Christian Porter's admission that he accepted anonymous donations towards his legal expenses over his defamation action against the ABC raises important issues about the transparency of politicians' interests.
Though Mr Porter eventually resigned from the ministry over the donations, the case arose from his obligations as a rank-and-file MP. He lodged a statement on the parliamentary register of interests about contributions to his legal expenses which included reference to "a blind trust known as the Legal Service Trust". As "a potential beneficiary", he had "no access to information about the conduct and funding of the trust". He also stated that, though any contributions were made to him in a purely personal capacity, he was acting "in the interest of transparency" and "from an abundance of caution".
Critics rightly argued that the anonymity of contributors to the trust actually prevented the disclosure of possible conflicts of interest because the public would have no knowledge of people who could potentially call in favours from Mr Porter. The use of the high-sounding term "blind trust" to describe anonymous contributions was unusual in that blind trusts are normally applied to a politician's own funds rather than donations from others.
Mr Porter responded that his statement on the register was within the rules. Strictly speaking, the claim appears to be correct. The rules of the register give a list of types of registrable interests, such as property, investments and directorships, which typically name the interest concerned and therefore indicate the source of any possible conflict of interest.
Mr Porter used a final catch-all category that refers to "any other interests where a conflict of interest with a member's public duties could foreseeably arise or be seen to arise". Technically, this could cover anonymous donations even though the public would have no knowledge of the conflict involved. Such anonymity clearly frustrates the main purpose of the register which is to place relevant interests "on the public record" and would fall foul of any principles-based interpretation of the register. But with the rule-based, box-ticking approach typical of many government probity processes, Mr Porter could claim compliance.
Unfortunately for him, however, his actions also came under the ministers' own code of conduct, the Prime Minister's Statement of Ministerial Standards, which takes a broader view.
The statement includes compliance with the parliamentary register of interests but also covers other possible forms of conflict. It makes no attempt to list detailed categories of interest but rather proceeds from general statements of principle such as "ministers must bear in mind that their private interests can give rise to perceptions of conflicts of interests that might contaminate not just their own decisions but also the decisions of the cabinet to which they are a party". Such language naturally invites nuanced discussion of individual cases, as happened with Mr Porter.
The overall consensus of public discussion was that the concept of a blind trust had been used by the trust to hide the identity of his benefactors and therefore to prevent public knowledge of any possible conflicts of interest.
The Prime Minister chose to distance himself from his colleague while referring the matter to his department. This step suggested that the Prime Minister would once again rely on the secretary of the Department of Prime Minister and Cabinet for public advice on whether a minister had breached the standards. This is a regrettable trend which removes responsibility for the standards away from the Prime Minister who should have ownership of them. The Prime Minister should certainly seek advice but in confidence only, making the final decision himself. Fortunately in this case, political events moved too swiftly for any such diversionary tactics and the Prime Minister was forced to announce Mr Porter's own decision.
In offering his resignation, Mr Porter sought to exonerate himself but seemingly only muddied the waters further. The reason for anonymity, he said, was the donors' desire to protect themselves from the media mob, an excuse that could extend suppression of identity to any donors to politicians and political parties and completely undermine the transparency required by a public register of interests. Mr Porter's assurance that the trust did not include any "lobbyists or prohibited foreign entities" hardly excluded many potential donors. "Lobbyist", in Canberra parlance, is the term for professional agents who arrange access to ministers for third parties. It does not cover the many powerful individuals and companies with deep pockets who have no need for such agents and for whom immediate contact with ministers can be only a phone-call away.
In the meantime, Mr Porter continues as a sitting MP, under a cloud but not in breach of the register of interests. Integrity advocates should seize the opportunity to press for reform of the register and its administration. First, the register rules should be revised to exclude the legitimacy of anonymous donations. Second, a more principles-based approach should be applied.
An obvious precedent is parliamentarians' work-related expenses which underwent a similar change in emphasis when administration was shifted from the Department of Finance to the newly created Independent Parliamentary Expenses Authority. Indeed, the IPEA could readily take over management of the register from the inevitably bureaucratic control of public servants in the Department of Parliamentary Services. The UK office of the parliamentary commissioner, for example, successfully supervises both parliamentarians' expenses and the register of interests. Never waste a good scandal!
- Richard Mulgan is an emeritus professor at the Australian National University's Crawford School of Public Policy. email@example.com
Our journalists work hard to provide local, up-to-date news to the community. This is how you can continue to access our trusted content: