Terms of Trust: Arguments over Ethics in Australian Governments

In Terms of Trust John Uhr poses and answers fundamental questions about our governments’ leadership: • How can we make ...

Author: John Uhr

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In Terms of Trust John Uhr poses and answers fundamental questions about our governments’ leadership: • How can we make political leadership compatible with ethical leadership? • How relevant is personal character to public life? • Why do we need to widen the scope of ‘leadership’ to include all public officials and not just those at the top? • And, how can citizens become more informed about the extent of government trustworthiness? With such questions and answers in mind, Australians can now get down to business and spell out the ‘terms of trust’ compatible with the exceptional high hopes – but also the everyday low practices – of our democracy. Terms of Trust is the first book-length analysis of the role of ethics in Australian government. It scrutinises what actually happens in practice against the democratic theory and identifies strengths and weaknesses of public-sector ethics. UNSW PRESS ISBN 0-86840-639-2

T ER MS OF T RUST

Public trust in Australia’s governments and our political leadership is at an all-time low, according to many opinion polls. Shaken by years of broken promises, political spin, shady deals, obfuscation and even brazen lies, many consider the condition terminal. John Uhr says the situation is not irretrievable, though serious and immediate consideration needs to be given to finding means by which our political leaders can re-earn the confidence of the community.

Uhr UNSW

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John Uhr

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TRUST Arguments over ethics in Australian government

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T R U ST

JOHN UHR is a Senior Fellow in the Political Science Program in the Research School of Social Sciences at the Australian National University. He has long held an interest in issues of ethics and public policy, which he has taught and researched at the ANU since 1990 and in which he is now internationally regarded as an expert. Dr Uhr is a graduate of the University of Queensland and the University of Toronto, Canada. He has worked as a parliamentary staffer and public servant, has served as secretary of a number of Senate committees, and has been a consultant to many Australian governments and international organisations.

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ANZSOG Program on Government, Politics and Public Management The Australia and New Zealand School of Government (ANZSOG) is a network initiative of five jurisdictions (the Australian and New Zealand governments, New South Wales,Victoria and Queensland) and nine universities. Established in 2003, ANZSOG represents a new and exciting prospect for the development of world-class research and teaching in the public and community sectors. ANZSOG has announced an extensive research program that promotes innovative and cutting-edge research in partnership with academia and the public sector (). In association with UNSW Press,ANZSOG has undertaken to publish a series of books on contemporary issues in Australian government, politics and public management.Titles in this program will promote high-quality research on topics of interest to a broad readership (academic, professional, students and general readers) and will include teaching texts relevant to the ANZSOG consortia in the areas of government, politics and public management. Series editors are Professor John Wanna and Professor Rod Rhodes, Research School of Social Sciences,Australian National University, Canberra. Recent titles include: •Yes, Premier: Labor leadership in Australia’s States and Territories, edited by John Wanna and Paul Williams •Westminister Legacies: Democracy and Responsible Government in Asia and the Pacific, edited by Haig Patapan, John Wanna and Patrick Weller.

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T R U ST ARGUMENTS OV E R E T H I C S I N A U ST R A L I A N G OV E R N M E N T

JOHN UHR UNSW PRESS

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A UNSW Press book Published by University of New South Wales Press Ltd University of New South Wales Sydney NSW 2052 AUSTRALIA www.unswpress.com.au © John Uhr 2005 © Geoff Pryor cartoons First published 2005 This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Inquiries should be addressed to the publisher. National Library of Australia Cataloguing-in-Publication entry Uhr, John, 1951– . Terms of trust: arguments over ethics in Australian government. Includes index. ISBN 0 86840 639 2. 1. Political ethics – Australia. 2. Australia – Politics and government. I.Title. 172.2 Cartoons Geoff Pryor Design Di Quick Printer Hyde Park Press

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CO N T E N T S

Abbreviations Preface Introduction

6 7 9

Part I

Framing Government and Ethics 1 Taking Ethics Seriously: Defining the Problem 2 Taking Australia Seriously: Previewing Solutions

17 19 43

Part II

Ethics in Political Theory 3 Prudential Leadership: Democracy and Deliberation 4 Populist Leadership: Democracy and Demagogy

63 65 89

Part III Ethics in Government Practice 5 Responsible Government: Relationships of Principle 6 Accountable Government: Relationships of Power 7 National Security and Government: At War with Ethics

117 119 139 159

Part IV Reframing Government and Ethics 8 Putting It All Together: Public and Personal Integrity

187 189

Notes Index

212 226

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A B B R E V I AT I O N S

AGPS APRA APSC CMC DIO EARC ICAC NPM ONA PSC SMH

Australian Government Publishing Service Australian Prudential Regulation Authority Australian Public Service Commission Crime and Misconduct Commission Defence Intelligence Organisation Electoral and Administrative Review Commission Independent Commission Against Corruption new public management Office of National Assessments Public Service Commission Sydney Morning Herald

