The ministerial standards were supposed to be legally enforceable
There is a misconception that the prohibition on ministers taking jobs related to their portfolio once they leave politics is unenforceable, according to one of the authors of the Statement of Ministerial Standards. Howard Whitton, who is preparing a submission to the Senate inquiry into the employment of former ministers, including Christopher Pyne and Julie Bishop, says the prohibition was designed to be enforced through written undertakings, to be given to the prime minister as a condition of being appointed as a minister. Whitton says that the contractual mechanism seems to have been overlooked and has never been tested in court. The Senate inquiry, which is expected to call Prime Minister Scott Morrison himself as well as the outgoing head of his department, Martin Parkinson, should seek to establish whether the PM or his department struck contracts with former ministers, Whitton says – and ask if not, why not?
Whitton, a visiting fellow at the University of Canberra and an expert on government ethics, co-authored the original Statement of Ministerial Standards, which was introduced when former senator John Faulkner was special minister of state in the Rudd government. The original statement has been endorsed by each new prime minister since 2007, and remains largely unchanged.
The prohibition, in paragraph 2.25 of the standards, states that:
Ministers are required to undertake that, for an eighteen month period after ceasing to be a Minister, they will not lobby, advocate or have business meetings with members of the government, parliament, public service or defence force on any matters on which they have had official dealings as Minister in their last eighteen months in office. Ministers are also required to undertake that, on leaving office, they will not take personal advantage of information to which they have had access as a Minister, where that information is not generally available to the public.
Whitton tells me that the undertakings mentioned in paragraph 2.25 were intended to be in writing, and notes that the second element of the paragraph is not limited in terms of time or subject matter – including policy areas outside the former minister’s portfolio.
Barely a month after quitting politics at the May election, former defence minister Christopher Pyne stirred controversy when he announced that he had taken a job with big four audit and consulting firm EY to help grow its defence business. Days later, it emerged that former foreign minister Julie Bishop had joined the board of aid contractor Palladium, a company whose interests she had furthered as minister by shutting down AusAid, and which she had promoted in a video. Both appointments caused uproar, although a short inquiry by Martin Parkinson cleared both ministers of any breach of the standards.
As shadow home affairs minister Kristina Keneally pointed out in the Senate, however, Parkinson’s report found that while Pyne had “put in place mechanisms to ensure … he will not impart direct or specific knowledge known to him only by virtue of his ministerial position”, he did not say what those mechanisms were. Keneally also pointed out Parkinson’s observation that Bishop had “not provided a full public statement on her appointment or how she proposes to deal with any conflicts with her previous role”. The Senate inquiry, which reports in September, is intended to get to the bottom of the issue.
“Many people seem to think that the PM’s ministerial standards are not enforceable,” Whitton tells me. “That view is mistaken. The standards were designed to be enforceable as a form of contract, but even if it turns out (when tested in court) that they are not, the common law offence of misconduct in public office may apply. In any case, individual MPs still have an ethical duty to act with integrity, respecting the trust placed in them to act in the public interest, lest Australians lose confidence in the integrity of their public institutions.
“Today, we need to recognise how fragile our democratic institutions are. Individual MPs are exposed to public scrutiny as never before, but ethics rules for MPs can only be part of the answer. As the saying goes: ‘If you have integrity, nothing else matters. And if you don’t have integrity, nothing else matters.’”
A spokesperson for the Department of Prime Minister and Cabinet says, “Under successive governments, former ministers have not been required to make written undertakings upon stepping down from the ministry.” If not, why not?
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Paddy Manning is contributing editor (politics) at The Monthly and has worked for the ABC, Fairfax, Crikey and The Australian. He is also the author of three books, including a recently updated unauthorised biography of Malcolm Turnbull, Born To Rule?
There is a misconception that the prohibition on ministers taking jobs related to their portfolio once they leave politics is unenforceable, according to one of the authors of the Statement of Ministerial Standards. Howard Whitton, who is preparing a submission to the Senate inquiry into the employment of former ministers, including Christopher Pyne and Julie Bishop, says the prohibition was designed to be enforced through written undertakings, to be given to the prime minister as a condition of being appointed as a minister. Whitton says that the contractual mechanism seems to have been overlooked and has never been...