parliament will lapse upon its dissolution. In Queensland andSouth Australia it is the practice for bills passed by parliament to be proclaimed prior tothe dissolution of parliament, but not during the caretaker period.




In his written submission, Mr Barry MacKinnon advocated a broader interpretation of thecaretaker conventions based upon the general principles that underpin them:

... the question should not be what is a major initiative but what it commits irrevocably anew government to implement. This should not be interpreted to restrict the party ingovernment making election promises or policy statements through this period as theywill and should.

Mr Bates, at a public seminar in Moora, argued that the caretaker conventions could beineffective in managing government administration during the pre-election period:

... you can put all the guidelines you like in to effect it and effectively what they ... aregoing to do when government is dissolved, they will do it the month before it’sdissolved. So, in effect, you will end up ... no better off.

At a Perth public seminar, Mr Barry MacKinnon discussed the role that Cabinet shouldplay during the caretaker period:

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I think Cabinet of course has got to be allowed to continue to meet for administrativeissues and for a crisis that might arise, but my experience in election campaigns is thatyou haven’t got time to have a Cabinet meeting. The last thing you want to do is go backand talk to your colleagues about issues. You want to be out in the electoratecampaigning most of the time. That is where people will be.

At the Moora Public Seminar, Mr Bates discussed the rules for access to the public serviceby members of non-government parties:

So far as opposition access to the public service, as soon as parliament is dissolved thatshould be granted which would eliminate, once the new party is elected, “We didn’trealise the state of the economy was so bad,” which is what they say every time there’san election and a new party comes into power. “We didn’t realise, we didn’t know it wasas bad as it was. All the election promises we made we can’t fund.”

In its written submission, the National Council of Women of Western Australia discussedthe expiry of employment contracts during the caretaker period:

The contract should be extended for the period of the caretaker government. This allowsfor smooth departmental function. An extension of three months is acceptable. Thisallows the incoming government to either terminate or renew the contract.

10.2.4.4 Analysis

As in all other states, the caretaker conventions in Western Australia contain no definitionof what constitutes a major new policy initiative. Although such a definition could beuseful, it may fail to cover all contingencies. Since it is generally agreed that anythingwhich may be politically contentious is unacceptable under the caretaker conventions, theCommission does not consider it necessary to define ‘major new policy initiative’ in theconventions.

The Western Australian guidelines make no mention of the timing of the announcement ofnew decisions because the conventions are concerned with the implementation ofinitiatives, not their announcement. It is unnecessary to add a guideline instructing thegovernment not to announce the future implementation of a new program during thecaretaker period. Any policy announcement which is not to be implemented until after theelection is merely an election promise and not within the scope of the caretakerconventions. The guidelines are not intended to restrict the electoral activities of politicalparties.

The administration of government business, an emergency, or even the determination ofwhether an action is permissible under the conventions, may require cabinet to meetfollowing the dissolution of Parliament. The conventions simply specify that cabinetshould consider only necessary and routine matters of government administration.Permitting cabinet to meet during the caretaker period is unlikely to result in breaches of

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the conventions because the members of cabinet, as elected Members of Parliament, areabout to face the judgement of the electorate.

Western Australia and South Australia are the only states with comprehensive guidelinescovering the appointment and promotion of staff. A three-point approach (deferral,extending a contract for a maximum of three months, or filling the position on an actingbasis) is appropriate in that it allows an incumbent government to fulfil its obligationswhile allowing the incoming government to review any decisions. Requiring consultationwith the Opposition when a particularly urgent position needs to be filled is unnecessary,because filling positions on an acting or short-term basis is acceptable.

The Western Australian caretaker conventions also allow Opposition spokespersons tohave access to relevant public servants to smooth the way for a potential change ingovernment. It is important that the consultation procedures are independent ofgovernment control as well as maintaining the independence of the public service. Thepresent guidelines are adequate in both respects. The requirement for permission to besought from the premier before any meetings take place, the placing of strict limits uponthe content of discussions, the presence of the departmental CEO, and frequent reportingto the appropriate minister prevents breaches on either side.

Under the conventions ministers devolve greater responsibility for the day to day runningof departments to chief executive officers to diminish opportunities for partisan activityduring the pre-election period. There are no guidelines covering the tasks and functionsthat can be assigned to or voluntarily carried out by public servants. Provided thatdepartmental resources are not used, officers are, as usual, left free to use theirnon-working time as they see fit.

The question of outstanding legislation is addressed sufficiently in the Western Australiancaretaker conventions. All legislation yet to be passed, lapses. It is unnecessary to add aguideline preventing proclamation of legislation. If proclamation should occur, there islikely to be sufficient publicity to permit the electorate to judge the government’s actionsthrough the ballot box.

The caretaker conventions in Western Australia fulfil their purpose. Any amendmentscould be made as part of the regular process of parliamentary review recommended earlier(Section 10.2.2.5).


1. The caretaker conventions in Western Australia, as set out inAppendix 3A, should remain unless amended by the parliamentaryreview process recommended in Recommendation 10.2.2.5.

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10.2.5 THE FINAL ARBITER ON GOVERNMENT ACTIVITIES


Most caretaker conventions in Australia establish a line of internal accountability forgovernment during the pre-election period. The conventions explicitly declare that thepremier or chief minister shall make the final decision on whether the activities of thegovernment, a minister, or a public servant are acceptable. Whenever ministers are indoubt, they are required to raise the matter with the premier or chief minister. Analternative is to have a body such as the judiciary explicitly responsible for making finaldeterminations.

The Western Australian caretaker conventions do not specify a final arbiter on the actionsof government. The conventions require all ministers and chief executive officers to keeptheir activities within the spirit of the conventions.




In his written submission, Mr Andrew Murray of the Australian Democrats discussed thenature of accountability:

The [Commission on Government] Discussion Paper [No. 11] focuses on theunenforceability of the conventions. This is not the same as accountability. Theconventions are a code of conduct. Accountability not only has moral and customaryforce, but generally has a status and a basis in law.

At a Perth public hearing he agreed that the caretaker conventions had generally beensuccessfully adhered to:

We have felt that by and large most areas covered by the conventions have been dealtwith pretty honourably by the governments in power.

Mr Barry MacKinnon agreed at a Perth public seminar:

... the parties in this state – and, I think, across Australia, by and large have played thegame broadly in line with the unwritten code or convention that is in place or was inplace at that time.

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When discussing the operation of the conventions at previous elections, at a Perth publichearing, Mr Mal Wauchope, Chief Executive of the Office of State Administration, alsoagreed:

I have been involved in the Premier’s Department since 1983 and I have been throughthree general elections. I have not detected any problems with governments observingcaretaker conventions during that time.

The Auditor General, Mr Des Pearson, was not in favour of his office monitoring breachesof the conventions. In his written submission he stated that:

Because I do not consider the breaches of the conventions would usually be an issue offinancial accountability or program efficiency or effectiveness, I would havereservations about my Office having responsibility for handling breaches ... Because thebreaches would necessarily take place during an election period, they would perhaps bebetter handled by the Electoral Commissioner. However, my Office would be availablefor consultation to provide advice as needed to ensure that government accountability ismaintained during the caretaker period.

An alternative approach might be to establish a panel consisting of selected statutoryofficials with wide experience to deal with breaches. Public exposure by the panel orother body responsible for investigating breaches of the conventions should be sufficientpenalty of itself.

Mr Andrew Murray, of the Australian Democrats, had a similar solution in his writtensubmission:

For caretaker conventions to be meaningful there has to be a referee ... The ElectoralCommissioner may be best adjudicating here, who may in turn need to consult with theAuditor General and the Public Sector Standards Commissioner.

10.2.5.4 Analysis

The Western Australian caretaker conventions do not explicitly provide for anysupervisory body to determine acceptable activities and to hold the governmentaccountable during the pre-election period. It is implicit in the conventions that it is thepremier who adopts the supervisory role. The adequacy of the current accountabilityarrangements is questioned by some, who argue there is a need to improve externalaccountability.

The appointment of an outside body or agency, such as the judiciary, the Auditor Generalor the Electoral Commissioner, to make determinations about acceptability is notappropriate. Without some legislation establishing the conventions it is difficult to seehow they could be tested or defended in a court. Moreover, as the caretaker conventionsdo not concern financial or program efficiency, they do not fall within the jurisdiction ofthe Auditor General. The Electoral Commissioner could be asked to determine what is

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acceptable under the caretaker conventions but the political and administrative matterscovered by the caretaker conventions are outside the domain of the Electoral Commission.For these reasons, we reject the possibility of using either the Auditor General or theElectoral Commissioner as the supervisory body during the caretaker period.

Ultimately, it should be the voters who pass judgement on the conduct of the governmentduring the caretaker period. If the Parliament is chosen by the electorate at large, and if itis to Parliament that the executive is responsible, then in the absence of Parliament itshould be the electorate which holds the government accountable. Accountability to theelectorate requires public awareness of the purpose and content of the caretakerconventions. Informing the public about the caretaker conventions would enable theelectorate to become the agent of accountability at the election because any breacheswould become important issues prior to the election.


1. No supervisory body should be appointed to oversee observance ofthe caretaker conventions.

10.2.6 PENALTIES


There are no penalties specified for breaches of the caretaker conventions in WesternAustralian, nor elsewhere in Australia or in other countries with a comparable system ofgovernment. Instead, ministers and chief executive officers are expected to keep theiractivities, and those of their departments, within the bounds dictated by the conventions.The guidelines rely greatly upon the honesty and goodwill of those involved. Sanctions forbreaches of the caretaker conventions can either be imposed by the premier, byParliament, or, providing the breach is detected and publicised prior to the election, by thepublic.



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At a Perth public hearing, Mr Mal Wauchope, Chief Executive of the Office of StateAdministration, discussed how the caretaker conventions were monitored for breaches atthe 1993 General Election:

... the Premier’s Department, which has responsibility for managing executive councilmatters, monitored matters going to Executive Council more closely than usual and wewere referring things back to departments where we felt that it was material that waseither on the border or had crossed the line of the conventions. I guess, particularly inrelation to appointments to public service positions and also to boards and committees,where it was deemed that there was a need to have an appointment made, either for legalor other reasons, we proposed to the agencies that in fact they look at making it for ashorter period of 3 to 6 months so that an incoming government wouldn’t be bound forany length of time by those appointments.

So there was a monitoring process in place, albeit it wasn’t institutionalised, but therewas a fair bit of cognisance of the fact that the conventions had been documented andthat there was a need to ensure that there was observance of those.

In his written submission, Mr Andrew Murray of the Australian Democrats, proposed aseries of penalties for breaches of the caretaker conventions:

The proper institution for dealing with breaches by members or political partiesrepresented in the house, is Parliament. Sanctions should extend in extreme cases torequiring the vacation of a seat.

Breaches by persons in the public sector have to be dealt with administratively, andshould extend in extreme cases as far as the loss of their position.

Mr Des Pearson, the Auditor General, agreed in his written submission:

The role of Chief Executive Officers of government agencies during an election periodwill presumably be specified by the Public Sector Standards Commission and beincluded in standard Chief Executive Officer performance agreements ... Any breach ofthe conventions by a Chief Executive Officer would then be a breach of his or herperformance agreement and could be handled by the Public Sector StandardsCommission.

Mr Barry MacKinnon discussed the goals of any accountability measures during thecaretaker period at a Perth public seminar:

You can’t suspend Government during an election period. However, stopping abuse ofthe position of Government is what we are trying to achieve ... Its my view that thepublic process of the election campaign will in itself highlight any problems ...

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He also offered a solution to breaches of the conventions by those in government:

... if a breach [is] found [in the caretaker conventions] then a public announcement[should] be made. The people voting in the election are the ultimate judges in thisprocess. What needs to happen is for these judges to be fully informed in making thisjudgement.

He discussed this idea still further:

If there are breaches of the convention I believe the people who are affected merelyshould have to complain to an independent authority. In this instance I believe thatshould be the Electoral Commissioner who should obviously then make a promptinquiry and report that particular issue to the people who are most concerned about thoseissues, which is the people, the people who have got to make a judgment about thegovernment of the day at the next election. Now, of course it will be difficult if thebreach is in the last couple of days of the election but normally the breaches that I amtalking about, I think, will be ahead of that time. Ultimately again, it is the people whoare going to decide the outcome and the people to whom you should be accountable inthis instance. What we need is a public informed of the issues and that is the best way, inmy opinion of informing them.

10.2.6.4 Analysis

Although penalties for breaches of the caretaker conventions can be imposed by theexecutive, it is unlikely that a leader of the government would be willing to impose publicsanctions during an election campaign. Parliament can penalise any member of thegovernment who acts outside the caretaker conventions, but there would be an inevitabledelay until Parliament resumes after the election.

A well-informed electorate is in the best position to penalise effectively a governmentoperating under non-legislative caretaker conventions. If the guidelines were made publicprior to the dissolution of Parliament (Section 10.2.2.5), and if any breaches werepromptly detected and publicised by the non-government parties, independents and themedia, the electorate would have the opportunity to pass judgement through the ballotbox. Effectiveness would depend upon public awareness of the conventions.


1. The sanction of public opinion and the ballot box should remain asthe incentive to observe the caretaker conventions.

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Chapter 11Regulating Government Advertising and Travel

CHAPTER 11 REGULATING GOVERNMENTADVERTISING AND TRAVEL

11.1 INTRODUCTION

Governments have a right and an obligation to inform the public about many matters ofgovernment administration and public policy, and to communicate information for thecommunity’s benefit. Advertising is an important means of providing information. Asgovernment advertising is paid for by public funds, it should be free of partisan influenceand subject to stringent accountability procedures.

Regulations are imposed on government advertising in an attempt to ensure financial andmoral probity in the use of public funds. A major problem with regulations is the difficultyof distinguishing legitimate information from partisan propaganda.

Travel by Members of Parliament and public servants is an essential part of government inWestern Australia. It exposes officials to community opinion throughout the State andenables them to become informed on a wide range of issues. Travel is, in addition, aregular part of the duties of Members of Parliament. Publicly funded travel is vital for thesuccessful servicing of country electorates.

Specified Matter 23 requires the Commission on Government to examine:

The desirability of regulating:

(a) government advertising during an election period; and(b) travel by persons in or connected with the government during an election period.

In the course of developing a discussion paper it became clear that the potential for abuseof government advertising and travel exists not only during election periods, but at anytime. Accordingly, the Commission resolved (Resolution No. 3/30:95):

That in dealing with Specified Matter 23, the Commission will, pursuant to Section 5(c)of the Commission on Government Act 1994, extend its inquiry to matters beyond theconfines of an electoral period.

This report concentrates on travel by Members of Parliament, ministers and otherparliamentary office holders, public servants, the spouses and partners of Members ofParliament and former members of Parliament.

The impetus for investigating the regulation of government advertising and traveloriginated in the findings of the Royal Commission into Commercial Activities of

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Government and Other Matters (WA Royal Commission). The WA Royal Commissionrecognised the potential for corrupt, illegal and improper conduct in both areas. Concernwas expressed about the possibility of public funds being used for partisan purposes:

... government and its agencies have the full resources of the State at their disposal.These should be used only for proper governmental purposes and in the public interest(WA Royal Commission, 1992: II 5-21).

11.2 THE DESIRABILITY OF REGULATING GOVERNMENTADVERTISING


Advertising by governments in Australia is regulated in a variety of ways: throughlegislation, government guidelines and private industry bodies.

The Commonwealth Parliament has been examining proposed legislation concerning truthin government advertising. South Australia has amended its Electoral Act 1985 to prohibitthe inclusion in election advertising of untrue statements. Two bills have been introducedinto the New South Wales Parliament in the last three years concerning the regulation ofgovernment advertising: the New South Wales Government Publicity Control Bill 1992was reintroduced in 1995 with the same title.

The Queensland government has been reviewing an extensive set of guidelines forregulating government advertising which were proposed in 1992 by the QueenslandElectoral and Administrative Review Commission (EARC).

In Western Australia, the Electoral Amendment (Political Finance) Act 1992 containsprovisions which ban most government advertising during an election period. The Act hasyet to be proclaimed following advice from the Crown Solicitor that the legislation woulddisrupt the dissemination of essential government information. The Western Australiancaretaker conventions include instructions about the regulation of government advertisingduring an election period. The Western Australian Government Advertising Services,located in the Ministry of the Premier and Cabinet, has issued a set of procedures forgovernment advertising to enhance cost effectiveness.

The Advertising Standards Council (ASC) is an industry-funded body which hearscomplaints in every State and Territory, from any source, about the content ofadvertisements. It judges advertisements against the Advertising Code of Ethics producedby the Media Council of Australia (MCA). The ASC has dealt with complaints concerningpolitical advertisements, including government-funded advertisements.

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Government advertising is also covered by a series of industry codes administered by theASC, including codes for advertising of alcoholic beverages, therapeutic goods, cigarettesand slimming products.

The Federation of Australian Commercial Television Stations (FACTS) and theFederation of Australian Radio Broadcasters (FARB) have their own regulations whichapply to all advertisers, private and government alike.

The Australian Broadcasting Authority is a statutory body established under theBroadcasting Services Act 1992 as the regulator to hear complaints about advertisements.It is charged with ensuring broadcasters comply with codes of practice and programstandards. These include the Commercial Television Industry Codes of Practice and theAdvertising Code of Ethics used by the ASC.


The Electoral Amendment (Political Finance) Act 1992 contains provisions on theregulation of government advertising. The Act is yet to be proclaimed.


The Hon. Paul B. Toose, Chairman of the Advertising Standards Council recognised theright of governments to advertise:

... the public, I think, are entitled to know what government has done, what thelegislation is and, if necessary, an explanation of what it means.

This view was supported by Mr Barry MacKinnon, in his written submission, when hestated that: ‘government must have the capacity to advertise’.

In his written submission, Mr Andrew Murray of the Australian Democrats, supported thegovernment’s right to seek credit through advertisements but placed limits on thegovernment’s behaviour:

It is right and proper that the executive should ask for and be given, credit for policiesand performance which improve the public welfare. It is only blatant or misleadingelectioneering which is offensive.

Mr Murray identified opportunities for abuse:

It also has to be recognised that the executive of political parties in governmentsometimes use taxpayers monies to promote their achievements or policies in office,which although thinly disguised as government advertising, constitutes blatant partisanpolitical expenditure for their party’s re-election.

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At the Perth public seminar, Mr Barry MacKinnon said:

I believe what government has got to do is to advertise to inform rather than advertisefor propaganda purposes ...

Some submissions questioned the need for governments to advertise at all. In a writtensubmission Ms Helen Le Cordier argued that ‘it should be the constituents that come first’.At a Perth public seminar, Mr K. Bush asked:

Why should it be necessary for a government or indeed a political party to have politicaladvertising at all? Their position either in government or in opposition should beself-evident over the period of the parliament ...