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P R E FAC E

This book is about political and administrative ethics. It is critical but, more importantly, it is intended to be hopeful. I am optimistic about the prospect of decent democratic government in Australia, in part because I believe in Australia and in part because I believe in the decency of democracy. My aim is to help governments do better by helping citizens to ask more, or at least better, of government. My sense of hope rests in substantial part on my personal and professional experience of having worked with so many fine people in government, particularly in Canberra where I came to work as a researcher in parliament in 1980. Since then I have worked as a parliamentary researcher, a parliamentary committee staffer, a committee secretary in the Senate and a public servant trying my hand at professional development for Commonwealth public servants. Since joining the Australian National University, I have maintained my links with the parliamentary and public service world, which has provided me with valuable instruction in the practical realities of democratic governance. Working with elected politicians and public servants has also reinforced my sense that ethics in public life is best promoted by granting those in public office extensive responsibility to manage their own professional relationships across government. I have not written this book in a spirit of distrust, although I accept that public distrust of government can, at times, help break the mould and start the longer process of rebuilding public trust on the basis of renewed commitment to public integrity. Distrust demands huge investments in structures of scrutiny, oversight and accountability. My preference is to invest more directly in individuals to strengthen the ethical responsibilities required of

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democratic public office and to take whatever leaderships roles fall to them, whether as political leaders, public servants or ordinary citizens. Many friends and colleagues helped me with constructive criticism while I was completing this book. I want to acknowledge and thank especially those who have read drafts or worked with the publishers to shape this project: Richard Mulgan, John Dryzek, Damian Grace, and more particularly my colleague John Wanna, who has closely read this and earlier texts with his customary skill and dispatch. Publisher John Elliot has been an acute critic, greatly improving the presentation of my text. I am greatly in debt to the editorial skill and deft professionalism of Venetia Somerset for shaping and indeed sharpening much of the presentation of my argument. Many ANU colleagues have contributed to this project: Rod Rhodes, Barry Hindess, Ian Marsh, Geoff Brennan, Peter Larmour, Marian Sawer, John Braithwaite, Roland Rich, John Hart. Others elsewhere have made major improvements in my understanding of ethics, integrity and leadership: Noel Preston, John Rohr,Terry Cooper, Beryl Radin, Nelly Lahoud, Marianne Camerer, AJ Brown, Denis Saint-Martin, Arlene Saxonhouse, Charles Sampford, Haig Patapan, John Kane, Donald Horne, Pat Weller, Geoff Stokes, Elizabeth McLeay, Frank Castles. For those who think that ethics is no joking matter, please note that the wonderful cartoons are reproduced from the Canberra Times and I thank cartoonist Geoff Pryor for his kind permission to use them. Parts of the book were published in different form in earlier publications and I thank the editors and publishers for their kind permission to reuse parts of this material: ‘Political Leadership and Rhetoric’, in HG Brennan & FG Castles (eds), Australia Reshaped, Cambridge University Press, 2002; Review of Donald Horne’s ‘Looking for Leadership’, Canberra Bulletin of Public Administration 102, December 2001; review of David Marr & Marian Wilkinson’s Dark Victory, Canberra Bulletin of Public Administration 107, March 2003; ‘Public Service Ethics in Australia’, in TL Cooper (ed.), Handbook of Administrative Ethics, Marcel Dekker, 2000; ‘Ethics and Administative Responsibility’, in P Keal & W Maley (eds), Ethics and Australian Foreign Policy,Allen & Unwin, Sydney, 1992;‘Competing Models of Integrity’, Res Publica, University of Melbourne, 11(2) 2002.

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INTRODUCTION

Prime ministers can tell us a lot about ourselves.While they might not be paragons of ethical responsibility, prime ministers are leading objects of public discussion of ethics in public life.When prime ministers invite citizens to trust them with the powers of political office, they are inviting public discussion of standards of public trust and of their performance judged against those standards. In this book, I examine Australian and international debates about ethical leadership in democratic government. My aim is to provoke fresh public discussion of appropriate standards of public trust for elected and administrative officials. I completed this book around the time of the 2004 Australian general election when John Howard won his fourth term of office. In one of his final set speeches before that election, Prime Minister Howard noted in his National Press Club address that it ‘was truly said by one of my predecessors that you change the Government and you change the nation’.1 In this view, politics is fundamental to national development: changes in the political order lead to changes in the social order. Politicians naturally think of their profession as fundamental and as more decisive to the well-being of ‘the nation’ than other professions in the market or in civil society. Politicians can point to their regulation and management of markets and civil society as proof of this decisive role. But who or what regulates the political regulators? If it is true that politics is as decisive as politicians say, then by what standards do we or should we judge the competing political policies and practices designed to shape ‘the nation’? One answer is ‘public trust’, in the ordinary sense that whatever the

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public is prepared to trust meets the standard of good politics. But this seems unsatisfactory because voters have so few alternatives to taking on trust the promises of whichever political party can win the battle to destroy the credibility and trustworthiness of their opponents. As quoted above, John Howard was at one level warning voters about the significance of switching support from his governing party to the party in opposition. His warning was that any switch of party allegiance would result in serious consequences for ‘the nation’. Could voters really trust his opponents with the power of government? By implication, voters could trust his party to govern responsibly, with no adverse consequences for ‘the nation’. This theme of public trust raises many important ethical issues rarely discussed explicitly by politicians themselves. Part of my aim is to make explicit the many ethical implications of ‘public trust’. Ethics arises from questions about the social responsibility of public officials shaping and managing ‘the nation’. Speaking generally, ‘ethics’ refers to a range of ‘ways of life’ and, more particularly, to investigation of competing alternatives about the best or right way of life. For political activists, politics itself is a way of life, just as for many government officials a career in public administration is a way of life. Politicians and bureaucrats certainly have private lives, but the ethics in question here relates primarily to their public lives and their conduct in the various public offices they hold. Ideally, we might expect that the public lives of officials would strengthen and not weaken the private lives of ‘the nation’. But on what basis can citizens trust government to protect the interests of ‘the nation’ ahead of the interests of government or party or bureaucracy? Howard’s press club address provides one answer but it deserves to be compared with Opposition Leader Mark Latham’s press club address the day before. Just because Howard won the election does not mean that he won the ethical argument about trust in government. First, the Howard case for trust in government. In this instance, he was quoting former Labor prime minister Paul Keating, whose term of office came to an end with Howard’s initial victory in 1996. So different in so many ways, Keating and Howard share at least this one fundamental view, one that flatters the power of governments and the capacity of politicians to make a difference. But both leaders also acknowledge that the power of politicians to change governments is limited by their ability to persuade ‘the

