As is the custom, the new Prime Minister, Anthony Albanese, soon after the appointment of his new ministers, issued his own set of guidelines for their ethical behaviour. Though he adopted a different title, Code of Conduct for Ministers, Albanese's document is essentially the same as his predecessor's Statement of Ministerial Standards. It copies the great bulk of the earlier text verbatim, though with some re-arrangement of paragraphs aimed at securing a more logical sequence of ideas. Reference to obligations arising from the Jenkins report on parliamentary workplaces, which had been awkwardly inserted into the Morrison standards, has been rewritten and clarified.
The most substantial changes are to sections on conflicts of interest and shareholdings in reaction to the case of former attorney-general Christian Porter, who used a blind trust to pay for personal legal expenses. Ministers must now take full responsibility for their private interests, including the management of any relevant conflicts of interest. They cannot delegate such responsibilities to others, thus ruling out the possibility of blind trusts. Opportunities for conflict of interest are further reduced by requiring ministers to divest themselves of all investments other than certain specified categories, such as public superannuation funds and publicly-listed managed funds with broadly diversified interests.
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To handle conflicts of interest, the previous standards tended to give more weight to individual ministers' ethical discretion rather than blanket bans. The Porter example exposed the limitations of this approach. Though he was ultimately found in breach of the ministerial standards' injunction to avoid perceptions of conflict of interest, Porter relied initially on the rules of the parliamentary register of members' interests. He argued that the current rules permitted such trusts, a not implausible claim that was later upheld by the house of representatives privileges committee (Tightening up the rules of the register relating to blind trusts remains unfinished business for the committee).
While the new ministerial code deals with the Porter case, it wholly ignores another major scandal from the Morrison era which also revealed weaknesses in the ministerial standards. Almost immediately after the 2019 election, two former senior ministers, Julie Bishop and Christopher Pyne, accepted positions with major consulting firms that had dealt extensively with their former departments. The appointments were clearly intended to exploit the ex-ministers' inside knowledge and raised serious issues of conflict of interest.
In response, the prime minster, Scott Morrison, called on Martin Parkinson, his departing secretary of PM&C, to report on whether the ex-ministers were in breach of the ministerial standards. The relevant section in the standards contained two paragraphs which remain essentially unchanged since 2007 and are repeated in the new code. One section refers to a temporary 18-months' ban on directly lobbying ministers or public officials about matters that the ministers dealt with while in office. This prohibition is in line with a similar cooling-off period in the lobbying code of conduct.
The other paragraph refers to inside knowledge and requires ex-ministers "not [to] take personal advantage of information to which they have had access as a minister, where that information is not generally available to the public".
On the lobbying ban, Parkinson was able to establish that both Bishop and Pyne had a clear understanding of the policy, though he had to rely solely on their personal assurances that they would comply. The inside information issue, however, proved less straightforward. Parkinson distinguished between 'experience', which cannot usefully be constrained, and 'specific knowledge' such as cabinet deliberations or confidential briefings. But the lines are blurred and rely too heavily on the personal judgment of the ex-ministers themselves.
The senate finance and public administration committee conducted a detailed review of the case and of the issue of post-employment generally, eliciting very helpful submissions from integrity lobbyists and producing a valuable report. Labor senators, however, seemed more interested in embarrassing the government and hammering Morrison's ethical failings than in supporting constructive change, a complacent attitude which clearly persists. The issue lies ready to be taken up by pro-integrity crossbenchers in the new Parliament.
Post-employment is not an easy area to regulate for two main reasons. First, what counts as improper use of knowledge or influence is not easily answered. The 'revolving door', besides involving risks of conflict of interest and corruption, is also a valuable means of transferring skills and experience from the public to the private sector (and vice versa). Second, the fact that former ministers and officials are no longer in government employment removes them from most forms of sanction for non-compliance (other than the criminal law, which is rarely used except against whistle-blowers).
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Other remedies are available. For example, cooling-off periods are a blunt instrument but effective. They can be used not only to ban lobbying but also, as in the United Kingdom and Canada, to restrict any form of employment in a relevant area, thus circumventing the difficult issue of what knowledge should be protected. They may not be legally enforceable but their clarity and transparency makes them less easily ignored. If Pyne or Bishop had not been permitted to walk straight from their ministerial offices into related consulting jobs, the danger of corruption (along with the ex-ministers' value to their employers) would have been much reduced. Given Labor's apparent lack of interest, this would be a good issue on which to test the new government's commitment to integrity.
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