Most submissions supported regulation of government advertising to prevent abuse. TheAuditor General Mr Des Pearson, in a written submission, suggested that:

... government advertising and travel involves the use of public funds, thereforeregulation of how such funds should be used will assist in ensuring accountability for theexpenditure.

The Advertising Federation of Australia supported regulation of government advertising ina written submission:

It is important that government advertising be regulated and conforms with the abovecodes and guidelines [those administered by the Advertising Standards Council] toensure uniformity in standards across all advertising both for the private and publicsectors.

The content and time frame of government advertising was also addressed by the AuditorGeneral:

The need for a distinction between information and political advertising is not confinedsolely to election periods and regulation about government advertising in general wouldensure public funds are not used for political advertising at any time.

Mr Barry MacKinnon concurred:

... [my] preference in this ... area would be for the regulation to apply to Governmentadvertising at any time not just in the lead up to elections.

At the Moora public seminar, Mr Bates highlighted one of the difficulties in regulatinggovernment advertising:

... what’s informative to this person is misleading to the next person, so it’s very difficultto police that sort of thing.

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In a written submission, Lawrence and Howell, Barristers and Solicitors, spoke out againstregulation of government advertising:

Regulations always have problems especially when people have good reasons to attemptto avoid them. Interpretation is difficult and to close all loop holes regulations oftenbecome incredibly complex. I believe that any incentive based system would always bemore effective than a purely regulatory system.

At the Albany public seminar, Mr Bell said:

When the government in power at the time uses persuasive or informative typeadvertising prior to an election, it gives them an unfair advantage coming up into anelection and I think maybe there should be a time period where there shouldn’t be anyadvertising.

11.2.4 Analysis

The Commission believes in regulation of government advertising to ensure proper use ofpublic funds and eliminate opportunities for its partisan political use. It is possible tospecify a scheme which will ensure accountability and eliminate opportunities forimproper use of public funds, without unduly restricting the advertising process.

Regulation should not be in legislation or formal regulations. Controls exercised over themedia through determinations of the Advertising Standards Council are a suitable meansof regulating government advertising. In addition, draft guidelines specifying proprietyand content of advertisements for government departments are included at Appendix 3B.The guidelines include a declaration of compliance to be signed by the AccountableOfficer placing advertisements in excess of $2,000 which provides a means ofaccountability (see Section 11.5).


1. There should be no legislation or formal regulations for governmentadvertising in Western Australia.

2. The Western Australian Government should follow the AdvertisingStandards Council’s Advertising Code of Ethics for advertisingcontent at all times.

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11.3 DEFINING GOVERNMENT ADVERTISING ACTIVITIES


If there is to be regulation there must be a clear understanding of the extent of governmentinformation and advertising activities. A great variety of functions and processes areinvolved in producing government advertisements. The Commonwealth Office ofGovernment Information and Advertising (OGIA) (1995: 1) defines governmentinformation activities, including advertisements, as:

... those activities involved in the production and dissemination of material to the publicabout government programs, policies and matters which affect their benefits, rights andobligations. They would include the production of:

• press, radio, cinema and television advertisements,• audio-visual material,• printed material (pamphlets, explanatory booklets, etc)

and the use of:

• public relations consultants,• market research agencies,• advertising agencies,• other specialist consultants

in the development of such material.

A report on government advertising by the New South Wales Auditor General inNovember 1995 (Audit Office (NSW), 1995) supported the OGIA definition.

The New Zealand Government Guidelines for Government Advertising define governmentadvertising as:

... any process for which payment is made from public funds for the purpose ofpublicising any product, service or activity provided at public expense by theGovernment (EARC, 1992, Appendix G).

Section four of the New South Wales Government Publicity Control Bill 1992 definedgovernment publicity as:

... any advertisement, promotional campaign, public relations campaign, announcementor means of publicising any governmental activities, programs or initiatives which isfunded by public money ...

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The WA Royal Commission, which recommended regular reporting of amounts spent onthe provision of information, took a broad view of government information andadvertising activities. It recommended that:

... all government agencies, instrumentalities and corporations disclose all expenditureon advertising agencies, market research organisations, polling organisations, direct mailorganisations, direct postal or other direct communications to electors or tohouseholders, public relations organisations and media advertising organisations(1992: II 5-21).


The Electoral Amendment (Political Finance) Act 1992 contains provisions aboutgovernment advertising. The Act is yet to be proclaimed.


The Hon. Paul B. Toose, Chairman of the Advertising Standards Council, provided anexplanation of government advertising:

Government advertising I think should be really for the dissemination of ... informationas to what legislation has been passed, if necessary explaining that legislation.

He also identified a form of advertising which should not be publicly funded:

... any advocacy advertising – in other words, stressing the advantages of one politicalparty over the other is not something which should be at the expense of the public purse.

In a written submission Mr J.E. Knox suggested:

... a definition is needed of what can be funded from revenue; community serviceannouncements are an example. Everything else has to be funded from party sources.

Mr Allan Mottram identified the need for a comprehensive definition of governmentadvertising:

... government information services and advertisements should not be allowed topromote the political status of the government or ministers at any time so there wouldhave to be a set of clear definitions stated.

At a Perth public hearing, Mr Barry MacKinnon suggested that polling should be includedin any definition of government advertising:

The concern I have is the potential for [polling] to be abused by the party in tagging orusing the information separately or the people who are conducting the polling [use theinformation] for their own advantage at the taxpayers’ expense.

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In a written submission, Mr J.N. Anderson suggested an additional explanation beincluded detailing:

... for what purposes the advertising is to be used and how these purposes mesh in withthe specific policy programs.

11.3.4 Analysis

Many agencies are involved in the production of advertisements, ranging from marketresearchers and specialist consultants to advertising agencies. Some would argue that it isonly the advertisement itself which might be considered misleading or partisan, not theprocesses undertaken in creating it. Others would say that unless regulations apply to allaspects of government information and advertising activities, it will not be possible toensure complete accountability and eliminate loopholes.

All processes involved in producing any government advertisement should be subject toregulation and meet standards of public accountability. It is important that the conduct ofpolls not be exempt from regulation because information collected in the polling processmay also have a political component.


1. Scrutiny and monitoring should apply to all government advertisingand information activities.

11.4 REGULATION THROUGH THE ADVERTISING INDUSTRY


The advertising industry body which hears complaints concerning government and privateindustry advertisements is the Advertising Standards Council (ASC). It has the power to‘receive complaints about advertisements published and/or broadcast in Australia and shalladjudicate on those complaints and shall inform the Media Council of Australia of theresults of its adjudications’ (ASC Charter: 6).

The ASC’s policy is to allow wide latitude to party political promotion in advertising. TheASC will only intervene if an advertisement unduly plays on fear or there is a clearmisstatement of fact which makes the advertisement false and misleading. When making adetermination on political advertisements the ASC will not consider complaints aboutpossible future behaviour and activities of political parties.

The Media Council of Australia (MCA) enforces determinations of the ASC on itsmembers. The ASC relies on the agreement of the MCA to enforce its decisions. The ASC

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has heard complaints about political advertisements throughout Australia; where thedetermination is in favour of the complainant the advertisements have been removed fromthe media.

The Advertising Code of Ethics used by the ASC is authorised and monitored under theTrade Practices Act 1974.


The Electoral Amendment (Political Finance) Act 1992 makes no recommendationsregarding private industry regulation of government advertising.


In a written submission Mr Barry MacKinnon argued there was a need for equal standardsbetween government and non-government advertising:

... government advertising should be required to meet the same ethical standards of thenon-government sector.

At a Perth public hearing, the Hon. Paul B. Toose, Chairman of the ASC, supported MrMacKinnon’s view:

... whether it is an advertisement for a car or for a political purpose and we have, in fact,in the past, upheld complaints against political advertising which is false and misleading.

The Hon. Paul B. Toose provided an example of a recent determination by the ASC ongovernment advertising:

... recently there were some Australian Tax Office advertisements which wronglyinterpreted some of our recent legislation on superannuation and we upheld that as falseand misleading and so that Tax Office advertisement could not be shown again.

Mr Colin Harcourt, Executive Director of the ASC, explained the extent of theirjurisdiction:

I think we need to remind you, of course, that we aren’t a censor or a monitor ofadvertising so the issue of whether a government publicity campaign is misleading oruntruthful will only be determined by us following receipt of a formal complaint.

11.4.4 Analysis

The average determination of the ASC takes 26 days (ASC, 1994: 5), which might beconsidered too long a delay in the case of election advertisements. However, the ASC hasdemonstrated that it can act quickly when necessary. At the 1993 Federal Election it heardand determined a complaint about political advertising very rapidly (ASC, 1993: 9). The

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advertisement was suspended while the matter was being decided. Establishing agovernment body to regulate government advertising would be a duplication of existingresources and may lead to the application of double standards. The ASC, with the supportof the Media Council of Australia, offers the public an effective avenue for pursuingcomplaints about government advertisements.


1. The Advertising Standards Council should remain as an independentarbiter of complaints concerning advertisements, both political andnon-political.

2. The role of the Advertising Standards Council should be activelypromoted by the government to increase public awareness of theoptions available for complaints about political advertising.

11.5 REGULATION THROUGH GUIDELINES


Regulation of government advertising through guidelines exists in many jurisdictions inAustralia and overseas. In April 1994, the Parliamentary Committee for Electoral andAdministrative Review (PCEAR) outlined a set of guidelines for Queensland governmentadvertising. The proposed guidelines establish the right of the government to ‘use publicfunds for publicity and advertising to explain policies and programs ...’ (PCEAR, 1994,Appendix D1). They emphasise that all government publicity and advertising should befair and non-party political.

The guidelines proposed for Queensland are largely based on the New Zealand model. TheNew Zealand guidelines for government advertising and publicity set out three broadcriteria for assessing government departmental publicity. The guidelines require alladvertisements to be: accurate, factual and truthful; fair, honest and impartial; and lawfuland proper (New Zealand Guidelines, quoted in EARC, 1992, Appendix G).

In Western Australia, guidelines have been issued through a Circular to Ministers 1/93(see Appendix 3A). The circular instructed ministers and their heads of departments touphold the spirit of the unproclaimed Electoral Amendment (Political Finance) Act 1992,which requires government advertising campaigns to be suspended during electionperiods.

The Commonwealth Department of Administrative Services administers the Office ofGovernment Information and Advertising (OGIA). The OGIA has established guidelines

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which define information activities and stress their value in achieving public awareness ofgovernment policies and programs. The guidelines are enforced by a committee of sixministers. Guideline 2.6 states that all advertising ‘should be as impartial and complete aspracticable’ (OGIA, 1995: 2). The guidelines make no distinction between election andnon-election periods.

The British Central Government Conventions on Publicity and Advertising establish fourbasic tests for government publicity:

• the subject matter must be relevant to government responsibilities;

• content, tone and presentation should not be ‘party political’;

• distribution of unsolicited material should be carefully controlled; and

• costs should be justifiable.

The British Conventions apply to both campaign and non-campaign (public notice type)publicity.


The Western Australian Circular to Ministers No. 1/93 detailed guidelines for governmentadvertising during election periods. Western Australian Circular to Ministers No. 2/93included those guidelines in caretaker conventions.


Mr Barry MacKinnon supported the caretaker conventions on government advertising as:

... a step in the right direction [but] there are some areas not covered like public relationsconsultants and market research agencies.

Mr Andrew Murray of the Australian Democrats conceded that there was a place forguidelines but reinforced his preference for legislation on the issue, suggesting that‘guidelines should be an adjunct to legislation, not a substitute’.

11.5.4 Analysis

Regulation through guidelines may be more flexible than legislation. Guidelines can createa system of self regulation for departments and agencies that avoids the need for a separategovernment body to ensure compliance. Comprehensive guidelines, in conjunction withthe Advertising Standards Council complaints procedure, would be an effective method ofregulating government advertising.

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The Commission on Government has developed a draft set of guidelines for theself-regulation of government advertising (Appendix 3B). The requirement of adeclaration of compliance for advertisements costing $2,000 or more provides anaccountability point for the Auditor General, the Opposition, the media and the public.The guidelines should be distributed to all chief executive officers of governmentdepartments and agencies, and published in the Government Gazette.


1. Guidelines, as suggested in Appendix 3B, should be adopted for useby all government departments and agencies when designingadvertisements.

11.6 REGULATION THROUGH LEGISLATION


Regulation through legislation exists, or is proposed, in other Australian states. In NewSouth Wales, a private member’s Bill to establish comprehensive regulation ofgovernment advertising has been introduced into Parliament. The Government PublicityControl Bill 1995 seeks to establish a committee to scrutinise government advertising atall times. The Bill aims:

(a) to ensure that, as far as possible, public money is not expended on governmentpublicity for a partisan political purpose, and

(b) to constitute a committee to scrutinise government publicity that appears to thecommittee to have the capacity or be likely to have the capacity, in whole or inpart, to be used for that purpose.

The Bill proposes a committee to consist of the Auditor General, the Ombudsman and apart time member selected from a list prepared by the Advertising Standards Council andappointed by the premier.

The proposed committee would hear complaints from the public about governmentpublicity for political purposes, defined as:

... government publicity that promotes governmental activities, programs or initiatives insuch a partisan or biased manner that it has the capacity or is likely to have the capacity,in whole or in part, to influence public support for a political party, a candidate forelection or a member of a House of Parliament.

In reaching its decisions the committee would have recourse to a set of guidelines set outin a schedule to the Bill. The guidelines centre on three points:

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1. Government publicity should be accurate, factual and truthful.2. Government publicity should be fair, honest and impartial.3. Government publicity should be lawful and proper.

The regulatory authority for the radio and television broadcasting industry, the AustralianBroadcasting Authority (ABA), was established by the Broadcasting Services Act 1992.Section 147 of the Act provides that complaints can be made to the ABA if a personbelieves another person, providing a broadcasting service, has breached a condition of alicence. The ABA is required to monitor broadcasters’ compliance with codes of practiceand any relevant program standards and investigate possible breaches of any relevantcodes or the provisions of the Act. The codes of practice include the Advertising StandardsCouncil’s Advertising Code of Ethics.

South Australia has legislative regulation for government advertising during electionperiods. It concerns the prevention of inaccurate and misleading statements in electionadvertisements. The legislation is discussed in more detail in Section 11.7.

In 1995, the Commonwealth Parliament was considering amendments to theCommonwealth Electoral Act 1918 that included truth in advertising provisions similar tothose in the South Australian Electoral Act 1985. The provisions would only apply duringan election period. With the dissolution of Parliament for the 1996 general election, theamendments lapsed.

In Western Australia, the Electoral Amendment (Political Finance) Act 1992 wouldprohibit government publications during election periods. Section 5 of the Act states thatduring a period commencing three years and six months from the date of a general electionand ending at 6 p.m. on polling day:

191B(1) ... an officer of a public agency shall not –(a) print, publish or distribute any matter; or(b) cause, permit or authorize any matter to be printed, published or distributed,

for or on behalf of the government or a government authority.

Later sections of the Act provide a list of exemptions, including natural disaster noticesand advertisements for vacancies in public offices.

The Act remains unproclaimed following advice from the Crown Solicitor that sections ofthe Act dealing with government advertising and publications may prohibit governmentpublications relating to purely administrative matters.


The Electoral Amendment (Political Finance) Act 1992 contains provisions on theregulation of government advertising. The Act is yet to be proclaimed.

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Mr Andrew Murray of the Australian Democrats urged legislative regulation:

Regulation does not mean prohibition – it means preventing partisan and subjectiveprivate political interest being pursued at public cost. It also means preventing amonopoly of views from being presented. Other political organisations cannot afford tocompete with government advertising ... Objective and impartial regulation would in noway breach the right to freedom of speech. In fact it would enhance it by limiting theopportunity for taxpayer funded propaganda to be used in attempts to distort voterjudgment.

At the Perth public seminar Mr Barry MacKinnon said:

Whilst I’m not one that wants to see legislation, I think it’s probably the only way youare going to ensure that that [regulation] occurs ...

Mr MacKinnon suggested a suitable body established by legislation which would monitorgovernment advertising. Such a body might include:

... an advertising industry nominee, a nominee of the government, a nominee of theopposition, the electoral commissioner and an independent and agreed chairperson ... [inaddition] its powers should be to highlight abuse and to report publicly on such abuse.

In a written submission from the Advertising Federation of Australia the case againstlegislative regulation was presented:

... legislative regulation is too restrictive and inflexible with regard to advertising. Itwould be inappropriate to use a definitive set of regulations embodied in legislation totry to regulate the qualitative values contained within advertising.

11.6.4 Analysis

The legality of regulating political advertising through legislation has been the subject ofcontroversy at both the Commonwealth and State level. The High Court in AustralianCapital Television Pty Ltd v Commonwealth of Australia (1992) 108 ALR 577: 177 CLR106 declared sections of the Political Broadcasts and Political Disclosures Act 1991unconstitutional as they were in breach of the implied constitutional right to freedom ofspeech. This Act was, in part, designed to restrict paid political advertising by individualsat election times. The decision may have implications for the NSW Government PublicityControl Bill 1995 and any similar legislation proposed in Western Australia.

It is possible to achieve successful regulation of government advertising withoutlegislation. A regulatory scheme that combines government guidelines and the AdvertisingStandards Council public complaints procedure would be sufficient.

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1. No additional legislation should be introduced to regulategovernment advertising in Western Australia.

11.7 TRUTH IN ADVERTISING


The concept of truth in advertising is expressed in s.113 of the South Australian ElectoralAct 1985:

(1) Where –

(a) an electoral advertisement contains a statement purporting to be a statementof fact; and

(b) the statement is inaccurate and misleading to a material extent,

a person who authorized, caused or permitted the publication of the advertisementshall be guilty of an offence.

Section 113 defines an electoral advertisement as an advertisement containing electoralmatter. Electoral matter is ‘matter calculated to affect the result of an election’.The penalty for contravening s.113 is $1,000 for an individual or $10,000 for a bodycorporate. The defendant is excused if he or she took no part in determining the contentsof the advertisement and could not reasonably be expected to have known the statementwas inaccurate or misleading. Section 113 applies only to statements made during electionperiods and only to advertisements. Speeches and other forms of electioneering are notcovered by the provision.

The Full Court of the South Australian Supreme Court has judged that s.113 of the SouthAustralian Electoral Act 1985 does not conflict with the implied rights of free speech onpolitical matters identified in the Commonwealth Constitution.

The South Australian provisions were included in a proposed amendment to s.329 of theCommonwealth Electoral Act 1918:

(2) A person must not, during the relevant period in relation to an election under thisAct, authorise the printing, publishing or distribution of any electoral advertisementcontaining a statement:

(a) that is untrue; and

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(b) that is, or is likely to be, misleading or deceptive.