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nation’ to vote for a change in the party in government.This happens quite rarely. In fact Australian practice might be distinctive, with so many elections but so few changes in the governing party: although there have been eight national elections over the last twenty-one years, there have been only two changes in the governing party – initially in 1983 when Labor came to office under Prime Minister Bob Hawke and later in 1996 when Howard won his first term. This feature helps explain what Keating and Howard were getting at with this notion of changes in government heralding changes in ‘the nation’. The Australian political system is rightly called one of representative democracy, meaning that politicians somehow ‘represent’ electors. But this does not necessarily mean that politicians ‘reflect’ or ‘mirror’ the views and interests of electors. Critics label them as ‘populist’ if politicians simply curry favour with electors by pandering to short-term or sectional interests. Critics rightly expect politicians to act not simply as advocates of sectional interests but to try harder to represent a range of what we might call ‘missing interests’ that help define the larger public interest – or the common good or the common weal, to use older language. What Keating and Howard were driving at is this larger concept of politics where the competing political parties are engaged in a public contest over ‘the nation’. Sure enough, all political parties have supporters for whom winning office is almost an end in itself, except for the business of sharing the spoils of office with fellow partisans. But Keating and Howard are exceptional politicians, and their shared appreciation of grand politics should not be confused with more conventional approaches. Prime Minister Howard opened the 2004 election with the statement that the contest was fundamentally about trust. By the word ‘trust’, Howard meant that voters had to make a choice about which party deserved to be ‘entrusted’ with public responsibility for the four areas of public policy he highlighted: economic growth, interest rates, national security, and the budget surplus. Howard did not make the election a contest about ‘public trust’ understood in terms of the government’s probity and integrity, which is my primary focus in this book. The government defended its trust in terms of consistency, implying that future performance will be much like the past performance. One explanation for this preference for trust-as-consistency over trust-as-integrity comes from the governing party’s ‘master pollster’, who

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at the start of the 2004 campaign described the ‘redefinition of honesty’ from a ‘technical thing’ to ‘a matter of behaving in a consistent and understandable way’. In this sense, trust derives from reliability: it involves ‘a kind of consistency honesty’ rather than ‘the-letter-of-the-law honesty’.2 This is a classic illustration of how governments construct and reconstruct the ‘terms of trust’. Governments gamble that voters can be convinced to take government on trust. Government leaders take the initiative in setting public debate over trust in government: they craft the ‘terms of trust’ so that voters will accept the trustworthiness of the government on its own terms, knowing that disdain for ‘technical’ instances of procedural misconduct will be outweighed by the expectation of substantive policy gains. Three days out from the 2004 election, Prime Minister Howard returned to his interpretation of trust in this sense of voter confidence in a party’s ability to deliver consistent policy outcomes.Voters could trust the governing party because of its distinguishing ‘philosophy’ (mentioned three times in the first paragraph) about ‘the character of the Australian people and the nature of the Australian nation’.The government’s record of ‘strong decisions deliberately taken’ meant that voters could entrust the government with continued responsibility for ‘the nation’. There was no defence of the integrity of the government’s pattern of decision-making or of the public probity of the governing party. Did this imply that the desirability of the ends was more important than the value of the means? I think not, but this implication is consistent with the ‘trust us’ attitude expressed by so many governments. Ethics did make a distinctive appearance in the Howard speech. The prime minister attacked the opposition’s philosophy for displaying a distrust of the Australian people and a desire to regulate private choice. The argument was that the opposition philosophy could not be trusted because it carried what Howard called ‘a touch of the social engineer’ with ‘a whiff of the behavioural policeman’ in its agenda of social regulation. The Howard vision was one of individual ‘choice’ contrasted with the opposition’s biggovernment promotion of ‘a preferred model of behaviour’ which he found in Latham’s earlier address.3 Latham’s argument about trust was quite direct. In contrast to Howard’s commitment to honour stated policy ends, Latham paid more attention to questions of means, including a commitment to ‘truth in government’.

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13

Exaggerating for effect, we can see this contrast as a difference over the relative importance of ends and means, with the governing party asking to be trusted to deliver promised ends and the challenger asking to be trusted to comply with due processes allegedly missing from government practice. Latham asked how voters could trust a party which, in his view, scares people ‘by spreading fear and uncertainty’, which engages ‘with the politics of the Big Lie’ about the likely rise of interest rates under Labor, which broadcasts ‘dishonest’ advertising, and which falls short of standards of ‘truth in government’. What neither leader mentioned was the outstanding trust-trigger for the 2004 national election. The prime minister had dissolved parliament just as a Senate committee had begun hearings into ‘the Scrafton evidence’ relating to public disagreements between former ministerial staffer Mike Scrafton and the prime minister over the ‘children overboard’ affair at the time of the 2001 election.4 This inquiry was about ‘public trust’ understood in quite traditional terms of probity and integrity, caused by doubts about the honesty of government conduct during and after the 2001 election when denying having received public service advice about the government’s misleading and deceptive account of asylum-seekers threatening Australia’s border protection. I have more to say about these incidents later in this book.What is relevant here is that these issues of the integrity of due process in public decision-making were quickly overtaken during the 2004 election campaign by a looser set of issues about which party could be ‘entrusted’ with responsibility for prudent financial management. The debate shifted from one of moral competence to one of economic competence, as though they were separate spheres of trust. But all that is now behind us.The Australian public has already come to a judgment about who they can trust with the power and responsibility of government for the parliamentary term begun in late 2004. Of course, this election result tells us nothing about the merits of trade-offs between ends and means. Nor does it tell us much about the importance of the integrity and probity dimensions of pubic trust. My aim is to tease out the many ethical implications of the public’s hard choice to take governments on their own terms, which I call the ‘terms of trust’. Governments are more than happy to be taken on trust, but then again they are the providers of most of the information available to the public when making decisions about which party to trust in government.

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Governments construct ‘terms of trust’ to win over public confidence in their capacity to use the powers of government responsibly for the benefit of ‘the nation’. In this context, it is worth noting the reported views of the deputy prime minister, John Anderson, who welcomed the trust voters had given the government in October 2004 by granting them control over the Senate: ‘Maybe we could have a house of review instead of a house of obstruction … it might also be nice if we didn’t have these endless witch-hunting committees that are plainly just witch-hunts.’5 Better to let the people trust the government than to let anyone trust the Senate with inquiries into issues like ‘the Scrafton evidence’. I recognise that some version of the ‘terms of trust’ are inevitable in democratic government. Citizens have no feasible alternative to, and probably much to gain from, delegations of discretion to politicians and administrators to act as public trustees. But this does not mean that citizens have to deal with governments solely on their own terms. I think there are good reasons for trusting government but I am not convinced that Australian governments have made the most credible case for their ‘terms of trust’. In some cases, their actions undercut their claims to responsibility. But more distressingly, in many other cases government ethics and integrity policies actually weaken public trust by taking public confidence for granted, when in fact it should be earned. I am convinced that the right sort of ‘terms of trust’ can help government re-earn and sustain community confidence. To this end, I pose a range of questions and review answers from Australian and comparable international experience. Some deal with leadership. What standards of ethical leadership are relevant to political leaders? How can we make political leadership compatible with ethical leadership? How can we widen the scope of leadership to include all public officials and not just those at the top? Others deal with the lack of leadership. How can governments do better than demand that citizens take them on trust? How can citizens become more informed about the extent of government trustworthiness? Can governments provide independent verification of their claims to public trust? Can politicians be trusted with their powers of self-regulation of their political conduct? How can we know that public servants have retained their public integrity while working so closely with elected politicians? How can elected politicians retain their public integrity when depending so heavily on unelected guardians of

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the public interest? And finally some questions closer to home.What sort of ethical leadership can ordinary citizens bring to political life? Can we rely on an ethics of role for public officials? Where does personal integrity fit in the framework of public integrity? How relevant is personal character to public life? With these questions in mind, we can now get down to business and spell out the ‘terms of trust’ compatible with the exceptional high hopes, but also the everyday low practices, of Australian democracy.

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This image has been removed due to copyright restrictions.

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PA RT I

FRAMING G OV E R N M E N T AND ETHICS


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Chapter 1

TA K I N G E T H I C S S E R I O U S LY Defining the Problem

This is a book about government use and abuse of ethics. The focus is on ethics policies designed by governments to reassure citizens about public integrity. I am critical of claims by governments, indeed any government, that citizens can trust them to do the right thing. Governments claim that by ‘taking ethics seriously’ they are producing valuable solutions; my argument is that ‘taking ethics seriously’ is itself the problem.This might sound paradoxical in a book about ethics, but I want to raise some quite fundamental questions about the significance of claims to ‘take ethics seriously’. This chapter opens up this problem for my investigation in later chapters in this book. While I support moves by governments to raise standards of public conduct, I see no reason for citizens to take on trust what governments proclaim about increased ethical standards. Democracy certainly needs large doses of trust between electors and their representatives, but it also benefits from doses of distrust. Standards of conduct within government can and should be raised, but it would be unwise to let those on the inside of the system take sole responsibility for its ethical overhaul. This chapter argues that citizens can contribute much to the reform process, particularly by bringing an educated distrust to the ‘terms of trust’ constructed by governments – the language and discourse constructed by governments to convey messages about their commitment to ethics and public integrity. My goal is not to substitute distrust for trust. Both orientations have their place, working in complementary ways to promote public integrity in government. But at the end of the day, much of the most valuable work of democratic government requires substantial delegations of public trust to

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PA R T I • F R A M I N G G O V E R N M E N T A N D E T H I C S

allow government officials to use their discretionary powers to manage public affairs. My worry is that prevailing ‘terms of trust’ devised by democratic governments – not only in Australia – lack public credibility. Upon the sort of close examination I provide in this book, so many prevailing ethics frameworks can be seen to sell democratic government short by raising doubts and suspicions in the public mind about the inner integrity of government ethics.The gaps between the promises about ethics (the advertising, as it were) and the practices of government (the product) upset the balance between hard-earned trust and sceptical distrust. My aim is to reconstruct the ‘terms of trust’ so that citizens and indeed governments can see a better balance of trust and distrust. Trust is essential to good democratic governance, and I fear that governments have been their own worst enemies by overselling their capacities for responsible ethical self-regulation. Governments have made the practice of ethical government that much harder by, paradoxically, their misplaced pride in ‘taking ethics seriously’. My contribution is to push the reset button and take us back to the beginning to rewrite the ‘terms of trust’.