The amending legislation lapsed with the dissolution of the Parliament for the 1996general election.


The Electoral Amendment (Political Finance) Act 1992 contains no provisions for truth inpolitical advertising.


Mr Andrew Murray of the Australian Democrats supported truth in advertising legislationand advocated legislation presented to the Senate by the Democrats and the Coalition(Section 11.7.1), suggesting ‘its adoption in WA would be a great advance in politicalstandards’.

In a written submission, Mr J.E. Knox commented on one of the major problems with truthin advertising legislation:

Any attempt to control truth in advertising would, I suggest, founder on the difficulty ofdefining what is true and what is not when it comes to politically inspired opinions!

Mr Barry MacKinnon identified the importance of truth in government advertising butrecognised that such a standard also existed in the private sector:

... truth in government advertising should be a requirement at all times. In principleagain this standard should be the same that applies to the non-government sector.

11.7.4 Analysis

The South Australian experience of prosecutions arising from truth in advertisinglegislation demonstrates that the legislative approach can work under specificcircumstances. In the case of South Australia, the legislation is limited to election periodsand excludes election material other than advertisements.

The Advertising Standards Council (ASC) hears complaints about truth in advertising. TheASC’s Advertising Code of Ethics states that: ‘Advertisements shall be truthful and shallnot be misleading or deceptive’. The ASC is the appropriate body to determine issues oftruth in government advertising. Truth in advertising is also dealt with in theCommission’s draft guidelines (Appendix 3B).

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1. The Advertising Standards Council should determine issues of truthin government advertising.

11.8 REGULATING GOVERNMENT TRAVEL


Travel is a necessary part of government. Members of Parliament travel to serve the needsof their electorate, to gain a better understanding of the operation of government in otherjurisdictions, to promote the state and to attend official functions as representatives of thepeople of Western Australia. Public servants undertake travel as part of their dutiesconnected with government administration.

If travel is undertaken for personal benefit rather than community benefit, it is an improperuse of public funds. Travel before and during an election period by government officialsmay involve the use of government resources or public funds for an element of partyself-promotion and electoral gain. As with government advertising, it is difficult todistinguish between travel for solely official duties and travel for partisan advantage.

The Electoral Amendment (Political Finance) Act 1992 contains provisions which prohibitunnecessary travel by persons in or connected with the government during an electionperiod. This Act is yet to be proclaimed but provisions were included in caretakerconventions introduced in 1993. These suspend imprest entitlements and limit ministerialtravel during election periods (Appendix 3A).

In addition to controls on the timing and purpose of government travel, there is extensiveadministrative regulation of travel. Administrative regulation is required to meetaccounting standards and to prevent improper use of funds.


The Electoral Amendment (Political Finance) Act 1992 has provisions regulatinggovernment travel during an election period. This Act is yet to be proclaimed.


In a written submission, the National Council of Women of Western Australia stated that‘Members of Parliament and Ministers are not permitted to use government funded faresduring election campaigns [as it] provides an unfair financial advantage’.

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Mr J.E. Knox said in his written submission that:

A pre-election period is no different from any other period. Those officials and Ministersengaged on legitimate government business or representing the government officiallyshould travel. If they spend time electioneering, the governing Party should pay apro-rata proportion of accommodation, meal and travel costs ...

At the Broome public seminar, Mr Power supported government funded travel forMembers of Parliament:

They have got to travel, whether it’s ministers or members returning to their electorate.They have got to travel.

Mr Mal Wauchope, Chief Executive of the Office of State Administration, suggested theevidence of misuse or abuse of travel entitlements by Members of Parliament wasnegligible:

I believe travel for members of parliament is essential to them actually being aneffective Member of Parliament. I don’t think they could be without that and, as I said,with something like 2500 to 3000 transactions over the years there have only been fourindividual cases, four counts of fraud detected.

At the Perth public seminar, Mr Barry MacKinnon also believed the actual abuse of travelentitlements for Members of Parliament to be minimal:

... travel by and large for most politicians that I have seen, whilst there is some abuse, isuseful, and certainly I found it to be useful, and the expenditure really is not a great dealin the overall way of things and really is not, I don’t believe, leading to any corruptactivities ...

Appearing at a Perth public hearing, Mr Bruce Collier, Chairman of the Salaries andAllowances Tribunal, speaking in a personal capacity, said:

... despite what I said earlier about the faith that the electors have in the personconcerned who has been elected, I think they would also like to see some check andbalance on the travel that’s conducted.

In his written submission, Mr Barry MacKinnon commented on the level of regulation:

I don’t want to limit genuine travel. I think it is important in terms of a State certainlylike WA and learning from others as to what to do, as long as there is properaccountability and disclosure ensured and there is now.

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He supported the present system of regulation:

I think remote area politicians have got to be able to have freedom to travel to representtheir electorate and I think the rules that are in place work well and should continue. Idon’t see that there is any problem.

At a Perth public hearing, the Auditor General, Mr Des Pearson said from an auditingperspective:

... it comes back to the tenets of auditing and internal control systems. The clearer theauthority and the less the number of sources of funds and authority, the more assuranceone can give.

He later reiterated this point:

Again, I’m coming from an accountability perspective, that the more transparent it is andthe more clear and explicit the approval process and the source of funds are, the lessscope there is for either intentional abuse or accidental abuse.

11.8.4 Analysis

The present regulation of government travel requires administration by Parliament and thepublic service which comprises a complex arrangement of procedures which we considernecessary to ensure accountability in the expenditure of public funds. Caretakerconventions adopted in 1993 largely control the potential for travel to be used for purelypolitical purposes during the pre-election period.


1. Travel by persons in or connected with the government shouldcontinue to be monitored and reported.

2. The existing caretaker conventions concerning government travelduring election periods should continue to apply.

11.9 TRAVEL BY MEMBERS OF PARLIAMENT


Members of Parliament must travel to perform their official duties properly. There arethree main sources of travel funds available to them (Figure 11.1 and Appendix 3C).

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Firstly, funds are available from the Budget for unlimited travel between a member’selectorate and Parliament and within the electorate. This only applies to electoratesserviced by commercial, scheduled air services. This is administered by the Ministry of thePremier and Cabinet. Accounting practices provide regulation. Details are not madepublic.

Secondly, the Imprest account supplies funds specifically for interstate and overseas travelby members and their spouses on parliamentary or electorate business. The original intentof the Imprest account was for members to undertake study tours overseas and interstate.The Imprest account is a fixed amount determined by the Treasurer under s.11A of theSalaries and Allowances Act 1975 and administered by the Ministry of the Premier andCabinet. The amount per member for the term of the 34th Parliament was $15,691. TheImprest amount is cumulative for the life of two parliaments. Imprest travel rules requirethat the purpose ‘must be related to the legitimate parliamentary and/or electorateresponsibilities of the member and is not to be used for private reasons or reasonsassociated with commercial or business purposes’. The Premier approves all requests foroverseas travel. Domestic travel is approved by the Chief Executive, Office of StateAdministration. Travel funded through the Imprest system is reported quarterly toParliament. Reports detail overseas and interstate travel by ministers, Members ofParliament and public servants.

Thirdly, members of parliamentary committees undertake travel. The cost is paid out ofParliament’s budget and is administered by the Presiding Officers of the two houses.

The Salaries and Allowances Tribunal determines the basic salaries and other entitlementsof Members of Parliament, which include allowances designed to cover or offset the costof accommodation and other travel expenses. Non-metropolitan Members of Parliamentreceive an allowance for travel expenses within their electorate. This entitlement isunlimited, except that after a specified number of nights (which varies according to thesize of the electorate) claims for allowances must be supported by proof of expenditure.These allowances are administered by the Parliament.

Air charter travel expenses are met for those members in certain remote electorates notserviced by regular scheduled air services. The maximum amount available to members isdetermined by the Salaries and Allowances Tribunal. Air charter is monitored by theMinistry of the Premier and Cabinet through its accounting procedures. Members ofParliament also receive a motor vehicle fitted with private number plates for travel to,from and within their electorate.

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Figure11.1: Western Australia - Members of ParliamentSources of Travel Entitlements

Travel Entitlement

Administeredby

Aggregate Amount Determined by

MEMBER OF PARLIAMENT

ParliamentaryCommittee

Intrastate Traveland

AccommodationAllowance

Treasurer

ImprestParliament

to Electorateand Return

Individual Houses of Parliament

ParliamentMinistry of the

Premier and Cabinet

Ministry of the Premier and

Cabinet

Salaries and Allowances

TribunalTreasurer

Presiding Officers of Parliament

Members of Parliament may claim a combination of travel entitlements. A membertravelling from Parliament to and within their electorate, would have airfares paid by theMinistry of the Premier and Cabinet and a claim for travel and accommodation allowancepaid by Parliament.

Other states and territories have their own administration systems for travel entitlements.Many components are similar to those of Western Australia, but significant differencesinclude:

• Queensland provides a limited sum, like the Imprest amount, called the GeneralTravel Allocation which is used for air fares, taxis and hire cars within Australia,New Zealand and Papua New Guinea. Comprehensive reporting information isrequired before this entitlement will be paid.

• Queensland and Australian Capital Territory regulations provide a comprehensivedefinition of parliamentary business. When claiming entitlements members ofQueensland’s Legislative Assembly must justify expenditure within a parliamentary

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category. Victorian parliamentarians must, when required by the Presiding Officer,establish the funds were spent on parliamentary business.

• Queensland members submit a report six weeks after their return from overseasjourneys, setting out the objectives, officials visited, results and recommendationsarising from the trip. The Victorian Parliament has similar requirements. TheAustralian Capital Territory regulations require members to provide receipts forexpenses where advances are provided.

• The New South Wales Parliament provides no daily travelling allowance formembers on overseas or interstate trips unless they are travelling as part of aparliamentary committee. There is no allowance for intrastate travel unless memberselect to drive themselves or rent a car. If this occurs they may claim accommodationand meal expenses up to $108 per night. The total cost of the travel andaccommodation and meal expenses must not exceed the equivalent commercial costof the travel undertaken.


There are guidelines for government funded travel by Members of Parliament in WesternAustralia. The major changes since the WA Royal Commission are contained in Circularto Ministers Nos. 1/93 and 2/93 (Appendix 3A).


At the Perth public hearings Mr Mal Wauchope, Chief Executive of the Office of StateAdministration, supported the concept of Members of Parliament travelling at publicexpense and the present system of monitoring government travel:

We have members who don’t always live in their electorates for reason of practicalitiesand they have to get up and back to electorates more often than might otherwise be thecase. I don’t believe members travel unnecessarily. I believe they do it as part of theirrole.

In administering that part of the travel entitlements I have no real difficulty with the wayit is set up currently. I have not seen any abuse of the system.

Mr Wauchope cited four methods of public accountability:

... Members of Parliament themselves can ask questions in the house if they believethere were some issues that needed to be addressed, based on the report that is submittedin parliament, or members of the public could have their members of parliament askquestions if they felt concerned and thirdly, ... an equally powerful tool is the fact thatthe media go through that quarterly report fairly closely and if they have got somequestions it certainly gets some profile.

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The other check and balance or accountability issue is the fact that when members applyto travel using the Imprest account they are issued with a cheque from the departmentand it is deemed to be assessable income in their hands by the Australian Tax Office. Weissue group certificates. The member then has a third party to justify the travel to interms of not being subject to tax on that advance.

The Salaries and Allowances Tribunal (SAT) was generally favoured to be the singledetermining authority for travel entitlements.

In his written submission, Mr Barry MacKinnon supported the SAT:

I think it should be the Salaries and Allowances Tribunal. I can’t think of a better bodyand they should, therefore, do the entitlements.

Appearing in a personal capacity at a Perth public hearing, the Chairman of the SAT,Mr Bruce Collier, advocated one authority for determining entitlements and one foradministering the entitlements:

I’m not an advocate for it to come to the Salaries and Allowances Tribunal per se. Isimply say that I think that it would be a good idea if one body determined what sort offares should be allowed, what sort of accommodation should be allowed, thecircumstances in which they should be allowed, codify them, and then have themadministered somewhere else, perhaps at the Office of State Administration where it’sdone now ... if this was done by an independent body then there could be no argumentsabout favours and the body could ensure in any of its determinations that arrangementswere made administratively for proper oversight.

Mr Mal Wauchope, Chief Executive of the Office of State Administration, also expressedthis idea at a Perth public hearing:

... I think there needs to be a clear understanding that if there was such a single body fordetermination that it didn’t also become the body of administration, that there is aseparation of the regulator and the player, so to speak.

In a Perth public hearing, Mr Laurie Marquet, Clerk of the Legislative Council, identifiedthe problems that administering travel entitlements through several bodies might incur:

Ministry of the Premier and Cabinet administer certain determinations of the tribunalwhen it comes to lease vehicles for MPs and the like so you have got this splitjurisdiction and whilst those areas are discrete, there’s still the possibility fordouble-dipping to the extent possible, obviously, we ensure that can’t occur. I’m notsuggesting that it does occur but you at least try and erect barriers to ensure that it can’toccur.

Expressing a differing view, Mr Andrew Murray of the Australian Democrats, in a writtensubmission, suggested that ‘Parliament should determine travel entitlements’ and namedthe ‘parliamentary administrative office’ as the appropriate body.

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The Auditor General, Mr Des Pearson, supported a single authority to administergovernment travel entitlements:

Travel by Members of Parliament and Ministers requires attention and precisely wordedrules need to be drawn up. An umbrella policy, overseen by a single authority would bepreferable to the present system where several bodies administer different aspects ofMembers and Ministerial travel.

The Clerk of the Legislative Council, Mr Laurie Marquet, agreed, at a Perth publichearing, on the need for a single determining body and commented on the determinationand administrative procedures for the Imprest account:

... the parliamentary Imprest account ought to be the subject of a tribunal determinationwhich is then administered by the two chambers’ accountable officers; that is, the Clerkof the Assembly and the Council, in accordance with the tribunal’s determination.

In his written submission, Mr Barry MacKinnon agreed with Mr Marquet’s suggestionabout the Imprest system:

The Imprest system should be managed, as in Queensland, through an AccountableOfficer of the Parliament, authorised by the Premier.

Mr MacKinnon added at a Perth public hearing, a suggestion for parliamentary committeetravel:

Probably then, if the accountable officer for the Imprest system and others is the officerof the Parliament who is also administering the committees of the Parliament, you havegot at least some liaison.

In separate submissions, Mr Allan Mottram and the National Council of Women ofWestern Australia both suggested that the clerks of the respective houses should be theaccountable officers for publicly funded travel by Members of Parliament.

Many submissions made suggestions for ways to improve administrative procedures fortravel entitlements. Mr Allan Mottram stated, in his written submission, that:

... the person involved should be required to produce documented proof of the purposeand necessity for the journey and be checked by the Clerk of the House as to the validityof the application.

At the Port Hedland public seminar, Mr Ahern criticised the Imprest system as:

... a ridiculous system of paying people in advance for something. Private enterprisedoesn’t do that. I have got a company sponsored credit card that I can put all my travelexpenses on and then when I get the bill from the credit card I send that to the companyand the company pays for it as long as I have done all the requirements of reporting,justifying the trip and all that sort of stuff.

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Why can’t politicians be accountable in the same way, or all public servants, any sort ofpeople that use public money, in exactly the same way? They are not out of pocket. Thegovernment will eventually pay their credit card bill but only subject to them meeting allthe conditions and the criteria ...

The Auditor General, Mr Des Pearson, preferred the Queensland system of administeringentitlements:

... where travel allowances are specified and limited, additional travel must be onParliamentary business, reported on and expenditure claimed back after the event.

In his written submission, Mr Andrew Murray of the Australian Democrats commented onthe need for greater reporting requirements by parliamentarians:

One of the ways to ensure that overseas travel is used for parliamentary, electorate orgovernment business is to require parliamentarians to table written reports to parliamentdetailing such matters as where they went, who they met with, when and for how long,what research was done, what conclusions were arrived at and what follow up isexpected.

At a Perth public hearing, Mr Mal Wauchope, Chief Executive of the Office of StateAdministration, did not support detailed reporting:

I wouldn’t like to see a situation where a Member of Parliament had to identify detailedspecific objectives because if you go back to the original intent of the Imprest account itwas to enable Members of Parliament to, as I said, broaden their horizons. That cansimply be gained by going overseas and just seeing how things operate.

In their written submission, the National Council of Women of Western Australia, statedthat members claiming travel expenses should provide:

... proof of parliamentary business, produce documentary evidence that travel wasundertaken, produce receipts for all expenditure, if expense money was issued prior totravel, unused capital be returned.

11.9.4 Analysis

Travel entitlements for Western Australian Members of Parliament are determined bythree sources; the Treasurer, the Salaries and Allowances Tribunal and the PresidingOfficers of Parliament. The entitlements are administered in two areas; the Ministry of thePremier and Cabinet and the Parliament. Submissions were made to the Commission thatthis was acceptable and the system was functioning adequately. Those involved in thedetermination, auditing and administration of travel entitlements said there have been fewcases of fraud or misuse of the entitlements.

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Our enquiries have shown that the administrative procedures are complex and involve avariety of sources of funding. To prevent the possibility of accidental misuse or deliberateabuse of travel entitlements, the determination of travel entitlements should be carried outby a single impartial authority. We believe, with modifications, the Salaries andAllowances Tribunal is the appropriate body for this role. It should be charged withdetermining travel entitlements, including fares and allowances for Members ofParliament. The appropriate approval authority for travel on committee business shouldremain with the Presiding Officers of the Parliament.

It is better to place the administration of travel entitlements for Members of Parliament inthe hands of one body (Figure 11.2). This body should be the Corporate Servicesdepartment of Parliament recommended in Chapter Nine. The administration of travelentitlements for Members of Parliament on committee business should remain with thehouse of Parliament in which the committee originated.

Figure 11.2: Western Australia - Members of ParliamentProposed Travel Entitlements, Determination and Administration

Travel Entitlement

Administeredby

Aggregate Amount Determined by

MEMBER OF PARLIAMENT

ParliamentaryCommittee

Intrastate Traveland

AccommodationAllowance

Imprest

Parliamentto Electorateand Return

Individual Houses of

Parliament


Tribunal

Presiding Officers of Parliament

Corporate Services

Department of Parliament

Corporate Services


Corporate Services



Tribunal


Tribunal

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1. The Salaries and Allowances Act 1975 should be amended to enablethe complete range of travel entitlements for Members of Parliamentto be determined by the Salaries and Allowances Tribunal.

2. The Corporate Services department of Parliament recommended inChapter 9 should administer these entitlements.

3. The Presiding Officers of Parliament should continue to determinetravel outlays for parliamentary committees.

4. The administration of travel outlays for committee members shouldbe handled by the house from which the committee belongs.