Why take ethics seriously? There are many things that governments do that are ethically suspect. There are also things that governments do that are downright corrupt.An emerging issue in Australian government is the ‘selling of the government’: the abuse of public resources in government programs of community information redesigned to promote the partisan interests of the party in government. I favour quite a wide definition of political corruption that captures many types of abuses of government power that arise in secrecy and tend to evade the routines of public accountability. A good example is partisan manipulation of information about government programs and services. A common feature of these activities is their longterm effect, when properly revealed as exercises in public misinformation, in corroding public trust in the processes of government. But governments often protest that ‘no law has been breached’ – as though corruption in government is always a matter of criminal misconduct. I should emphasise that in this book I will not be focusing primarily on these distressing instances of slyness and corruption. Instead, my focus is on another world of corrosive political misconduct: the open proclamation that governments are ‘taking ethics seriously’ through dedicated programs in

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support of public integrity sold as new ‘terms of trust’ to restore public confidence in government. Governments ask citizens to trust them. From experience, citizens have good reason to distrust governments, knowing how often governments break their word.This relationship of distrust between citizens and governments is in many ways a sign of strength: the high ideals of democracy mean that governments should earn their trust and not take it as a given. Australian research on distrust and government tends to show that citizens continue to value the basic political system even though they increasingly distrust those politicians entrusted with the power of government;1 people believe in the value of politics even though they disbelieve so many politicians. One implication is that people believe that the basic political system somehow protects them against misgovernment by disreputable politicians. That is, citizens trust the underlying system more than they trust the underlings who claim to represent them. For example, citizens in 1975 might not have liked either the prime ministership of Gough Whitlam or the adversarialism of Opposition Leader Malcolm Fraser, but they valued the way the logic of the political system eventually let voters themselves determine which party team should run the government.Another example: in the years since 1975, voters who have reservations about the trustworthiness of politicians generally have learned to trust the rules of the electoral system which allow them to split their vote between the House of Representatives and the Senate, selecting representatives from the major parties for the lower house and representatives from the minor parties for the Senate. The 2004 election is a break with this trend, and we will have to wait to see what voters learn about granting a governing party power over both houses of parliament. Voters might think that governments never learn. But governments are made up of politicians and, when they have to, they can learn quite a lot. This is particularly clear in relation to lessons about re-election. Elections are the most extensive public tests of governments and trust. Serving governments facing elections appeal to voters not to trust their irresponsible opponents with the power of government – or in the case of minor political parties, with power over government.The parties in opposition respond that the serving government has lost responsibility for the public trusts expected of governments.These claims and counter-claims about trust and trustworthiness have become the prevailing theme of elections in Australia

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as in comparable parliamentary democracies. It falls to voters to weigh up competing claims about who can be trusted. In itself, this tells us quite a lot about the nature of contemporary democracy, where voters are called upon to select their political representatives to exercise the powers of self-government that ancient democracies associated with the citizens themselves. In ancient democracy, the question was whether the people could trust themselves. In contemporary democracy, the question is whether the people can trust the representatives they elect for the job of government.This is no easy task: for the most part, elections take place with very few rules and regulations about trust. There are plenty of rules restricting public access to government information but very few promoting the candid investigation of government trust. Governments are remarkably free to tell their story as they see fit, embellishing their record where necessary and keeping silent about those things they find hard to explain away. Opposing parties are equally free to raise questions about the truthfulness of government and to float promises of prosperity if they win office. What voters know about the merits of these competing claims is only as good as the integrity of the information at their disposal. Sadly, much of the information about the merits of government claims and the defects of opposition claims comes from governments themselves, using the power of office to broadcast their message – including the message about government ethics. If possession is nine-tenths of the law, then incumbency is nine-tenths of the struggle for political power. Governments tend to be re-elected partly because they have so much power over the information used by voters at elections. Consider the Australian record since Menzies was elected in 1949: his government was re-elected at the next six elections until Menzies retired. His successor Liberal governments won the next two elections, before the election of the Whitlam Labor government in 1972: the first time an opposition had won office in ten elections. Since 1972, serving governments have won ten of the thirteen elections.All up, there have been only three changes of governing party in the twenty-two elections since 1949. This shows just how difficult it is for oppositions to defeat governments at elections. It also demonstrates the power of incumbency in the public battle over trust in government. But what this story does not demonstrate is anything about the trustworthiness of the many governments – Labor as well as Liberal – re-elected so regularly.The fact that vot-

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ers have returned governments to positions of public trust tells us little about the trustworthiness of those governments or about the political morality of their use of public power. This background helps explain why governments have begun to take ethics seriously. In Australia and comparable democracies, voters are increasingly suspicious of the ethics of politicians, whose reputation for trustworthiness continues to fall. But governments know that, certainly in Australia, voters tend to re-elect serving governments, especially where they can be reassured by heads of government claiming that they are aware of the challenges facing ethics in government and are committed to strengthening that ethics. Sometimes this reflects genuine commitment to improve the business of government: the record of Peter Beattie in cleaning up his own governing Labor Party in Queensland is a case in point. But there are counter-examples where political leaders have said a lot and done very little. A reputation for leadership can lead to many things, including electoral victory. Hence the problem:‘taking ethics seriously’ is ambiguous. It can mean taking the high road of getting serious about ethics, or taking the low road of getting serious about the appearance of ethics. Of course, no government can afford to be seen to be quite so calculating as the low road suggests. But citizens have reason to be wary when governments become intense or preoccupied about their reputation for ethical conduct. The Australian situation nicely illustrates a larger international trend, with governments steadily intensifying their public release of policies, frameworks, and codes relating to the regulation of ethics in public office – all designed to reassure the wider community that those in positions of political and governmental power are complying with appropriate standards of public conduct. It would be good if it were true; and it would be even better if someone other than the government told us it was true.2 My phrase ‘terms of trust’ tries to capture the significance of this increased preoccupation with ethics by governments.This book is a critical review of this fascinating policy development, drawing lessons from the Australian experience that are relevant to comparable democratic systems. The ‘terms of trust’ appropriate to public office include the desirable delegations of trust, discretion, judgment and personal responsibility necessary for effective democratic governance. Administrative as well as political officials need room to move in public office.This calls for delegations of trust.