11.10 TRAVEL BY MEMBERS OF THE EXECUTIVE ANDOFFICE HOLDERS


Government ministers, the Premier and the Leader of the Opposition are entitled to travelentitlements in addition to those they receive as ordinary members. Travel for eachminister’s office is funded by a specific host department. The Premier and ministers arealso allocated a government car for official and personal use.

In addition to Imprest entitlements, ministers are allocated unlimited travel on anyscheduled air service within Australia. Ministers are granted unlimited air charter andtransport hire at public expense for official purposes.

Publicly funded overseas travel requires the prior approval of the Premier. Ministersreceive a credit card for travelling expenses not met by their host department. Ministersalso receive $60 per day for out-of-pocket expenses when travelling. This entitlementrequires no proof of expenditure other than a signature to certify the money was spent onofficial business. A minister’s travel is paid by their department, which is also responsiblefor reporting travel costs to Parliament. Instructions on the approval procedures andguidelines for ministerial travel are outlined in Circular to Ministers No. 6/93. ThisCircular also established the system of quarterly travel reports to Parliament.

The Leader of the Opposition receives unlimited travel on scheduled air services withinAustralia for official purposes only. The Leader is entitled to six return air trips fordeputising persons. The Leader is also entitled to the equivalent of one round the world airticket during the life of each Parliament. The Leader and Deputy Leader of the Oppositionand the Leader of the Opposition in the Legislative Council all receive a government car

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and driver. A sum of $10,000 is provided for air charter to the Leader of the Opposition.The three senior positions in the Opposition are granted travel allowances at theministerial rate rather than the lower rate for members.

Most other states and territories have additional entitlements, from those of ordinarymembers, for ministers, office holders, premiers, deputy premiers, leaders of coalition orpotential coalition parties and official leaders of the opposition. The Northern Territoryalso has additional travel entitlements for shadow ministers. The regulations applying tothese entitlements do not vary greatly from those in Western Australia. In Queensland, theMinisterial Services Branch of the Department of Treasury concentrates responsibility forall travel by ministers and the premier in one office.


The Electoral Amendment (Political Finance) Act 1992 contains provisions for regulatingtravel by ministers and other office holders during an election period. This Act is yet to beproclaimed. The Circular to Ministers No. 1/93 includes provisions requesting thatministers refrain from travelling at public expense during an election period.


At the Perth public seminar, Mr Barry MacKinnon did not see any problems with thiscategory of travel entitlements: ‘In terms of ministers ... I believe the rules are okay’.

At the Moora public seminar, Mr Bates suggested ministers should give up their travelentitlements at election time:

... a minister travelling during an election time is not travelling for his departmentobviously, he is travelling for his party and himself, and I would guess it would be veryunpopular, but I think the minister’s travelling allowance should be stopped then becausethe opposition politicians don’t have access to that and, you know, that’s not rightbecause it does give an advantage to the party who is in power at the moment.

In his written submission, Mr Barry MacKinnon commented on the travel entitlements ofshadow ministers:

It has always seemed to me that in Western Australia travel entitlements for ShadowMinisters are particularly unfair. They receive no extra allowance outside their Imprestallowance. Consideration should be given to balancing the scales by ensuring that someallowance for such travel, under appropriate guidelines be allowed and funded.

Mr Mal Wauchope, Chief Executive of the Office of State Administration, responded tothis issue at a Perth public hearing:

The problem with the shadow ministry is that it has no constitutional status. I mean, itreally does have no status at all in the system of government ... I would think that if there

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was some sort of argument it would be, rather than attracting to the shadow minister perse, that there be an entitlement perhaps for the Leader of the Opposition’s office tosupport the travel.

11.10.4 Analysis

Travel by ministers is an essential part of public sector administration. It permits ministersto keep abreast of important issues and to promote the interests of the State. Travel byMinisters during the pre-election period is adequately covered by caretaker conventions.The guidelines and procedures established in the Circular to Ministers No. 6/93 aresufficient and have proved successful in ensuring proper accountability for ministerialtravel. The shadow ministry has no constitutional, legal or administrative status and shouldnot receive any additional travel entitlements.


1. The present arrangements for the determination and administrationof travel entitlements for ministers should remain.

2. The existing quarterly travel reports to Parliament should continue.

11.11 TRAVEL BY PUBLIC SERVANTS


Ministers decide which staff accompany them on intrastate, interstate and overseas travel.The Leader of the Opposition has an allowance of $6,000 per financial year to meet thecost of fares and travelling allowances for accompanying staff on official business. Thereare no other rules governing staff travelling with ministers.

Interstate travel by officers of any agency or department is subject to the approval of theresponsible minister. Any overseas travel is subject to the approval of the premier.Intrastate travel requires the approval of the departmental chief executive officer (CEO).Any travel by the CEO is subject to ministerial approval.

In 1993, the Western Australian Government established formal guidelines for theapproval of departmental travel (Circular to Ministers No. 6/93). Under the guidelines,travel should not be undertaken unless it is the most cost-effective means of obtaining theinformation required. Overseas travel should not be undertaken unless Western AustralianGovernment employees based overseas cannot carry out the task. Attendance at interstateand overseas conferences and courses should be minimised and occur only if absolutelynecessary.

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Departments are required to submit quarterly returns to Parliament outlining their travelexpenditure. The returns give the names of members, ministers and officers of the publicservice who travelled, the destination, duration, reasons for travel and the total cost of thetrip. The returns are tabled in Parliament.

A report by the Office of the Auditor General in September 1995 highlighted problemswith public sector travel. Insufficient travel policies and guidelines in some departmentshave resulted in inaccurate reporting of government travel details. The Auditor Generalrecognised that agencies are now generally obtaining the appropriate approvals for travel,although greater efficiency could be achieved (OAG, 1995: 4).


Travel by public servants was subject to the provisions of the unproclaimed ElectoralAmendment (Political Finance) Act 1992 and reinforced in the Circular to MinistersNo. 2/93.


No public submissions were made on this subject.

11.11.4 Analysis

Travel by public servants has to be approved at either CEO or ministerial level and issubject to the Financial Administration and Audit Act 1985. Any improvements to theadministrative procedures for travel by public servants can be introduced by departments,under the scrutiny of the Auditor General. No substantial change is needed other than theadoption of practices to comply with the recommendations made in the Auditor General’sReport No7 released in September 1995.


1. Travel by public servants should continue to be approved byministers and be paid from departmental budgets.

2. The existing system of reporting travel by public servants toParliament quarterly should continue.

3. Public sector travel expenditure should continue to be scrutinised bythe Auditor General.

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11.12 TRAVEL BY PARTNERS


The partner and dependents of Western Australian Members of Parliament are given travelentitlements. Each member’s partner and any dependent children are allocated four returnflights on scheduled air services between the member’s electorate and Perth or within theelectorate each year. In addition, each member’s partner is permitted free rail travelbetween the electorate and Perth and within the electorate, as well as one month of travelon any Australian Government Railway. The partner and dependent children are alsogranted two free return trips per year on any Western Australian Government railway.They are not allowed to travel at the public expense on the metropolitan rail system.

The partner of each minister is permitted one intrastate and one interstate trip on scheduledair services each year, and 12 return trips per calendar year between their partner’selectorate and Perth or within the electorate. Dependent children are granted ten journeys.This travel is in addition to their entitlements as the partner and dependents of an ordinarymember. The partner of the Leader of the Opposition receives the same privileges as aminister, and is permitted to accompany the leader on a round the world trip. This isfunded out of Imprest account funds.

Similar entitlements are found in the other states and territories. Queensland limits thenumber of trips partners may make. In New South Wales a member must register‘approved relatives’ with the Speaker. Only these registered and approved relatives areeligible to claim the entitlements offered for partners. Partners and dependents can onlytravel with the member at public expense on parliamentary business but the number oftrips available is limited. South Australia utilises the definition of spouse contained in theMembers of Parliament (Register of Interests) Act 1983 in an attempt to limit potentialabuses of this entitlement. The Northern Territory also requires members to register theirpartners with the Speaker of the Parliament. They are only permitted to attend ifspecifically invited with the member and the number of interstate trips partners anddependents may attend at the public expense is limited.


There have been no new provisions for regulating the publicly funded travel of partners ofMembers of Parliament since the WA Royal Commission.


Mr Mal Wauchope, Chief Executive of the Office of State Administration, commented onthe concept of partners accompanying members:

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Given that they also are quite often representing rural electorates and in fact travellingall the time during the parliamentary session, the dislocation factor to members’ livescan be quite significant. My view is that generally speaking, and within reason, there isan argument for members to have their spouse travel with them because it is almost, Isay, part of the job.

In his written submission, Mr J.E. Knox, preferred a system where only married partnerswere permitted to accompany the member:

No to dependant children, yes to the Minister’s wife if the engagement he is fulfillingrequired the attendance of his wife. De facto partners, no.

Mr Knox also suggested the premier require a minister to ‘produce evidence that it isnecessary to take his wife’.

At the Albany public seminar, Mr Carson said:

I don’t see any problem with a member taking his or her spouse or children.

Mr Barry MacKinnon provided an insight into the member’s point of view:

... I must say this with some feeling, the wives of politicians or the husbands for thatmatter – spouses, partners – really do pay a very heavy price for the time you spend inpolitics.

The only time that I felt it was a benefit for my wife to be with me was when I was aminister and going on trips to official occasions where there were a lot of officialfunctions you had to go to.

I am not convinced however that a spouse should be entitled to accompany a member ofparliament on out of state travel unless guidelines permit them to accompany theirpartner to some designated official event.

At the Perth public seminar, Mr MacKinnon emphasised these points:

... under the Imprest system, you can take your wife or your spouse should I say and Iam not convinced that taking your spouse on such a trip really is of any great value. Iknow I took my wife once or twice and most of the time, if you are doing your job, youhaven’t got time anyway and it is a bit of a waste of time. I would rather spend my ownmoney and have a holiday with my wife rather than be working with her.

But normally on a trip that is supposed to be a study trip, I find it hard to justify the factthat you would take your spouse with you. It really doesn’t add anything greatly to theunderstanding or to the learning of what you are doing in such a process, in my opinion.

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At the Moora public seminar, Ms Lamb criticised the practice of partners accompanyingmembers at public expense:

I don’t reckon any politician should take any member of his family anywhere when hetravels on behalf of me. If they have got a social night, just attend it with the guys. Wedon’t need these appendages spending money on our behalf.

At the Geraldton public seminar, Ms Von Kehler said:

I still would not like to see spouses and children travel on my taxes, although I wouldnot deprive my Member of Parliament of the company of his wife; but I think when hedoes want to go overseas, if she wishes to accompany him, she might wish to pay forherself. It needs to be accountable. I don’t think it should be in the treasurer-cum-premier’s office. I believe there needs to be a separate body that looks at this ...

At the same public seminar, Ms Maxwell added:

I am not in favour of not being able to take their spouse. My area of work means that Itry to keep families together and I feel separation at certain stages isn’t healthy. I thinkit’s a lot of pressure on families. I don’t believe they should go totally free on thegovernment. There should be a good discount to encourage that to an extent.

11.12.4 Analysis

For an official engagement there may be a need for partners to accompany Members ofParliament at public expense. The duties of a member are arduous and often take themember away from the family for lengthy periods. As a form of recompense, somefunding of partners and dependents travelling with members may be acceptable. Thisshould be determined by an independent tribunal.

The administration of the entitlements for spouses and dependents is primarily dealt withby the Ministry of the Premier and Cabinet. We believe it is more appropriate for theadministration of travel entitlements for spouses and dependents of Members ofParliament if it is vested in one body. The Corporate Services department of Parliament,recommended in this Report, would be more appropriate. In line with recommendations onMembers of Parliament, we believe all travel entitlements directly or indirectly linked tomembers should be administered by the Corporate Services department of Parliament. Theentitlements of partners accompanying ministers should be administered by the Ministryof the Premier and Cabinet.

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1. The Salaries and Allowances Act 1975 should be amended to enablethe Salaries and Allowances Tribunal to determine the travelentitlements for the partners and dependents of Members ofParliament.

2. Any entitlements for partners and dependents of Members ofParliament travelling on parliamentary business should beadministered by the Corporate Services department of Parliamentrecommended in Chapter 9.

3. Any entitlements for partners and dependants of ministers travellingon executive business should continue to be administered by theMinistry of the Premier and Cabinet.

11.13 TRAVEL BY FORMER MEMBERS


Former members who served a minimum of 12 years aggregate service receive a Life Passon Western Australian Government Railways and their spouse and children mayaccompany them on one intrastate return trip per year. There is also an entitlement for aformer member and spouse to one return rail trip interstate per financial year. This appliesto former members living in Western Australia.

Members who leave Parliament with a minimum of 20 years aggregate service also receiveunlimited interstate travel with a Railways of Australia Gold Pass. Their spouse canaccompany them for one interstate rail trip per financial year at public expense. A sum of$2,250 is available for any other travel by former members with 20 years or more ofparliamentary service, as long as the travel is not for commercial purposes. This moneymust not be used for travel in the metropolitan area.

These entitlements are not affected by any employment which a former member mayundertake with the public sector after retirement or resignation from Parliament.

Former premiers receive additional travel entitlements, although many apply only for aninitial period after retirement or resignation. These include:

• use of a government vehicle and driver for six months after leaving office. After thisperiod a vehicle and driver are available for transport to an official function orspecial occasion for the remainder of the former premier’s lifetime;

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• if the former premier resides outside of Western Australia, a private taxi is availablewhen required for attendance at official functions. This entitlement is available for aperiod equal to the time the premier held that office and must not exceed $1,000 peryear;

• optional purchase of their official vehicle at a price determined by the State SupplyCommission;

• lifetime Gold Passes on Railways of Australia for former premier and spouse;

• travel and accommodation expenses, for 12 months after leaving Parliament, whenattending an official function. After the 12 month period, funding for travel is at thediscretion of the Salaries and Allowances Tribunal;

• access to the $2,250 travel expense benefit accorded ordinary members; and

• regular mechanical maintenance on vehicles.


There has been no action taken to regulate the travel entitlements of former Members ofParliament since the WA Royal Commission.


At a Perth public hearing, Mr Mal Wauchope, Chief Executive of the Office of StateAdministration, identified an accountability issue in the system of travel entitlements forformer members:

The difference, of course, with former members is there is no reporting on it whatsoeverin terms of the public arena, so perhaps that’s an issue that also could be addressed.

At a Perth public hearing, Mr Jack Evans, from the Australian Democrats queried the needfor additional resources for a parliamentary career that is effectively over:

... aside from the requirement that every retired parliamentarian has to respond tocorrespondence and that sort of thing, parliamentarians’ duties as members of thatparliament, to all intents and purposes, finish on the day of retirement.

He went on to suggest that any compensation members receive should be paid out duringtheir parliamentary career and not afterwards:

I think that the compensation to parliamentarians should be there for them for the periodof their service and should end on the day that that service ends. They, obviously, shouldbe entitled to the same as the rest of us, to superannuation and any other similar types of

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benefits in retirement but not to self-granted perks that the Parliament is the only arbiteron.

At the Derby public seminar, Mr O’Dwyer, expressed a similar sentiment:

I think they should be on the same footing as everybody else on the planet. You get paidwhile you’re doing the job and once you finish the job that’s the end of the story.Nobody else gets all these bits and pieces.

At the Port Hedland public seminar, Mr Ahern criticised the entitlements given to formerMembers of Parliament:

I definitely don’t believe that they should be getting a whole list of all these perks afterthey have left office. I think that superannuation should be the main one and that shouldbe sufficient, and I believe that they do have an excellent superannuation scheme.

11.13.4 Analysis

Entitlements to former Members of Parliament, office holders and members of theexecutive are seen as a reward for substantial service to the state. These services are oftennecessary for members whose public profile and status continues after they have leftoffice. The travel component of the entitlements is used to attend official functions towhich ex-members are often invited.

There is a conflicting view which sees these entitlements as unjustified emoluments afterleaving the job. They become an additional administrative burden on government and apotential area for abuse of public funds.

If all travel entitlements for members leaving Parliament in future were removed, it isproper to offset this by increasing the entitlements and remuneration of sitting members.All travel entitlements received after the end of a parliamentary career should cease. Amember’s link with the public purse would end with the termination of the member’sparliamentary career, apart from superannuation entitlements.

Past Members of Parliament, premiers and ministers, receive entitlements and benefits as aresult of determinations made by the Salary and Allowances Tribunal under Section 6B ofthe Salaries and Allowances Act 1975.

Remuneration for Ministers of the Crown, Parliamentary Secretaries and Members ofParliament should be determined on the basis that the payments received during a term ofoffice provide a level of compensation that properly reflects the work value and includesrecognition of the existing post-term entitlements.

To ensure that this recommendation is fair, Section 6B of the Salaries and Allowances Act1975 should be amended to provide that no further determinations be made under its

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terms. Past members should continue to enjoy benefits at their current level andconditions. Any entitlement that becomes payable by retirement of a member at thecompletion of the current Parliament should expire six years after the date ofcommencement of the next Parliament.


1. Section 6B of the Salaries and Allowances Act 1975 should beamended to provide that no further determinations be made under itsterms.

2. Past members in receipt of benefits paid under Section 6B of theSalaries and Allowances Act 1975 should continue to receive thosebenefits at their current level and conditions.

3. For sitting members, any existing entitlement that becomes payableby retirement at the completion of the current Parliament will expiresix years after the date of commencement of the next Parliament.

4. Prior to the commencement of the next Parliament, the Salary andAllowances Tribunal should make a determination of remunerationpursuant to Section 6 of the Salaries and Allowances Act 1975 . Thedetermination should fix a remuneration at a level that reflects thework value and includes recognition of existing post-termentitlements.

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APPENDIX 1

REFERENCES: CHAPTERS 2 AND 3(SPECIFIED MATTER 7)

Barker, M. (1993) ‘WA Inc. Royal Commission Recommendations: Overview andImplications for Commercial Dealings of Government’ Australian Institute ofAdministrative Law Newsletter 16: 5-11

Commonwealth of Australia, Industry Commission (1994) Information Paper: Improvingthe Efficiency of GBEs Canberra: AGPS

Commonwealth of Australia, Industry Commission (1995) ‘Competitive Tendering andContracting Out by Public Sector Agencies’ Draft Report Overview AGPS: Canberra

Commonwealth of Australia, Joint Committee on Public Accounts (CommonwealthJCPA) (1995) ‘Public Business in the Public Interest’ Report 336 Canberra: AGPS

Commonwealth of Australia, National Competition Policy Review Committee (HilmerCommittee) (1993) Report Canberra: AGPS

Mascarenhas, R. C. (1990) ‘New Zealand’ in Wettenhall and Nuallain (editors) PublicEnterprise Performance Evaluation: Seven Country Studies Brussels: InternationalInstitute of Administrative Sciences

Sykes, T. (1994) The Bold Riders: Behind Australia’s Corporate Collapses Sydney:Allen and Unwin

Western Australia, Commission on Accountability (Burt Commission) (1989) Report tothe Premier Perth

Western Australia, Fremantle Port Authority (1995) Annual Report 1995 Perth

Western Australia, Independent Commission to Review Public Sector Finances (McCarreyCommission) (1993) ‘Agenda for Reform’ Report Volumes 1 and 2 Perth

Western Australia, Legislative Assembly Standing Committee on Uniform Legislation andIntergovernmental Agreements (SCULIA) (1996) ‘Competition Policy: Consideration ofthe Implementation of a National Competition Policy’ Twelfth Report Perth

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Appendix 1References: Chapters 2, 3, 4 and 5

Western Australia, Premier (1993) Circular to Ministers No. 46/93 Perth

Western Australia, Premier (1994) Circular to Ministers No. 46/94 Perth

Western Australia, Royal Commission into Commercial Activities of Government andOther Matters (WA Royal Commission) (1992) Report Parts I and II Perth

Western Australia, Standing Committee on Government Agencies (SGCA) (1994) ‘StateAgencies: Their Nature and Function’ Thirty-sixth Report Perth

Western Australia, Treasury (1994) Community Service Obligations Performed byGovernment Business Enterprises Perth

Western Australia, Treasury (1995) 1995-96 Economic and Financial Overview: BudgetPaper No. 5 Perth

Western Australia, Western Power (1995) 1995-96 Statement of Corporate Intent Perth

LEGISLATION

Competition Policy Reform Act 1995 (Cwlth)Corporations LawElectricity Corporation Act 1994Financial Administration and Audit Act 1985Gas Corporation Act 1994Housing Act 1980Public Authorities (Contributions) Act 1974State Owned Corporations Act 1993 (Qld)State-Owned Enterprises Act 1986 (NZ)State Owned Enterprises Act 1992 (Vic.)State Supply Commission Act 1991State Trading Concerns Act 1917Territory Owned Corporations Act 1990 (ACT)Trade Practices Act 1974 (Cwlth)Treasurer’s InstructionsWater Corporation Act 1995

SUBMISSIONS

Australian Democrats (1995) Submission No. 953766Barnett, C. (1995) Submission No. 952385Civil Service Association (1996) Submission No. 960461Harvey, P. (1996) Submission No. 960164

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TRANSCRIPTS

Baker, I. (5.12.95) Perth Public Hearing TranscriptFrith, J. (7.2.96) Manjimup Public Seminar TranscriptJones, P. (5.12.95) Perth Public Hearing TranscriptLowe, H. (7.12.95) Perth Public Hearing TranscriptMcCarrey, L. (5.12.95) Perth Public Hearing TranscriptMeredith, B. (5.12.95) Perth Public Hearing TranscriptMurray, A. (8.12.95) Perth Public Hearing TranscriptParke, R. (1.2.96) Manjimup Public Seminar TranscriptPearson, D. ( 14.12.95) Perth Public Hearing TranscriptWarne, N. (1.2.96) Moora Public Seminar Transcript

REFERENCES: CHAPTERS 4 AND 5

Commonwealth of Australia, Access to Justice Advisory Committee (SackvilleCommittee Report) (1994) Access to Justice: An Action Plan Canberra: AGPS

Commonwealth of Australia, Administrative Review Committee (Kerr Committee) (1971)Report Canberra: AGPS

Commonwealth of Australia, Committee on Administrative Discretions (BlandCommittee) (1973) Final Report of the Committee on Administrative DiscretionsCanberra: AGPS

Commonwealth of Australia, Ombudsman (Cwlth Ombudsman, 1995) Annual Report1994-95 Canberra

Commonwealth of Australia, Ombudsman (Cwlth Ombudsman, 1995a) Complaints andIssues Related to Government Services Which are Delivered by Contract Canberra

Commonwealth of Australia, Senate Standing Committee on Finance and PublicAdministration (SSCFPA) (1991) ‘Review of the Office of the Ombudsman’ ReportCanberra

Jinks, Brian (1990) ‘The Ombudsman’s Dilemma’ Directions in Government February:18-20

Kernot, Cheryl (1995) The Death of the Public Interest: Community Responsibility in theAge of Privatisation Paper presented at the University of Newcastle

New South Wales, Joint Committee on the Office of the Ombudsman (New South Wales,Ombudsman, 1993) General Meeting Report Sydney

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New South Wales, Joint Committee on the Office of the Ombudsman (New South Wales,Ombudsman, 1993a) ‘Inquiry into the Adequacy of the Funds and Resources Available tothe Ombudsman’ Report Sydney

New South Wales, Joint Committee on the Office of the Ombudsman (1994) ‘Access andAwareness Inquiry’ Report Sydney

New South Wales, Ombudsman (1995) Annual Report 1994-95 Sydney

New South Wales, Ombudsman (1995a) Ombudsman’s Good Conduct andAdministrative Practice: Guidelines for Public Authorities and Officials Sydney

New South Wales, Royal Commission into the New South Wales Police Service (WoodRoyal Commission) (1996) Interim Report Sydney

Owen, Stephen (1993) ‘The Ombudsman: Essential Elements and Common Challenges’in Reif, Linda, Marshall, Mary and Ferris, Charles (editors) (1993)

Pearce, D.C. (1986) Commonwealth Administrative Law Sydney: Butterworths

Queensland, Commission of Inquiry Pursuant to Orders in Council (FitzgeraldCommission) (1989) Report Brisbane

Queensland, Electoral and Administrative Review Commission (EARC) (1993) Reporton Review of Appeals from Administrative Decisions Brisbane

Queensland, Ombudsman (1994) Annual Report 1993-94 Brisbane

Reif, Linda, Marshall, Mary and Ferris, Charles (editors) (1993) The Ombudsman:Diversity and Development International Ombudsman Institute Canada: University ofAlberta Edmonton

Rhodes, K. W. (1985) The Ombudsman: Understanding the Concept Darwin:Government Printer

Robertson, Sir John (1993) ‘The Ombudsman – World Trends’ in Reif, Linda, Marshall,Mary and Ferris, Charles (editors) (1993)

South Australia, Ombudsman (1995) 23rd Annual Report Adelaide

Victoria, Ombudsman (1993) Annual Report 1992-93 Melbourne

Victoria, Ombudsman (1994) Annual Report 1993-94 Melbourne

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Western Australia, Commission on Government (COG) (1995) Report No. 1 Perth

Western Australia, Commission on Government (COG) (1995a) Report No. 2, Parts 1 and2 Perth

Western Australia, Independent Commission to Review Public Sector Finances (1993)‘Agenda for Reform’ Report Perth

Western Australia, Parliamentary Commissioner for Administrative Investigations (StateOmbudsman) (1993) Annual Report 1992-93 Perth



Western Australia, Parliamentary Commissioner for Administrative Investigations (StateOmbudsman) (1995a) Jurisdiction of the Ombudsman in Relation to the Staff of Courtsand Tribunals Paper delivered to the 15th Australasian Pacific Ombudsman ConferenceHong Kong

Western Australia, Parliamentary Commissioner for Administrative Investigations (StateOmbudsman) (1995b) Report on an Investigation into the Administrative Action Relatingto the Health Care Provided to Ms W and Ms E at Bandyup Women’s Prison and RelatedAdministrative Matters Perth

Western Australia, Royal Commission into Commercial Activities of Government andOther Matters (WA Royal Commission) (1992) Report Parts I and II Perth

Western Australia, Standing Committee on Government Agencies (SCGA) (1994) ‘StateAgencies: Their Nature and Function’ Thirty-sixth Report Perth

Western Australia, Standing Committee on Uniform Legislation and IntergovernmentalAgreements (SCULIA) (1996) ‘Competition Policy: Consideration of the Implementationof a National Competition Policy’ 12th Report Perth

Western Australia, Task Force on Aboriginal Social Justice (1994) Report of the TaskForce Perth

Western Australia, Treasury (1995) 1995-96 Economic and Financial Overview: BudgetPaper No. 5 Perth

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LEGISLATION

Competition Policy Reform Act 1995 (Cwlth)Corporations LawEqual Opportunity Act 1984Financial Administration and Audit Act 1985 (FAAA)Freedom of Information Act 1992Local Government Act 1960Ombudsman Act 1962 (NZ)Ombudsman Act 1967 (UK)Ombudsman Act 1972 (SA)Ombudsman Act 1973 (Vic.)Ombudsman Act 1974 (NSW)Ombudsman Act 1974 (Qld)Ombudsman Act 1976 (Cwlth)Ombudsman Act 1978 (Tas.)Ombudsman (Northern Territory) Act 1993 (NT)Parliamentary Commissioner Act 1971 (Qld)Protected Disclosures Act 1994 (NSW)Public Interest Disclosure Act 1994 (ACT)Public Sector Management Act 1994Public Service Act 1978Royal Commissions Act 1968Scrutiny of Government Contracting Out and Privatization Activities Bill 1995State Owned Enterprises Act 1992 (Vic.)Whistleblowers Protection Act 1993 (SA)Whistleblowers Protection Act 1994 (Qld)

CASES

Booth v Dillon (No. 3) [1977] VR 143Emanuel v Cahill (1987) 71 ALR 302Foord v Whiddett (1985) 60 ALR 269Glenister v Dillon [1976] VR 550

SUBMISSIONS

Australian Democrats (1995) Submission No. 953766Barrow, J. L. (1996) Submission No. 960101Bartholomew, P. (1996) Submission No. 960022Cowan, H. (1996) Submission No. 960068Cox, A. (1995) Submission No. 953873Eadie, R. (1995) Submission No. 953833Eadie, R. (1995) Submission No. 953914

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Eadie, R. (1995) Submission No. 950785Eadie, R. (1996) Submission No. 960261Eiszele, D. (1996) Submission No. 960587Ethell, L. (1996) Submission No. 960267Falconer, R. (1996) Submission No. 960544Gill, J. (1996) Submission No. 960149Girvan, O. (1996) Submission No. 960113Gossman, A. (1996) Submission No. 960212Hall, N. C. (1995) Submission No. 953857Hesse, P. (1995) Submission No. 953863Johnstone, R. (1996) Submission No. 960171Kean, R. (1995) Submission No. 953756Kean, R. (1996) Submission No. 960105Lindsay, R. (1996) Submission No. 960131Minson, K. (1996) Submission No. 960517Moran, K. (1995) Submission No. 953683Pearson, D. (1996) Submission No. 960252Pearson, D. (1996) Submission No. 960566Pritchard, J. (1996) Submission No. 960280Rowe, L. G. (1995) Submission No. 952789Rundell, K. (1996) Submission No. 960026Sands, J. (1996) Submission No. 960065Stein, E. R. (1995) Submission No. 953828Stone, R. (1996) Submission No. 960292Town of Albany (1996) Submission No. 960475Trainor, D. (1996) Submission No. 960129

CORRESPONDENCE

Coleman, W. Chief Commissioner (1996) Correspondence No. 960563Malcolm, D. Hon. Mr Justice (1996) Correspondence No. 960553Sharkey, P.J. President (1996) Correspondence No. 960547

TRANSCRIPTS

Burton, R. (12.2.96) Perth Public Hearing TranscriptCrimp, I. (8.2.96) Derby Public Seminar TranscriptEadie, R. (6.2.96) Perth Public Hearing TranscriptHayle (14.1.96) Port Hedland Public Seminar TranscriptLittle, R. (15.2.96) Merredin Public Seminar TranscriptMurray, A. (9.10.95) Perth Public Hearing TranscriptTrainor, D. (9.10.95) Perth Public Hearing Transcript

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APPENDIX 1A

COMMISSION ON GOVERNMENT

COMMISSION ON GOVERNMENT ACT 1994

Ombudsman Jurisdiction –Addition of a New Matter

COMMISSIONERS:

Mr J F Gregor (Chairperson) 3 MARCH 1995Mrs A ContiDr F HarmanDr C SharmanMr R Dawson

REASONS FOR DECISION

The Commission on Government Act 1994 (the Act), establishes a Commission, thepurpose of which is to inquire into certain matters relating to public administration andrelevant to the prevention of corrupt, illegal or improper conduct in the public sector. Thelegislature identified 24 Specified Matters which appear in Schedule 1 to the Act. TheCommission’s functions are to inquire into the Specified Matters to the extent that itconsiders those matters to be relevant to the prevention of corrupt, illegal or improperconduct by, or involving, public officials, and to report on those matters not later than 21months after the date on which the Act commences. The Commission is to cause itsreports to be published, by delivery to the Chairperson of the Joint Standing Committee onthe Commission on Government and to the Minister under the Act.

There is no specific Specified Matter in Schedule 1 that relates to the role, function orjurisdiction of the Parliamentary Commissioner for Administrative Investigations (theOmbudsman). On the 28th of November 1994, the Commission on Government (COG)received a letter from Mr Richard Court MLA, the Premier, in which he formallyrequested that the Commission initiate an investigation for the purpose of determiningwhich bodies should fall within the Ombudsman’s jurisdiction.

The letter from the Premier, formal parts omitted, is included:

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“You may recall that the Parliamentary Commissioner for AdministrativeInvestigations in his Annual Report raised the question of governmentagencies which do not come within his jurisdiction.

The Government is also concerned over this issue and had been discussingwith the Commissioner the most appropriate way of dealing with thematter. Progress has unfortunately been slow as there is a strong viewwithin some agencies, particularly those that report to Parliament, thatthey should not be subject to such review.

Recently, during debate on a Bill introduced by the Deputy Leader of theOpposition to amend the Parliamentary Commissioner Act 1971, Iindicated that the Government would undertake to refer the question ofdetermining which bodies should fall within the Commissioner’sjurisdiction to your Commission for investigation and recommendation.

I therefore formally request that the Commission initiate an investigationon this matter. In this regard, I enclose for your information a copy of theAmendment Bill; Second Reading speech; and my response during thatdebate.

The letter from the Premier had been preceded by a letter from the Deputy Leader of theOpposition, Dr Geoff Gallop MLA, which was received by COG on the 22nd ofNovember 1994. In that letter, Dr Gallop suggested that COG should decline to inquireinto the Ombudsman’s jurisdiction primarily on the ground that it would unnecessarilydivert COG from the work which had been set out for it by the Act.

For completeness, a copy of the letter, formal parts omitted, is included:

You would be aware that the State Opposition moved in the Parliament toextend the jurisdiction of the Ombudsman to all Government agencies byway of an amendment to the Parliamentary Commissioner Act. The Billwas defeated in the Legislative Assembly 24-18.

In the course of rejecting the Bill the Government indicated that itintended referring the matter to the Commissioner (sic) on Government(COG) in order to determine which agencies should and which onesshould not be subject to the Ombudsman. He expressed the view that youcould make a study of what happens in the other States in relation to thismatter and then advise the Government. In particular you could make astudy of the Ombudsman’s jurisdiction in relation to the fifty (50) agenciesnot currently covered.

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I would ask you to give the matter of whether or not you undertake such atask early consideration. It is the view of the Opposition that this matterought to have been dealt with by the Parliament in that:

1. The Bill we proposed had been recommended by both theOmbudsman and the Legislative Council’s Standing Committee onGovernment Agencies in their 36th report.

2. Should any agency feel particularly strongly that it ought to beexempted that matter could have been dealt with duringparliamentary debate itself by way of amendment indicatingexemptions. In other words it is up to the executive arm ofgovernment to convince the Parliament should it desire to exemptone of its agencies.

We would respectfully suggest, therefore, that you do not take up thissuggestion from the Government in that it would unnecessarily divert youfrom the work that has been set for you by the Commission onGovernment Act.

Looking forward to hearing from you about this matter.

By Section 5(a) of the Act, COG is obliged to inquire into the matters specified inSchedule 1. By Section 5(b) it may inquire into matters which have not been specified if itconsiders that they are relevant to the prevention of various categories of improperbehaviour by, or involving, public officials. By Section 5(c) COG may inquire into anyother matter considered pertinent to either ‘specified’ or ‘other’ matters. It was in theconsideration of its obligations under these parts of the Act that COG determined that inthe public interest it should list the application made by the Premier on behalf of theGovernment for consideration at a special public hearing.

For this purpose, an advertisement was placed in the West Australian newspaper on the21st of January 1995. The purpose of the notice was to advise that at a special publichearing COG would take submissions on the question of whether or not the widening ofthe jurisdiction of the Ombudsman should be added to the Specified Matters to be inquiredinto by COG. It noted that presently, the Ombudsman’s jurisdiction is confined toGovernment departments and agencies stipulated in the Parliamentary Commissioner Act1971, and that some departments and agencies are not named in the Act and therefore notcovered. The advertisement also indicated that the Ombudsman had recommended invarious annual reports that his jurisdiction embrace all departments and agencies in theState public sector apart from a few stipulated exceptions. By the advertisement, the publicwas advised that written submissions should be made by Monday, the 13th of February1995, and that oral statements could be made at a public hearing to take place on Tuesday,the 21st of February 1995.

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Written submissions were received. Mr R.J. Byart; Hon Hendy Cowan MLA, DeputyPremier; Ms Geraldine Rust on behalf of the Run Away Teenagers Parents ActionCommittee Inc; Mr J.L. Barrow; Mr B.G.A. Smith; Mr P. Hesse; Hon David Smith MLA;Hon Dr Geoff Gallop MLA, Deputy Leader of the Opposition; and Mrs Yvonne Fisher onbehalf of the Justice for Roger Johns Campaign. Verbal submissions in support of writtensubmissions were also received from Mr Peter Rowe, who appeared for the Premier; MrGuy Hickey, for Suicide Research and Prevention; Mr Kevin Moran, for CommunityAction Legislative Lobby (CALL) and Mr M.H. Bungey on his own behalf.

The Commission was told by Mr Rowe, who appeared for the Premier, that theCommission is required to report on a number of matters, including in Specified Matters 5and 13, the functions and terms of reference for an Administrative Appeals Tribunal andstatutory officials including the Official Corruption Commission. In addition, the functionof the powers of the Auditor General are to be considered. It was the submission of MrRowe that insofar as independent statutory officials are concerned, there is potential foroverlap and more importantly, gaps between areas of responsibility and their respectiveambits of operation should be addressed. This includes the Ombudsman and while mattersrelevant to the Ombudsman are not specifically included in the Specified Matters, MrRowe emphasised that from the Government’s perspective they clearly should be. OtherSpecified Matters which impact on the Ombudsman’s jurisdiction include SpecifiedMatters 7 and 11. Mr Rowe gave as an example the scrutiny of State-owned companies asan area in which the Ombudsman has concerns, as indeed is the development ofwhistleblowing legislation. In response to questions from Commissioners, Mr Rowe saidthat the matters in Specified Matters 11 and 13 should be considered in a complementaryfashion and that there was no difficulty in there being a broad scope of inquiry.