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Although public integrity is strengthened by many institutional safeguards, I will argue that public integrity rests substantially on the personal ethical responsibility of public officials placed in positions of public trust.Therefore it is not surprising that governments plead with voters to let those in government clean up the mess, rather than wait for stricter external regulation by outside ethics experts. In general, I support this preference for self-regulation because, when done well, it can deepen and strengthen the sense of personal ethical responsibility so valuable among office-holders in a system of democratic government. But nice words about responsible self-regulation are not enough: the trust that goes with ethical responsibility has to be balanced against equally legitimate demands of external accountability. Because trust can be misused or abused, public trust has to be balanced by public accountability. Ideally, I argue, public accountability of government should be designed to reinforce official responsibility and to demonstrate the value of public trust – and not designed to feed public distrust of government. External accountability is a valuable safeguard against misplaced responsibility; but on its own it can do little to nurture the sort of ethical responsibility required of democratic office-holders.

Where does politics come in? Where does politics enter this picture of personal responsibility? My view is that it is already there: politics shapes the law, including the limits to the law, and provides the structural environment for personal responsibility in public life.The contrast between legal regulation of public ethics and selfregulation of personal ethics sounds as though politics has been eliminated. It has not, because in democratic societies politics is the medium of public life. When I argue that ethics in public life depends as much on personal character as on institutional codes, I am referring in particular to the personal character and political will of leading politicians. If politics is the structural medium for democratic public life, then the ethics of public life is to a very large degree regulated by the personal sense of public responsibility of those who hold political power.The ethical horizon of public life is framed by politics, particularly by the personal character and the preferred political processes characteristic, as it were, of those who rule. In claiming that public ethics can not be divorced from personal character, I am not ignoring the power of political will exercised by those who rule,

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formally and informally. What I am saying is that the public integrity of democratic systems of government is decisively affected by the personal integrity of public officials, and that the most dramatic demonstration of this personal dimension is the impact that the political will of leading politicians has on the ethics of public life. To take an Australian example: while the code of ministerial conduct published by Prime Minister John Howard might not be perfect as a guide to community standards expected of ministers, it is valuable as far as it goes. The so-called Howard code is not the main problem with substandard ministerial conduct. Part of the problem is with the ministers themselves, where there is now a track-record of reluctant resignations by ministers breaching the code’s provisions on misuse of public office. But another problem is the personal political will of the prime minister (but it could be any prime minister) in enforcing, or rather in not enforcing, the code when the prime minister deems it appropriate.This is a good example of a potentially valuable code of conduct not supported by political will. Consider another Australian example of the other side of the ethical street: political will unsupported by any ethical will.The power of politically appointed officers serving ministers (that is, ‘ministerial staffers’) might be an inevitable consequence of the complexities of modern government, but the growing power of these backroom operators brings with it ethical problems.The public service has all the formal power of ‘executive government’ but much of the substance of this governmental power is passing to those in ministerial offices. Working relationships between ministerial staffers and regular public servants are complicated by the confusion of public-interest responsibilities on both sides: ministerial staffers wielding ‘mandates’ of the elected government and public servants shielding themselves with claims of ‘political neutrality’.The political will of politicians has already been tested: legislators have legislated, with the result that the conduct of public servants is regulated by laws, regulations, codes and a battery of formal directions. But the conduct of ministerial staffers is unaffected by even the thinnest of pieces of paper declaring appropriate public standards. The relevant employment law has no provision for any ministerial staff code of conduct.And governments (the former Labor government as much as the current Liberal government) like it that way. It is all a matter of political will and convenience, as deemed appropriate by serving (and wouldbe) ministers.

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Democratic public integrity can never be fully ‘systematised’ or ‘rationalised’. It will always be mediated by politics.The political will of leading politicians sets the tone for appropriate conduct in public life, not only in relation to standards of personal conduct but more importantly in relation to the real challenge facing public integrity: standards of interpersonal conduct found in the working relationships among holders of various forms of public power.This view about the power of those at the top of government helps to explain my focus on the ethics of political leadership in chapters 3 and 4. But the anatomy of political leadership also helps to clarify the place of the personal in broader political settings. I hold that ethical responsibility in public life is very much a matter of the personal management of public trust. Offices of public trust rest on the responsible judgment and good sense of their occupants. Not every detail of appropriate conduct can be codified in advance: codes of ethics can summarise the spirit of responsible use of public offices, leaving officials with the duty of managing their own conduct in ways that are consistent with prevailing law but largely unregulated by detailed legal instruments.When this arrangement works satisfactorily, public trust is vindicated by the personal responsibility of relevant public officials. But when public trust is found wanting, the usual remedy is the imposition of burdens of public accountability. Thus executive governments bring to bear various instruments of executive accountability, legislative institutions assemble their plentitude of parliamentary powers, and the courts and related commissions stand ready to act on complaints about unlawful conduct. Of course, the news media also have instruments of public accountability ready to contest the authority of governmental power. Finally, in this preview, a warning about tough-minded talk about ethics for public officials being ‘a test of character’. I have argued that the character of leading politicians does indeed set the tone for what is acceptable and unacceptable in public life. But it is unrealistic for those in positions of public power to expect subordinates to rely on personal character and nothing else when ‘taking ethics seriously’. This mismatch between the freedom exercised by powerful characters and the limited options for unfettered action by lesser figures came out clearly in the 2004 renewal of the public debate over the ‘children overboard’ election in 2001. I have more to say about this incident in later chapters. My interest here is in the reported comments of Prime Minister’s Howard’s former head of the federal public service, to the effect that post-employment public comment by a former