In a written submission, Dr Geoff Gallop, the Deputy Leader of the Opposition, told theCommission that the Ombudsman’s jurisdiction is a matter which ought to be dealt withby the Government and the Parliament. The question of his jurisdiction had been raised bythe Ombudsman on numerous occasions during the last decade and Dr Gallop gaveexamples of this. He suggested that the solution to the problem had been identified by theOmbudsman and that was simply that in accordance with the principle of maximumaccountability the best solution was that all agencies should come under the Ombudsman’sjurisdiction. Further, Dr Gallop claimed that the principal question of whether or not theOmbudsman should have jurisdiction over all government agencies had been decided. Theoffice and its function are reasonably well understood. The only question which needs tobe dealt with is whether there are any agencies which can justifiably claim exemption. It isclear from the work the Ombudsman has already done on that question that there is only abare minimum of agencies which “could” and “ought” be excluded. Because the terms ofthe debate are so well understood and have been so well canvassed, unlike many areas ofthe Royal Commission Second Report, the question in Dr Gallop’s view is simply that theOmbudsman’s jurisdiction now needs to be dealt with by Parliament. To do otherwise is to

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cause unnecessary delay. To distract COG on to activities such as examination of theOmbudsman’s jurisdiction, Dr Gallop submitted, would detract from its primary aimwhich is to extend the net of accountability around the Executive.

In his submission, Mr Hickey gave an example to COG where it appeared to him that therewas a jurisdictional difficulty for the Ombudsman when dealing with certain types ofpolice matters. He believed that the Act provides the opportunity “in terms of breadth” toinclude the jurisdiction of the Ombudsman.

COG also heard from Mr Kevin Moran, who appeared for CALL. He drew attention to thecircumstances of social and youth workers employed outside government organisationsbut who were nevertheless dependant upon State Government for funding of their wages.He gave instances of the conduct of this category of social and youth workers which hethought were matters which should be subject to the jurisdiction of the Ombudsman in thesame way as is the conduct of social and youth workers employed in Governmentdepartments.

In a detailed submission, Mr Bungey drew to the Commission’s attention that Section 5(a)of the Act requires COG to inquire into certain Specified Matters. He suggested that theprovision was mandatory and not directory upon the Commission in that if it made afinding that there was corrupt or illegal or improper conduct by public officials it wasrequired to initiate an inquiry. His argument was based upon the premise that the functionsof the Ombudsman are relevant to the prevention of corrupt, illegal or improper conductby public officials and that, therefore, if the functions are relevant the breadth ofjurisdiction of the Ombudsman is likewise relevant. It followed, Mr Bungey submitted,that there should be an investigation into the question of jurisdiction of the Ombudsmanand that if there was, that would be a matter within the compass of the Act. Mr Bungeyalso canvassed the effect of Section 6 of the Act which enables the Commission todiscontinue an investigation if there has been legislative or administrative action whichadequately addresses the matter. It was Mr Bungey’s submission that the defeat of theParliamentary Commissioner Amendment Bill 1994, referred to in the letter from thePremier, can not be construed as being adequate action. In fact, the Hansard indicates thatthe Government favoured extension of the jurisdiction of the State Ombudsman butpreferred the route of the change to be via an inquiry and report by COG.

In developing his submission, Mr Bungey suggested that the proceedings of theLegislative Assembly itself endorsed examination of the matter by COG. The matter wasclearly one of significance which should merit inquiry. The absence of evidence orargument to the contrary supported that conclusion. It was his opinion that parliamentaryconsideration of the matter with the benefit of inquiry and report by COG is preferable toparliamentary consideration without inquiry by COG because it would more likely resultin a consistent and logical definition of the Ombudsman’s jurisdiction given the othermatters that COG must inquire into. Mr Bungey submitted that the reason for this is thatthere would be greater public participation and contribution. There would be more

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opportunity for clear definition of the exemption agencies. The COG inquiry would reflectpractices in other Australian jurisdictions. This is important, according to Mr Bungey,because Western Australia was one of the first States to establish an Ombudsman so thecurrent legislation may not reflect developments in other jurisdictions.

Mr Bungey suggested that the definition of Government Agency may require furtherconsideration. An inquiry and report by this Commission would ensure more informedparliamentary scrutiny because the report would be considered firstly by the Joint StandingCommittee on the Commission on Government and secondly, should legislation follow, byboth Houses of Parliament. It was Mr Bungey’s belief that this would produceparliamentary scrutiny which would be more ordered and logical. The inquiry would tendto lessen, although it could not guarantee, exemptions being made because of politicalconvenience, mainly because future government moves for exemptions for a particularagency could be judged against the criteria set by the Commission.

In the final part of his submission, Mr Bungey argued that the breadth of the jurisdiction ofthe State Ombudsman is clearly part of the mandate set out for COG in the Act. It can notdivert from the work set out in the Act because it is clearly a task the Act requires of it.The question of overload is not a factor which COG is enabled, by its Act, to take intoaccount in determining whether additional inquiries should be added to its terms ofreference. The matter was important. The State Ombudsman is a vital part of the apparatusof Government in countering corrupt, illegal and improper conduct and this being so, itsjurisdiction is pertinent to the tasks of the Commission, said Mr Bungey.

We have carefully considered all of the written submissions and the submissions made bythe parties who appeared at the special hearing and we respond to them as follows.

Earlier in these Reasons for Decision, we described the reasons why COG decided that thepublic hearing should be held as part of its inquiry into issues raised by the applicationfrom the Premier. We observed that we were obliged by Section 5(a) to inquire intomatters specified in Schedule 1 to the Act; that we may inquire into other matters whichhad not been specified if we consider they are relevant to the prevention of corrupt, illegalor improper conduct involving public officials; and finally, that we may inquire into anymatter we consider pertinent to matters which are either before us under Section 5(a) ofthe Act, that is ‘specified’ matters, or matters before us under Section 5(b), that is ‘other’matters.

Schedule 1 to the Act sets out the Specified Matters. Among them are:

7. The necessity and framework for legislation governing monitoring,control and Parliamentary scrutiny of State-owned companies,trading enterprises, partnerships and statutory authorities.

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11. The legislative and other measures that should be taken -

(a) to facilitate the making and the investigation of whistleblowingcomplaints;

(b) to establish appropriate and effective protections forwhistleblowers; and

(c) to accommodate any necessary protection for those againstwhom allegations are made.

13. The appropriate role, powers and functions of the OfficialCorruption Commission for the prevention and exposure ofimpropriety or corruption within the public sector withconsideration given to the respective roles of other agencies andlegislation.

Under the Parliamentary Commissioner Act 1971, the Ombudsman shall:

Investigate any decision or recommendation made, or any act done oradmitted, that relates to a matter of administration and effects any personor body of persons in his or its personal capacity in or by any governmentdepartment or other authority to which this Act applies in the exercise ofany power or function.

(s.14[1])

The departments and authorities to which the section applies are as specified in theSchedule to the Parliamentary Commissioner Act 1971. In the performance of hisfunction, the Ombudsman is obliged to take certain specified actions including reporting tothe Premier and each House of the Parliament where he is of the opinion that the action towhich the investigation relates:

(a) appears to have been taken contrary to law;

(b) was unreasonable, unjust, oppressive or improperly discriminatory;

(c) was in accordance with a rule of law or a provision of an enactmentor a practice that is or may be unreasonable, unjust, oppressive, orimproperly discriminatory;

(d) was taken in the exercise of a power or discretion, and was so takenfor an improper purpose or on irrelevant grounds, or on the takinginto account of irrelevant considerations;

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(e) was a decision that was made in the exercise of power or discretionand the reasons for the decision were not, but should have beengiven;

(f) was based wholly or partly on a mistake of law or fact; or

(g) was wrong ...

It is our view that inquiries into Specified Matters 7 and 13 of Schedule 1 to the Act wouldinvolve, as an incident of those inquiries, inquiries not merely into the jurisdiction of theOmbudsman but of his entire role and function under the Parliamentary CommissionerAct. For instance, under Specified Matter 7 the ‘necessity ... for legislation ..., control andParliamentary scrutiny of ... statutory authorities’ could not be properly undertakenwithout a detailed consideration of the adequacy of the relevant existing legislation, inparticular, the Parliamentary Commissioner Act 1971 and the Ombudsman’s jurisdictionthereunder. The same can be said for Specified Matter 13 which directs the Commission toconsider, in relation to the appropriate role of the Official Corruption Commission ‘therespective roles of other agencies and legislation’. That, too, necessarily includes adetailed consideration of the Parliamentary Commissioner Act 1971, including the extentof the Ombudsman’s jurisdiction.

It is our view that there is more than adequate scope within Specified Matters 7, 11 and 13to enable us to properly inquire into and make recommendations concerning thejurisdiction of the Ombudsman. We are entitled under Section 5 of the Act to makeinquiries and recommendations in circumstances where those matters would be a properincident of the inquiries and recommendations concerning Specified Matters 7, 11 and 13.In our view, on the basis of the submissions we have received and the views that we haveexpressed above, such an inquiry into the Ombudsman’s jurisdiction is properly incidentaland it is appropriate for COG to make inquiries and recommendations concerning thejurisdiction of the Ombudsman. Because of this finding, we do not think it necessary tospecifically add the issue of the Ombudsman’s jurisdiction as an isolated and discretematter. This is because there is a close inter-relationship between that question and theSpecified Matters of inquiry we have identified above. We advise that if similarcircumstances occur in the future, we will apply the criteria we have identified in theReasons for Decision. We have concluded that, generally, it will not be appropriate for usto add a new matter as a Specified Matter under Section 5(c) when it is clearly related tomatters into which we are directed by our Act to inquire.

We acknowledge and accept the submission of Mr Rowe on behalf of the Premier, thatCOG has a wide brief to inquire into the Specified Matters and matters related to them. Wealso agree with the submission that there is a close inter-relationship between a number ofthe Specified Matters. We reiterate our conclusion that we do not intend to add thejurisdiction of the Ombudsman as a discrete matter to our Specified Matters as there isadequate scope for inquiry already under Specified Matters 7, 11 and 13. We will, for

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convenience, report upon our inquiries into the role, function, purpose and jurisdiction ofthe Ombudsman as a sub-part of our inquiries under Specified Matter 7. We will deal withSpecified Matter 7 in Phase 3 of our inquiries which will commence in September 1995.

Appearances: Mr P. Rowe appeared on behalf of the Premier.Mr G. Hickey appeared on behalf of Suicide Research and Prevention.Mr K. Moran appeared on behalf of Community Action Legislation Lobby.Mr M. Bungey appeared on his own behalf.

J F GregorCHAIRPERSON

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APPENDIX 2

REFERENCES: CHAPTERS 6, 7 AND 8(SPECIFIED MATTER 10)

Allen, R.E. (editor) (1990) The Concise Oxford Dictionary of Current English Oxford:Clarendon Press

Atkinson, M. and Maureen Mancuso (1985) ‘Do We Need a Code of Conduct for Politicians?The Search for an Elite Political Culture of Corruption in Canada’ Canadian Journal ofPolitical Science xviii: 459-480

Australian Capital Territory, Legislative Assembly Standing Committee on Administrationand Procedures (1991) Inquiry into the Proposed Ethics Committee Code of ConductAustralian Capital Territory

Baxter, K.P. (1991) ‘Politicisation – Responsiveness’ Australian Journal of PublicAdministration 50: 279-284

Bowman, James S. (1981) ‘The Management of Ethics: Code of Conduct in Organisations’Public Personnel Management Journal 10(1): 59-66

Bruce, Hon. Gordon (1993) Twenty-Fourth Regional Conference of Presiding Officers andClerks Port Vila, Vanuatu

Bunn, David (1990) ‘Ethics: The Impact on Employees’ in Wiltshire and Story (1990)

Busselton Panel of Inquiry (1992) Report into the Busselton Shire Council 1988-1992

Caiden, Gerald E. (1981) ‘Ethics in the Public Service: Codification Misses the Real Target’Public Personnel Management Journal 10 (1): 146-152

Campbell, Colin S.J. (1993) ‘Public Service and Democratic Accountability’ in Chapman(1993)

Chapman, Richard A. (1993a) ‘Ethics in Public Service’ in Chapman (1993)

Chapman, Richard A. (1993b) ‘Introduction’ in Chapman (1993)

Chapman, Richard A. (editor) (1993) Ethics in Public Service Edinburgh: EdinburghUniversity Press

342


City of Canning Panel of Inquiry (1991) Report of the Panel of Inquiry Concerning theCouncil of the City of Canning Perth

Commonwealth of Australia, Committee of Inquiry Established by the Prime Minister(Bowen Committee) (1979) Report on Public Duty and Private Interest Canberra: AustralianGovernment Publishing Service

Commonwealth of Australia, Parliamentary Working Group (Cwlth of AustraliaParliamentary Working Group) (1995) A Framework of Ethical Principles for Members andSenators – Draft Canberra

Commonwealth of Australia, Parliamentary Working Group (1995) Framework of EthicalPrinciples for Presiding Officers and Ministers – Draft Canberra

Commonwealth of Australia, Public Service Commission (Cwlth of Australia Public ServiceCommission) (1995) Official Conduct: Guidelines on Official Conduct of CommonwealthPublic Servants Canberra: AGPS

Denhardt, Kathryn G. (1991) ‘Ethics and Fuzzy Worlds’ Australian Journal of PublicAdministration 50: 274-278

Department of the Prime Minister and Cabinet (1995) Report of Inquiry into the Conduct of AMinister Canberra: Department of the Prime Minister and Cabinet

Enfield, John (1988) ‘Ethics, Fraud and the Public Service’ Canberra Bulletin of PublicAdministration 56: 34-37

Farina, Cynthia (1993) ‘Keeping Faith: Government Ethics and Government EthicsRegulation’ Administrative Law Review Summer: 287-341

Finn, Paul (1990) ‘Integrity in Government and the Law’ in Wiltshire and Story (1990)

Finn, Paul (1993a) ‘Public Trust and Accountability’ Australian Quarterly 65 (2): 50-59

Finn, Paul (1993b) ‘The Law and Officials’ in Chapman (1993)

Hughes, Colin A. (1990) ‘Codes of Conduct’ in Wiltshire and Story (1990)

Industry Task Force on Leadership and Management Skills (Karpin Report) (1995)Enterprising Nation: Renewing Australia’s Managers to Meet the Challenges of the Asia-Pacific Century Canberra: AGPS

Institute of Municipal Management (IMM) (1995) Disciplinary Procedure By-Laws

343


Jackson, M.W. (1988) ‘The Public Interest, Public Service and Democracy’ AustralianJournal of Public Administration September (3): 241-251

Jackson, Michael (1990) ‘Immorality May Lead to Greatness: Ethics in Government’ in ScottPrasser, Rae Wear and John Nethercote (editors) Corruption and Reform: The FitzgeraldVersion St Lucia: University of Queensland Press

Kernaghan, Kenneth and John W. Langford (1991) The Responsible Public Servant SouthHalifax: The Institute for Research on Public Policy

Kernaghan, Kenneth (1993) ‘Promoting Public Service Ethics: The Codification Option’ inChapman (1993)

Kyle, P.A. (1992a) Inquiry into the City of Wanneroo Perth: Department of LocalGovernment

Kyle, P.A. (1992b) Wanneroo, Canning, Busselton – Have We Gone Wrong? Role of theTown/Shire Clerk/C.E.O Address to the Institute of Municipal Management Perth

Kyle, P.A. (1994) Inquiry into the Shire of Boddington Perth: Department of LocalGovernment

Lawson, Robert (1995) Codes of Conduct for Members of Parliament Paper DeliveredDarwin Conference

Malcolm, David (1993) In Search of Business Ethics Paper presented at the Inaugural HarrySorenson Business Ethics Lecture on 10 August 1993 Curtin University of Technology

McHugh, Peter J. (1993) ‘Training for Members of Parliament’ 24th Conference ofPresiding Officers and Clerks Port-Vila, Vanuatu

National Police Research Unit, Mark G. Frank, Kevin M. McConkey, Gail F. Huon and BerylL. Hesketh (National Police Research Unit) (1995) Individual Perspectives on Police Ethics:Ethics and Policing - Study 2 Payneham: National Police Research Unit

New South Wales, Department of Local Government and Co-operatives (NSW DLG) (1994)Code of Conduct

New South Wales, Independent Commission Against Corruption (ICAC) (1991) Report onInvestigation Concerning Neal and Mochalski Sydney

New South Wales, Independent Commission Against Corruption (ICAC) (1992) Report onInvestigation into Local Government, Public Duties and Conflicting Interests

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New South Wales, Parliament of New South Wales Committee on the IndependentCommission Against Corruption (1994) Discussion Paper on Pecuniary Interest Provisionsfor Members of Parliament and Senior Executives and a Code of Ethics for Members ofParliament Sydney

Parliament of Tasmania, House of Assembly Select Committee on Reform of Parliament(Parliament of Tasmania) (1994) Report (No. 14) Tasmania

Peachment, Alan (1994) ‘WA Inc: Failure of the system or crime of the employee?’ in MarkBrogan and Harry Phillips (editors) Past as Prologue: The Royal Commission intoCommercial Activities of Government and Other Matters: Proceedings from a conference onthe Part II Report of the Royal Commission and the reform of government in WesternAustralia Perth: Edith Cowan University

Preston, Noel (1994) ‘Introduction’ in Preston (1994)

Preston, Noel (editor) (1994) Ethics for the Public Sector: Education and TrainingLeichhardt: Federation Press

Queensland, Electoral and Administrative Review Commission (EARC) (1991) Issues PaperNo. 15 Codes of Conduct for Public Officials Brisbane

Queensland, Electoral and Administrative Review Commission (EARC) (1992) Report onthe Review of Codes of Conduct for Public Officials Brisbane

Queensland, Parliamentary Committee for Electoral and Administrative Review (PCEAR)(1993) Report on Codes of Conduct for Public Officials Brisbane

Queensland (1988) Queensland Code of Conduct for Officers in the Queensland PublicService Brisbane: Queensland Government Printer

Queensland, Commission of Inquiry Pursuant to Orders in Council (Fitzgerald Inquiry) (1989)Report Brisbane

Royal Australian Institute of Public Administration (RAIPA) (1965) ‘Draft of a Code ofEthics for Public Servants’ in Proceedings of Royal Institute of Public AdministrationConference

Royal Institute of Public Administration Australia (RIPAA) (1994) Ethics Education andTraining Guide

Sampford, Charles (1994) ‘Institutionalising Public Sector Ethics’ in Preston (1994)

United Kingdom, Committee on Standards in Public Life (Nolan Committee) (1995)‘Standards in Public Life’ Volume 1: Report London: HMSO

345


Warhurst, John (1996) ‘Politicians and Citizens: Roles and Responsibilities’ Catholic SocialJustice Series No. 27 North Sydney: Australian Catholic Social Justice Council

Western Australia, Commission on Government (COG) (1995a) Report No. 1 Perth

Western Australia, Commission on Government (COG) (1995b) Discussion Paper No. 9Perth

Western Australia, Commission on Government (COG) (1995c) Report No. 2, Part 1 Perth

Western Australia, Commission on Government (COG) (1995d) Report No. 2, Part 2 Perth

Western Australia, Commission on Government (COG) (1995e) Discussion Paper No. 13Perth

Western Australia, Department of Local Government (WA DLG) (1994a) Problems to Avoid:Outcomes of Recent Investigations into Local Government Perth: Department of LocalGovernment

Western Australia, Department of Local Government (WA DLG) (1994) Standing forCouncil: A Guide for Local Government Election Candidates Perth: Department of LocalGovernment

Western Australia, Department of Local Government (WA DLG) (1995) Local Governmentin Western Australia: A Councillor’s Guide Perth: Department of Local Government

Western Australia, Ministry of Premier and Cabinet (1994) Cabinet Handbook Perth

Western Australia, Parliamentary Standards Committee (Beazley Committee) (1989) Reportof the Parliamentary Standards Committee Perth

Western Australia, Premier (WA Premier) (1994) To Chief Executive Officers: ImprovingCustomer Service in the Public Sector Perth

Western Australia, Public Service Commission, (PSC) (1991) Circular to Chief ExecutiveOfficers No. 9 of 1991: Code of Conduct – Conflict of Interest Provisions

Western Australia, Public Service Commission, (PSC) (1994) Code of Ethics for the WesternAustralian Public Sector and Guidelines (Draft)

Western Australia, Public Service Commission (PSC) (1988) Rights, Responsibilities andObligations: A Code of Conduct for Public Servants Perth

Western Australia, Royal Commission into Commercial Activities of Government and OtherMatters (WA Royal Commission) (1992) Report Part II, Perth

346


Western Australia, Royal Commission into Use of Executive Power (Easton RoyalCommission) (1995) Report Perth

Western Australia, State Supply Commission (WA State Supply Commission) (1992) SupplyPolicy Manual Perth: SSC

Western Australian Municipal Association (WAMA) (1995) Draft Model Code of Conductfor Elected Members and Staff Perth: WAMA

Western Australian Municipal Association (WAMA) (1996) Western Councillor – Rejiggingthe Jigsaw Perth: WAMA

Whitton, Howard (1994) ‘The Rediscovery of Professional Ethics for Public Officials: AnAustralian Review’ in Preston (1994)

Wiltshire, Kenneth and J.D. Story (editors) (1990) Do Unto Others: Ethics in the PublicSector Proceedings of a Seminar Royal Institute of Public Administration Australia(Queensland Branch)

Zimmerman, J.F. (1982) ‘Ethics in Local Government’ Planning and Administration 9 (1):33-45

LEGISLATION

Commission on Government Act 1994Constitution Act 1889Constitution Acts Amendment Act 1899Criminal CodeElectoral Act 1907Electricity Corporation Act 1994Freedom of Information Act 1992Gas Corporation Act 1994Governor’s Establishment Act 1992Independent Commission Against Corruption (Amendment) Act 1994 (NSW)Industrial Relations Act 1979Local Government Act 1960Local Government Act 1993 (NSW)Local Government Act 1995Members of Parliament (Financial Interests) Act 1992Members of Parliament (Register of Interests) Act 1978 (Vic.)Official Corruption Commission Act 1988Parliamentary and Electorate Staff (Employment) Act 1992Parliamentary Privileges Act 1891Police Act 1892Public Sector Ethics Act 1994 (Qld)Public Sector Management Act 1994

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Public Sector Management Act 1994: Public Sector Management (General) Regulations 1994Salaries and Allowances Act 1975

CASES

Nationwide News v Wills (1992) 108 ALR 681

SUBMISSIONS

Aboriginal Legal Service (1996) Submission Number 960106Anderson, J.N. (1995) Submission Number 960146Australian Democrats (1995) Submission Number 953767Blight, D.G. (1995) Submission Number 953775Clements, D. (1995) Submission Number 953622Comparti, A. (1995) Submission Number 960338Constable, E. (1995) Submission Number 953830Department of Local Government (1995) Submission Number 953732Director of Public Prosecutions (1995) Submission Number 952577Eadie, R. (1995) Submission Number 953825Eadie, R. (1995) Submission Number 953829Kean, R. (1995) Submission Number 953756Kelly, D. (1995) Submission No. 960562Knox, J.E. (1995) Submission Number 960041Le Cordier, H. (1995) Submission Number 953674Mottram, A. (1995) Submission Number 960192Stein, E. (1995) Submission Number 953828Strickland, R. (1995) Submission Number 953685Western Australian Municipal Association (1996) Submission Number 960373

TRANSCRIPTS

Bates (1.2.96) Moora Public Seminar TranscriptBlight, D. (7.12.95) Perth Public Hearing TranscriptCock, R. (12.12.95) Perth Public Hearing TranscriptConstable, E. (12.12.95) Perth Public Hearing TranscriptCollier, B. (13.12.95) Perth Public Hearing TranscriptCollins, A. (31.1.96) Bunbury Public Seminar TranscriptCutting, M. (7.6.96) Manjimup Public Seminar TranscriptGamble, G. (15.2.96) Merredin Public Seminar TranscriptHyde, J. (21.11.95) Perth Public Seminar TranscriptMcKechnie, J. (6.12.95) Perth Public Hearing TranscriptMilton-Smith, J. (13.10.95) and (8.12.95) Perth Public Hearing TranscriptMurray, A. (8.12.95) Perth Public Hearing TranscriptPearson, D. (14.12.95) Perth Public Hearing TranscriptPettitt, J. (15.2.96) Karratha Public Seminar TranscriptWatts, G. (8.2.96) Derby Public Seminar Transcript

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Wilson, K. (6.12.95) Perth Public Hearing TranscriptWood, M. (6.12.95) Perth Public Hearing Transcript

MINISTERIAL AND AGENCY CORRESPONDENCE

Coffey, R.F. (1995) Correspondence Number 952822Donohoe, K. (1995) Correspondence Number 952724Keeffe, G.L. (1995) Correspondence Number 952542Mackaay, J. (1995) Correspondence Number 952707Metcalf, L.L. (1995) Correspondence Number 952602Shire of Cranbrook (1995) Correspondence Number 952406Tindale, S. (1995) Correspondence Number 952493Town of Claremont (1995) Correspondence Number 952608Vaughan, D. (1995) Correspondence Number 952781

REFERENCES: CHAPTER 9(SPECIFIED MATTER 14)

Coghill, K. (1993) ‘Parliamentary Reform – Mixed Results in Victoria’ TheParliamentarian LXXIV (3): 140-42

Commonwealth of Australia, Department of the Parliamentary Library (1995)Department of the Parliamentary Library Annual Report 1994/5 Canberra: AGPS

Commonwealth of Australia, Senate Select Committee on Parliament’s Appropriationsand Staffing (Jessop Report) (1981) Report Canberra: AGPS

Cope, R.L. (1992) ‘Myths and Realities of Administering Australian Parliaments.Comments on the Foley-Russell Report’ Legislative Studies 7(1): 42-52

Erskine May (1989) Parliamentary Practice (21st edition) London: Butterworths

Evans, Harry (editor) (1995) Odgers’ Australian Senate Practice (7th edition) Canberra:AGPS

Foley, Kevin J. and Bill Russell (1991) Strategic Management Review of the Parliamentof Victoria Melbourne: Government Printer

Garrett, John (1992) Westminster. Does Parliament Work? London: Victor Gollancz

Griffith, J.A.G. and Michael Ryle (1989) Parliament, Functions, Practice and ProceduresLondon: Sweet & Maxwell

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Moore, Tim and Roger Wilkins (1992) Report on Managing the Parliament Sydney:Government Printer

Murray, Philomena (1989) Comparative Analysis of Parliamentary AdministrationsMelbourne: University of Melbourne

Pettifer, J.A. (1981) House of Representatives Practice Canberra: AGPS

Reid, G.S. and Martyn Forrest (1989) Australia’s Commonwealth Parliament 1901-1988:Ten Perspectives Melbourne: Melbourne University Press

Victoria, Joint Select Committee on the Parliament of Victoria (1991) Progress Reportupon the Budget Process for Parliament Melbourne

Western Australia, Commission on Government (COG) (1995a) Report No. 1 Perth

Western Australia, Commission on Government (COG) (1995b) Discussion Paper No.12:Financial Independence of Parliament Perth

Western Australia, Joint House Committee (Joint House) (1986) Rules Relating to theControl and Management of Parliament House Perth

Western Australia, Legislative Assembly Standing Orders of the Legislative AssemblyPerth

Western Australia, Legislative Council Standing Committee on Estimates and FinancialOperations (1994) 10th Report – Performance Indicators Perth

Western Australia, Legislative Council Standing Committee on Estimates and FinancialOperations (1995) 14th Report – Consolidated Fund Estimates 1995/6 Perth

Western Australia, Office of the Auditor General (WA OAG) (1994) Special Report:Report No. 7: Public Sector Performance Indicators 1993-94

Western Australia, Office of the Auditor General (WA OAG) (1995) ParliamentarySurvey (Unpublished)

Western Australia, Royal Commission into Commercial Activities of Government andOther Matters (WA Royal Commission) (1992) Report Part II Perth

Western Australian Government (Capital Works) (1995) 1995/6 Capital Works Program,Budget Paper No. 3

23rd Presiding Officers’ and Clerks’ Conference (1992) Adelaide

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CORRESPONDENCE

Chamberlain, B. (1995) Correspondence Number 953827

LEGISLATION

Commission on Government Act 1994Constitution Act 1975 (Vic.)Constitution Acts Amendment Act 1899Financial Administration and Audit Act 1985House of Commons (Administration) Act 1978 (UK)Treasurer’s Instructions

SUBMISSIONS

Australian Democrats (1995) Submission Number 953834Langoulant, J.L. (1996) Submission Number 960293Martin, M.J. (1995) Submission Number 953619Pearson, D.D.R. (1995) Submission Number 953738Tonks, A.E. (1995) Submission Number 953760Trenorden, M. (1995) Submission Number 953824Webb, M. (1995) Submission Number 953861

TRANSCRIPTS

Constable, Dr E. (12.12.95) Perth Public Hearing TranscriptGriffiths, Hon. C. (11.12.95) Perth Public Hearing TranscriptMacKinnon, B. (15.12.95) Perth Public Hearing TranscriptMarquet, L. (21.12.95) Perth Public Hearing TranscriptMurray, A. (15.12.95) Perth Public Hearing TranscriptParke, R. (7.2.96) Manjimup Public Hearing TranscriptPearson, D.D.R. (14.12.95) Perth Public Hearing TranscriptRutherford, A. (14.12.95) Perth Public Hearing TranscriptSmith, A. (21.2.96) Geraldton Public Hearing TranscriptTrenorden, M. (15.12.95) Perth Public Hearing TranscriptWalsh, P. (28.11.95) Perth Public Seminar Transcript

351


APPENDIX 2A

PUBLIC SECTOR MANAGEMENT ACT 1994

SCHEDULE 2

[section 3 and 108]

ENTITIES WHICH ARE SES ORGANIZATIONS * [for the purpose of the PSM Act]

Column 1 Column 2Item Entity

1 Albany Port Authority, constituted under the Albany Port Authority Act 1926

2 Animal Resources Authority, established by the Animal Resources Authority Act1981

3 Bunbury Port Authority, constituted under the Bunbury Port Authority Act 1909

3a Bush Fires Board, constituted under the Bush Fires Act 1954

4 Country High School Hostels Authority, established under the Country HighSchool Hostels Authority Act 1960

5 Commissioner of Main Roads, appointed under the Main Roads Act 1930

6 Dairy Industry Authority of Western Australia, established under the DairyIndustry Act 1973

7 Dampier Port Authority, established under the Dampier Port Authority Act 1985

8 Disability Services Commission, continued under the Disability Services Act 1993

9 East Perth Redevelopment Authority, established under the East PerthRedevelopment Act 1991

10 Esperance Port Authority, established under the Esperance Port Authority Act1968

11 Fremantle Hospital Board, constituted under the Hospitals and Health ServicesAct 1927

12 Fremantle Port Authority, constituted under the Fremantle Port Authority Act1902

13 Gascoyne Development Commission, established under the RegionalDevelopment Commissions Act 1993

14 Geraldton Port Authority, established under the Geraldton Port Authority Act1968

15 Goldfields-Esperance Development Commission, established under the RegionalDevelopment Commissions Act 1993

16 Government Employees Superannuation Board, established under the GovernmentEmployees Superannuation Act 1987

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17 Great Southern Development Commission, established under the RegionalDevelopment Commissions Act 1993

18 Hedland College, established under the Colleges Act 1978

19 Herd Improvement Service of Western Australia, established under the HerdImprovement Service Act 1984

20 Kalgoorlie College, established under the Colleges Act 1978

21 Karratha College, established under the Colleges Act 1978

22 Keep Australia Beautiful Council (W.A.) established under the Litter Act 1979

23 Kimberley Development Commission, established under the RegionalDevelopment Commissions Act 1993

24 King Edward Memorial Hospital for Women Board, constituted under theHospitals and Health Services Act 1927

25 Kings Park Board, constituted under the Parks and Reserves Act 1895

26 Lotteries Commission, continued under the Lotteries Commission Act 1990

27 Metropolitan Cemeteries Board, established under the Cemeteries Act 1986

28 Metropolitan (Perth) Passenger Transport Trust, constituted under theMetropolitan (Perth) Passenger Transport Trust Act 1957

29 Mid West Development Commission, established under the RegionalDevelopment Commissions Act 1993

30 Minerals and Energy Research Institute of Western Australia established under theMinerals and Energy Research Act 1987

31 Nurses Board of Western Australia, established under the Nurses Act 1968

32 Peel Development Commission, established under the Regional DevelopmentCommissions Act 1993

33 Perth Dental Hospital Board, constituted under the Hospitals and Health ServicesAct 1927

34 Perth Market Authority, preserved and continued under the Perth Market Act 1926

35 Perth Theatre Trust, established under the Perth Theatre Trust Act 1979

36 Pilbara Development Commission, established under the Regional DevelopmentCommissions Act 1993

37 Princess Margaret Hospital for Children Board, constituted under the Hospitalsand Health Services Act 1927

37A Port Hedland Port Authority, established by the Port Hedland Port Authority Act1970

38 Pundulmurra College, established under the Colleges Act 1978

39 Rottnest Island Authority, established under the Rottnest Island Authority Act1987

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40 Royal Perth Hospital Board, constituted under the Hospitals and Health ServicesAct 1927

41 Rural Adjustment and Finance Corporation of Western Australia, preserved andcontinued under the Rural Adjustment and Finance Corporation Act 1993

42 Secondary Education Authority, established under the Secondary EducationAuthority Act 1984

43 Sir Charles Gairdner Hospital Board, constituted under the Hospitals and HealthServices Act 1927

44 Small Business Development Corporation, established under the Small BusinessDevelopment Corporation Act 1983

45 South West Development Commission, established under the RegionalDevelopment Commissions Act 1993

46 State Government Insurance Commission, established under the State GovernmentInsurance Commission Act 1986

47 State Housing Commission, continued under the Housing Act 1980

47A State Supply Commission established under the State Supply Commission Act1991

47B Subiaco Redevelopment Authority, established under the Subiaco RedevelopmentAct 1994

48 The Agriculture Protection Board of Western Australia, constituted under theAgriculture Protection Board Act 1950

49 The Board of the Art Gallery of Western Australia, referred to in the Art GalleryAct 1959

50 The Library Board of Western Australia, constituted under the Library Board ofWestern Australia Act 1951

51 The National Trust of Australia (W.A.), established under the National Trust ofAustralia (W.A.) Act 1964

[52 deleted]

53 The Western Australian Government Railways Commission, constituted under theGovernment Railways Act 1904

54 The Western Australian Museum, constituted under the Museum Act 1969

55 Totalisator Agency Board, constituted under the Totalisator Agency Board BettingAct 1960

56 Water Authority of Western Australia, established under the Water Authority Act1984

57 Waterways Commission, established under the Waterways Conservation Act 1976

58 Western Australian Alcohol and Drug Authority, established under the Alcoholand Drug Authority Act 1974

[59 deleted]

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60 Western Australian Fire Brigades Board, constituted under the Fire Brigades Act1942

61 Western Australian Land Authority, established under the Western AustralianLand Authority Act 1992

62 Western Australian Meat Commission, constituted under the Abattoirs Act 1909

63 Western Australian Tourism Commission, established under the WesternAustralian Tourism Commission Act 1983

64 Wheatbelt Development Commission, established under the RegionalDevelopment Commissions Act 1993

65 Workers’ Compensation and Rehabilitation Commission, continued under theWorkers’ Compensation and Rehabilitation Act 1981

66 Zoological Gardens Board, established under the Zoological Gardens Act 1972

[Schedule 2 amended by No. 89 of 1994; No. 97 of 1994 s.16; No. 103 of 1994 s.18 and in Gazettes 9December 1994 p.6716; 23 December 1994 p.7122; 7 February 1995 p.423.]

*s.3 “SES organization” means entity which consists of –

(a) a body, whether corporate or unincorporate, or the holder of an office, post or position,being a body or office, post or position –

(i) established or continued for a public purpose under a written law; and

(ii) specified in column 2 of Schedule 2;

and

(b) persons employed by or for the purposes of that body or holder under that written lawor another written law

355


APPENDIX 2BPUBLIC SECTOR MANAGEMENT ACT 1994

Sch. 1

SCHEDULE 1

ENTITIES WHICH ARE NOT ORGANIZATIONS *

Column 1 Column 2Item Entity

1 The Governor’s Establishment referred to in the Governor’s Establishment Act1992

2 A department of the staff of Parliament referred to in the Parliamentary andElectorate Staff (Employment) Act 1992

3 The electorate office of a member of Parliament

4 Any court or tribunal established or continued under a written law and any judge orofficer exercising a judicial function as a member of that court or tribunal

5 The Police Force within the meaning of the Police Act 1892

6 Curtin University of Technology established under the Curtin University ofTechnology Act 1966

7 Edith Cowan University established under the Edith Cowan University Act 1984

8 Murdoch University established under the Murdoch University Act 1973

9 The University of Notre Dame established under the University of Notre DameAustralia Act 1989

10 The University of Western Australia established under the University of WesternAustralia Act 1911

11 Gold Corporation and Goldcorp Australia established under the Gold CorporationAct 1987 and the Mint within the meaning of that Act

12 R & I Holdings within the meaning of the R & I Bank Act 1990

13 The R & I Bank of Western Australia Ltd within the meaning of the R & I Bank Act1990

14 SGIO Insurance Limited established under the SGIO Privatisation Act 1992

15 Any municipality or regional council established under the Local Government Act1960

16 Gas Corporation established by the Gas Corporation Act 1994

17 Electricity Corporation established by the Electricity Corporation Act 1994

18 Western Australian Treasury Corporation established by the Western AustralianTreasury Corporation Act 1986

19 Western Australian Greyhound Racing Association established by the WesternAustralian Greyhound Racing Association Act 1981

* For the purpose of the PSM Act.