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ministerial staffer calling into question Howard’s version of events illustrated a ‘moral failure’ by that individual.3 The suggestion was that the former official should have spoken up at the time or at least during subsequent departmental inquiries initiated by Howard’s public service chief.The accusation of ‘moral failure’ implies that taking ethics seriously means having the courage to act on one’s convictions.We are meant to ask why this subordinate official failed the test of character by not speaking up frankly and fearlessly when it might have mattered. But to my mind this accusation reflects a confusion over character.Yes, taking ethics seriously ultimately means having the character to act rightly; and yes, those with political power can demonstrate the place of character in the way they manage others, and indeed themselves. But for those down the line, there are any number of obstacles in the way of acting in character – particularly their obligations as employees to comply with directions by their employer. The options for ethics are affected by power relations, and it is unfair to complain of unethical conduct by those who understandably if reluctantly comply with the controlling norms established by those in power. Democratic governments have strong interests in trying to regulate relationships of public power, including lowering unrealistic expectations that ethical government simply requires officials to have the courage of their convictions.

What are the terms of trust? I want to turn now from political power to political product, focusing on the ethics frameworks devised by governments. Once upon a time, ‘ethics in government’ meant just that: ethics inside government, designed without public scrutiny by politicians and managed in large part by public servants, invisibly and silently. Now government ethics is out and about for all to see. Governments take pride in their appearances: codes of conduct proliferate, charters of values adorn increasing numbers of public offices, service commitments loom down as clients of government services patiently wait their turn for attention from the smaller number of public servants processing ever-larger numbers of public requests for government services to help manage their private lives. Government officials attend training courses on ethics in government, parliaments legislate for ‘values-based’ systems of public administration, ministers learn that even they have to comply with codes of official conduct, and inevitably an increasing number of ethics

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consultants come forward to help public authorities cope with this perplexing array of regulations. The motivation within governments is mixed, in Australia as elsewhere, so that the public is understandably confused about policy intent and impact. Internationally, informed critics of ethics laws argue that the track-record of reform is mixed – for instance, although the United States has been a pace-setter, appearances can be deceptive: ‘Visibility often seemed more important than viability.’4 In this book, I investigate the ‘terms of trust’ invoked by governments when justifying their ethical conduct. I use the word ‘terms’ to refer to two aspects of the trust contracts constructed by governments to win back public confidence in the integrity of systems of governance. First, the word refers to the terms and conditions of public trust as understood by government. The conventional approach in studies of government is to examine the conditions as understood by the public when granting governments the trust they so eagerly seek. My approach turns this around to investigate the conditions devised by governments themselves as part of their contract about public trust.These conditions become public knowledge when governments reveal their ‘terms of trust’ through policy discourse about ethics in government. Thus the terms and conditions in the ‘terms of trust’ refer to public acceptance of the language of ethics (values, principles, aspirations, and much more) crafted by governments to demonstrate their commitment to public integrity, itself promoted through various instruments of ethics (codes, commissions, rules, inspectors and the like). Second, my use of ‘terms’ refers to the limited period open to governments to regain public trust, before entering another swing of the political cycle when external demands for greater public accountability of government take precedence over government claims for responsibility to pursue their public trusts with minimal interference by external accountability agencies. Responsibility and accountability can work together, but getting the balance right is never easy. There is no ‘one size fits all’ model of this balance. Much depends on circumstance. Government reform programs dealing with public sector ethics tend to swing between two different models, one valuing responsibility and one valuing accountability. Ideally, both models should work in tandem, the strengths of each holding in check the weaknesses of the other. Democratic governance needs both the initiative that comes with officials taking responsibility for their own discretionary contribution to public affairs and the public protection that comes with the

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obligations of accountability expected of officials. In this sense, terms of responsibility tend to last longer than terms of accountability, probably because accountability, although necessary, is of itself insufficient to generate effective democratic governance.The other side of the story is that discretionary responsibility is in fact too powerful to be left alone, where it can descend into irresponsibility in the absence of checks of accountability.5 As for ‘trust’, I use the word primarily to capture the policy design behind ethics in government schemes, most of which rest on responsibility models, although a significant minority lean towards accountability models.6 Not that any ethics scheme can enlist responsibility and jettison accountability, or for that matter entrench accountability to the exclusion of responsibility.At its worst, the ‘terms of trust’ spun by governments privilege responsibility over accountability, hoping that citizens will accept the government line and trust government to act responsibly, in the belief that systems are in place to ensure that official conduct responds to public interests and not simply interests favoured by government. At its best, the ‘terms of trust’ blend responsibility and accountability as component parts of a larger professional ethic of democratic governance. Much of the time, of course, the policy discourse of trust reflects a situation in between these possibilities, not as bad as its critics might fear but not as good as its proponents might want us to believe. I see no good reason for citizens to take on trust any of the ‘terms of trust’ appealed to by governments in the growing list of values statements, ethics guidelines, integrity frameworks and the like. The impressive ethics talk has to match the less impressive conduct of government.The language of ethics now comprises its own distinctive policy discourse reflecting emerging demands on democratic governance caused by doubts about the sustainability of public confidence in government. Where do these doubts come from? Surprisingly perhaps, they frequently come from governments themselves, particularly from elected political executives who sense the need to ‘do something’ to repair the reputation of politics and the standing of public life. Governments want us to believe in them, in the basic political sense of believing in the trustworthiness of government, at the political as well as the bureaucratic level. In investigating the use and abuse by democratic governments of the language of ‘ethics’ in policy discourse, I do not pretend to provide an evaluation of the ethical performance of Australian government. I contend that