356

Appendix 3References: Chapters 10 and 11

APPENDIX 3


Bradshaw, Kenneth and David Pring (1972) Parliament & Congress London: Constable& Co

Commonwealth of Australia (1976) Australian Government Administration: Report of theRoyal Commission Parliamentary Paper No. 185/1976, Canberra: AGPS

Commonwealth of Australia, Department of Prime Minister and Cabinet (1987) AnnualReport 1986/1987 Canberra: AGPS

Commonwealth of Australia, Department of Prime Minister and Cabinet (1994) CabinetHandbook Canberra: AGPS

Commonwealth of Australia, Public Service Commission (1995) Official Conduct:Guidelines on Official Conduct of Commonwealth Public Servants Canberra: AGPS

Griffith, J. A. G. , M. Ryle & M. A. Wheeler-Booth (1989) Parliament: Functions,Practices & Procedures London: Street & Maxwell

Hasluck, Sir Paul (1979) The Office of the Governor-General Melbourne: MelbourneUniversity Press

Lindell, G. F. (1988) ‘Current Topics: Executive Actions and Appointments Following aDissolution of Parliament’ The Australian Law Journal 62: 321-322

Lloyd, C. J. & G. S. Reid (1974) Out of the Wilderness: The Return of Labor Melbourne:Cassell Australia

Queensland, Cabinet Office (1992) Cabinet Handbook Brisbane: QueenslandGovernment

South Australia, Department of the Premier and Cabinet (1994) Cabinet HandbookAdelaide: South Australian Government

Stevens, Bron and John Wanna (eds) (1993) The Goss Government: Promise andPerformance of Labor in Queensland Melbourne: Macmillan

357


Van Raalte, E. (1959) The Parliament of the Kingdom of the Netherlands London: TheHansard Society for Parliamentary Government

Whip, Rosemary and Colin A. Hughes (eds) (1991) Political Crossroads: The 1989Queensland Election St Lucia: University of Queensland Press

LEGISLATION

Constitution Acts 1867-1982 (Canada)

SUBMISSIONS

Anderson, J. N. (1996), Submission Number 960146Australian Democrats (1995), Submission Number 953852Cowan, H. (1996), Submission Number 960508Girvan, O. (1995), Submission Number 953630Knox, J. (1996), Submission Number 960166MacKinnon, B. (1995), Submission Number 953757National Council of Women of Western Australia (1996), Submission Number 960224Pearson, D. (1995), Submission Number 953739Robinson, D. (1995), Submission Number 953698

TRANSCRIPTS

Bates, (1.2.96), Moora public seminarMacKinnon, B. (15.12.95), Perth public hearingMacKinnon, B. (28.11.95), Perth public seminarMarquet, L. (13.12.95), Perth public hearingMurray, A. (15.12.95), Perth public hearingPearson, D. (14.12.95), Perth public hearingWauchope, M. (13.12.95), Perth public hearing


Advertising Standards Council (ASC) (1993) Seventeenth Report Sydney

Advertising Standards Council (ASC) (1994) Eighteenth Report Sydney

Commonwealth of Australia, Office of Government Information and Advertising (OGIA)(1995) Guidelines for Australian Government Information Activities Principles andProcedures Canberra: Department of Administrative Services

358


Electoral and Administrative Review Commission (EARC) (1992) Issues Paper No. 19Review of Government Media and Information Services March 1992 Brisbane

New South Wales, Audit Office (NSW) (1995) Performance Audit Report GovernmentAdvertising Sydney: NSW Audit Office

Parliamentary Committee for Electoral and Administrative Review (PCEAR)(1994)Report on Government Media and Information Services Legislative Assembly ReportNo. 22 April 1994 Brisbane

Western Australia, Office of the Auditor General (OAG) (1993) Public Sector Travel,Corporate Card, Main Roads, Properties, Mining Royalties, Financial Administration andManagement Effectiveness Examination Report No. 4 November 1993 Perth

Western Australia, Office of the Auditor General (OAG) (1995) PerformanceExamination Public Sector Travel 1995, Corporate Card, Cabcharge Facilities ReportNo. 7 September 1995 Perth

Western Australia, Royal Commission into Commercial Activities of Government andOther Matters (WA Royal Commission) (1992) Report Part II, Perth

LEGISLATION

Broadcasting Services Act 1992 (Cwlth)Commonwealth Electoral Act 1918Electoral Act 1985 (SA)Electoral Act 1907Financial Administration and Audit Act 1985Government Publicity Control Bill 1995 (NSW)Members of Parliament (Register of Interests) Act 1983 (SA)Political Broadcasts and Political Disclosures Act 1991 (Cwlth)Salaries and Allowances Act 1975Trade Practices Act 1974 (Cwlth)

CASES

Australian Capital Television Pty Ltd v Commonwealth of Australia (1992) 108 ALR 577:177 CLR 106

SUBMISSIONS

Advertising Federation of Australia (1996) Submission Number 960466Anderson, J.N. (1996) Submission Number 960146Australian Democrats (1995) Submission Number 953852

359


Knox. J.E. (1996) Submission Number 960166Lawrence and Howell (1995) Submission Number 953879Le Cordier, H. (1996) Submission Number 960020MacKinnon, B. (1995) Submission Number 953757Mottram, A. (1996) Submission Number 960189National Council of Women of Western Australia (1996) Submission Number 960224Pearson, D. (1995) Submission Number 953739

TRANSCRIPTS

Bates (1.2.96) Moora Public SeminarBush, K. (28.11.95) Perth Public SeminarCollier, B. (13.12.95) Perth Public HearingEvans, J. (15.12.95) Perth Public HearingLamb, (1.2.96) Moora Public SeminarMacKinnon, B. (15.12.95) Perth Public HearingMacKinnon, B. (28.11.95) Perth Public SeminarMarquet, L. (13.12.95) Perth Public HearingO’Dwyer, P. (8.2.96) Derby Public SeminarPearson, D. (14.12.95) Perth Public HearingToose, Hon. P.B. (12.12.95) Perth Public HearingHarcourt, C. (12.12.95) Perth Public HearingWauchope, M. (13.12.95) Perth Public Hearing

360


APPENDIX 3A

Circular to all Ministers and CEO’s No 1/93

Electoral Amendment (Political Finance) Act 1992

This Act, an amended government Bill, was passed by the Parliament late in the 1992Session. It is principally concerned with the disclosure of donations by political parties.However, if proclaimed it would insert provisions in the Electoral Act 1907 which wouldrestrict government advertising for the last six months of each term of government, andrestrict travel by Members of Parliament during the course of Elections.

While the travel restrictions pose no real difficulties apart from some inconvenience,Crown Law advice indicates that the publication and advertising restrictions, as presentlydrafted, would prevent a great number of agencies from carrying out many of theirordinary functions. A copy of that advice is attached. It should be read in the light of thefact that the sanction under the provision is criminal charges against the public officersinvolved, whatever their level. The penalties range from substantial fines to imprisonment.

I have therefore decided that the Act will not be proclaimed for the time being.

The purpose of this circular, however, is to instruct agencies that they are to adhere to thespirit of the legislation for the duration of the Election Campaign this year. Ministers andgovernment members will also be required to adhere to the travel restrictions.

Travel

Apart from normal travel to and from and within their own electorates, no Minister (orGovernment Member of Parliament) may travel by air at Government expense exceptmyself and the Deputy Premier.

Advertising

All Government advertising, except that commissioned by the State ElectoralCommission, is to be deferred from the date of the writs for the general election until afterthe close of polling on the designated Election Day. Exemptions may be allowed onapplication to the Executive Director of the Department of State Services in the followingcases:

• Advertising changes to statutes and delegated legislation;• Necessary advertising of commercial services provided by government agencies.

361


• Advertising of vacant positions or calling for expressions of interest in a publicoffice.

• Advertisements calling for tenders.• Advertisements relating to public inquiries.• Notices required pursuant to any statute.• Community service advertisements, the cancellation of which would be to the public

detriment.

Any advertisements which are exempted must strictly comply with the restrictions onpublications set out below. Agencies are advised to forward applications for considerationbefore Friday, 8th January 1993.

Publications

No Government agency may publish pamphlets, brochures, leaflets or reports whichadvocate or criticise the election policies of any political party. Publications should notpromote personally any politician or political candidate, including Ministers.

Should there be any doubt about whether a publication is admissible under theseguidelines, it should be referred to me through the relevant Minister. Agencies arerequested to urgently review all planned publications.

Duration of Restrictions

The travel, publication and advertising restrictions will commence from the day after thedate of issue of the writs for the general election and will apply until the close of pollingon the designated election day.

SignedPremier4 January 1993

362


Our Ref: 552/91

7 January 1993

CIRCULAR TO MINISTERS NO. 2/93

CARETAKER GOVERNMENT CONVENTIONS AND OTHER PRE-ELECTIONPRACTICES

As you are aware, I have today announced that a General Election will be held in WesternAustralia on 6 February 1993.

Following the dissolution of Parliament, the Government assumes a “caretaker” role. In ageneral sense the normal business of Government will continue during the caretakerperiod in so far as this applies to routine matters of administration.

I would, however, like to draw your attention to a number of Conventions and other Pre-election Practices which shall apply during the caretaker period. Detailed guidelines areattached for your attention.

Every endeavour should be made to ensure that the spirit of the conventions are observed.

I have also written to the Leader of the Opposition advising him that I will allowOpposition spokespersons access to public service departmental officers from today untilpolling day in accordance with the consultative process specified in the guidelines.

Please distribute copies of this Circular and Caretaker Guidelines immediately to allDepartments and Authorities under your control so that they are aware of the provisions.

SignedPREMIER

Att.

363


CARETAKER GOVERNMENT CONVENTIONS AND OTHER PRE-ELECTIONPRACTICES: GUIDELINES APPLYING IN WESTERN AUSTRALIA

Caretaker Government Conventions

1. It has been the practice for Federal and some State Governments to observe specialadministrative arrangements in the period immediately before an election. Byconvention, the Government assumes a caretaker role from the date of the issue ofwrits following the dissolution of the Legislative Assembly until the election result isclear, or in the event of a change of Government, until the new Government isformally appointed. In this period endeavours are made to ensure that decisions arenot taken which would bind the incoming Government and limit its freedom ofaction.

2. In essence, Caretaker Conventions generally apply in terms of the operations of theGovernment and Departments and are aimed, wherever possible, to avoid thefollowing:

(a) making appointments or significance.

(b) taking major policy decisions likely to commit an incoming Government(including implementing new policies or approving major projects withinGovernment programs).

(c) entering into major undertakings or contracts.

(d) involving departmental officers in election activities.

3. Appointments

(a) As a rule, senior or significant appointments dated to commence after pollingday would not be made in the caretaker period. Similarly, appointments ofsignificance due to take effect after the dissolution of the Legislative Assemblyshould be deferred until after the election.

(b) The Caretaker Conventions require a Government to avoid makingappointments of significance. Factors to be considered in deciding whether aparticular appointment is significant include the degree to which it may be amatter of disagreement between the major parties contesting the election andthe inherent importance of the position.

364


(c) Where the proper function of an agency requires a significant position to befilled, acting or short-term arrangements should be used during the caretakerperiod.

4. Contracts of Employment

During this period, no action in relation to contracts of employment should proceed.Where contracts of employment fall due, action should be taken to extend theexisting contract for a period of no more than three months.

5. Major Contracts, Undertakings and Government Programs

The broad rule is for Governments to avoid entering into major contracts orundertakings, including commitments which would be politically contentious, duringthis period. Major project approvals within Government programs should normallybe deferred by Ministers unless there is appropriate consultation with the OppositionParties.

6. Election Promises

It is important to note that the basic conventions are directed to the taking ofdecisions and not their announcement. Accordingly, they do not apply to new policypromises which a Government may announce as part of its election campaign.

7. Other Conventions

There are other conventions and guidelines which should be applied during thecaretaker period. These include:

(a) Operations of departments and relationships with Ministers during theelection period

(i) Normal business of government to continue but Departments to avoidpartisanship and ensure impartiality of the Public Service.

(ii) Ministers to sign only the necessary minimum of correspondence.

(iii) Material concerning the day to day business is supplied to Ministers inthe usual way.

(iv) Relevant departments may be asked to cost Government and Oppositionpolicy proposals.

365


(b) Legislation

Bills introduced to the Legislative Assembly but not passed will lapse whenthe Legislative Assembly is dissolved as will Bills awaiting Royal Assent.

(c) Executive Council

Executive Council will continue to meet during the caretaker period but willonly consider necessary and routine matters of Government administration.

8. Consultation by the Opposition Parties with Departmental Officers

(a) The Federal Government and State Governments of Queensland and Victoriahave adopted similar guidelines relating to consultations between Oppositionparties and departmental officers. These practices and guidelines have beenadopted in order to ensure a smooth transition in the event of a change ofgovernment.

(b) Such guidelines come into operation as soon as the election announcement hasbeen made.

(c) The following guidelines shall apply:

(i) Under the special arrangement, Opposition spokespersons may be givenapproval to have discussions with appropriate officials of GovernmentDepartments.

(ii) The procedure should be initiated by the relevant Oppositionspokesperson making a request of the Minister concerned who is tonotify the Premier in writing of the nature of the request and whether ithas been agreed.

(iii) The discussions will be at the initiative of the non-Government parties,not officials. Officials will inform their Ministers when the discussionsare taking place.

(iv) Officials will not be authorised to discuss Government policies or togive opinions on matters of a party political nature. The subject matterof the discussions would relate to the machinery of government andadministration. The discussions may include the administrative andtechnical practicalities and procedures involved in implementation ofpolicies proposed by the non-Government parties.

366


(v) Departments will be represented in such discussions by the ChiefExecutive and appropriate Officers with relevant expertise.

(vi) The detailed substance of the discussions will be confidential butMinisters will be entitled to seek from officials general information onwhether the discussions kept within the agreed purposes.

(vii) As part of the process of preparing the way for any incomingGovernment, Departments may prepare general briefing papers topresent to incoming Ministers subsequent to the election on theimplications of their major stated policies and

(viii) Queries about approval of particular requests for consultation should behandled between the relevant Minister and the Premier. Any requestswhich involve an unreasonable amount of work by the Department mayproperly be denied.

9. Government Advertising and Publications

Guidelines applying to Government advertising and publications appear in Circularto Ministers and CEO’s No. 1/93 titled “Electoral Amendment (Political Finance)Act 1992” as distributed on 4 January 1993.

10. Travel

Under regulations governing the Imprest System, entitlements are suspended for theperiod between the issue of writs for a general or conjunct election on the day fixedby those writs for taking of the poll.

Apart from normal travel to and from and within their own electorates, no Minister,or Government Member of Parliament, may travel by air at Government expenseexcept the Premier and Deputy Premier. (See Circular to Ministers and CEO’s No. 1/93 titled “Electoral Amendment (Political Finance) Act 1992” as distributed on4 January 1993.

PREMIER

367


APPENDIX 3B

COMMISSION ON GOVERNMENT

DRAFT GUIDELINES ON GOVERNMENT ADVERTISING

1. Introductory Principles

1.1 It is right and proper for governments to use public funds for publicity andadvertising in order to inform the public of the government services available tothem and of their rights and obligations.

1.2 It is improper for governments to use public funds for publicity and advertising inorder to gain a partisan political advantage.

2. A Definition

2.1 The guidelines apply to the production of:

• press, radio, cinema and television advertisements;• audio visual material;• printed material (pamphlets, explanatory booklets etc);

and the use of:

• public relations consultants;• market research agencies;• advertising agencies; and• other specialist consultants

in the development of advertising material.

3. Content of Advertisements and Material in Advertisements

3.1 The content of advertisements should be:

• accurate, factual and truthful;• fair and impartial;• legal and proper.

368


3.2 For material to be accurate, factual and truthful, it should conform to the ordinarymeaning of those words. That which is held out to be the truth should be foundedupon ascertainable facts, carefully and precisely expressed in conformity with thosefacts. No claim or statement should be made which cannot be substantiated.

3.3 For material to be fair and impartial, it should be complete in itself and presented inan unbiased and equitable manner. Specifically:

• the recipient of the information should be able to distinguish easily betweenfacts on the one hand, and comment, opinion and analysis on the other;

• when an advertisement presents a comparison it should not mislead therecipient; and

• material may include a response to, but should not be aimed solely at attackingor rebutting, the arguments of others.

3.4 Material is legal and proper when:

• it complies with the law;

• it is suitable for the purpose and is consistent with community standards; and

• it avoids language with partisan connotations including political slogans.

4. Cost Effectiveness

4.1 Advertisements should comply with all the measures outlined in the document‘Advertising, Confirmation of Government Policies and Procedures March 1995’.

4.2 The cost of producing advertisements should be justifiable. All departmentaladvertising campaigns should include the setting of objectives prior to thecampaign’s start and an assessment of the campaign after its completion.

4.3 The Accountable Officer of every department or agency should attach a statement tothe annual report setting out particulars of all amounts paid by or on behalf of thatdepartment or agency for advertisements with a total production cost of $2,000 ormore. This should include payments to:

• advertising agencies;• market research organizations;• polling organizations;• direct mail organizations; and• media advertising organizations

369


4.4 The Accountable Officer of every department or agency should complete adeclaration of compliance with these guidelines to all advertisements whose totalproduction cost is equal to or exceeds $2,000.

370


Government Advertising Policy

Declaration of Compliance with Advertising Guidelines

Department/Authority ..........................................................................................................

Contact Name &Telephone No: ...........................................................................................

Facsimile No: .......................................................................................................................

SUBJECT OF ADVERTISEMENT

.............................................................................................................................................

.............................................................................................................................................

.............................................................................................................................................

.............................................................................................................................................

DECLARATION

I declare that the advertising material specified above and the methods used to produce theadvertisement conforms with the government advertising guidelines as published in theGovernment Gazette and the advertisement does not promote personally any politician,political candidate or minister.

Signature of Accountable Officer/Accountable Authority ...................................................

371


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