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the use of ‘ethics’ is at its best when governments undertake to conform with best practices of self-regulation by providing regular public evidence that community trust in government is well placed, well managed and well earned. I also contend that the use of ‘ethics’ is at its worst when governments invoke variations of the ‘terms of trust’ concept to deflect public examination of the appropriateness of government-devised standards and practices of public conduct, and to claim that the community should ‘take on trust’ what governments say about their own trustworthiness. Many professions claim a right to engage in self-regulation of their compliance with professional standards. Governments have now joined these ranks, justifying this privilege as part of the ’terms of trust’ expected of politicians, ministers and public servants. My attention to democratic political theory follows from my interest in tracking the arguments over ethics in Australian and comparable regimes. This is a book about political arguments over ethical terms.Trust is a valuable public concept and my criticism is more directed to the ‘terms’ than to the ‘trust’ concept itself: that is, to the policy discourse used to manage public understanding of ethics in government. Not surprisingly, the more governments talk about ethics, the greater the public uncertainty about government integrity. Constant appeal to the ‘terms of trust’ can even turn public uncertainty into public distrust. Ethics in government is increasingly the subject of political and public argument, and the ‘terms of trust’ are at the centre of much of this argument and increasingly open to challenge. Australia nicely illustrates this development.7 Many critics reject government claims that government authorities are best placed to monitor the extent of government trustworthiness. Governments counter-argue that they are at the apex of the Australian system of responsible government, implying that governments are best placed to judge the ethical responsibility of their own conduct. Accordingly, ministerial conduct tends to be assessed by the chief minister, parliamentary conduct assessed by the relevant parliamentary chamber, and public service conduct by public service authorities. The phrase ‘terms of trust’ is not a technical term but simply a convenient label to use when summarising the general purpose of government policies establishing ethics regimes across government. Government appeals to rules and regulations protecting the values of integrity, probity and honesty establish the ‘terms of trust’ in relations between governments and citizens. I accept that trust is essential and unavoidable in this relationship, as

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it is in so many other social relationships. But my argument is that in fundamental ways government ethics discourse gets trust wrong by reversing the relationship between givers and receivers of public trust. In democratic systems, governments have to learn to take the people more on trust, in contrast to the evidence I find here that governments want citizens to take on trust too much about their own public integrity. But none of us, officials or citizens, have very good reasons to take on trust the prevailing policy frameworks establishing contemporary ethics regimes. Governments tend to oversell their capacity to self-regulate and citizens then tend to look to institutions of external accountability to confirm their suspicions about breaches of trust in government.

How can we examine government ethics? The phrase ‘ethics in government’ is now a commonplace, but not because ethics commonly finds a place in government.8 The very phrase sounds strained, as though ethics is more at home out of government. It probably is, but this has not stopped governments around the world flying the flag of ethics, proudly displaying self-confidence in the hope of restoring public confidence in the ethical qualities of government. Much of the ethics regimes now on display around the democratic world are political frameworks devised by elected politicians to regulate the official conduct of unelected public servants. More recent additions to this framework include rules and regulations covering the official conduct of politicians themselves, also made to order by serving politicians. In some rare cases, these ethical regimes involve external public bodies monitoring the compliance of politicians and bureaucrats with appropriate rules and regulations. But more often than not,‘ethics in government’ means that the monitoring is also within the system of government, in what resembles a large experiment in self-regulation, with those being regulated taking responsibility for devising and applying the regulations. A characteristic example is that of heads of government being judge and jury in cases of alleged misconduct committed by their cabinet colleagues. But much the same spirit applies to many other areas of government: bureaucrats judge other bureaucrats; parliamentarians judge other parliamentarians; police judge other police officers; and in rare cases judges judge other judges.You can trust us to monitor our trustworthiness, seems to be the message from government to the community.

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In examining the Australian scene, I do my best to take seriously what governments say they are doing when they write the rules about ethical conduct for public officials. My analysis follows the policy profile traced by Australian governments, trying to tease out the policy logic behind this important initiative, comparing the Australian story with the experience of comparable other nations experimenting with ethics regimes regulating public life. My aim is to examine the policy behind what is largely a selfregulating system established by governments to respond to public doubts about the degree of seriousness with which Australian governments take ethics.The proliferation of ethics rules and regulations suggests that governments certainly take appearances seriously, and it might be that the appearance of ethics in government is the necessary first step heralding the arrival of ethics in the actual practice of government. We can only hope. Of course, many governments approach rule-making of their own internal affairs with an air of polite ritual, suggesting to observers that the real substance is quite different from the publicised form. Form and substance can diverge, particularly in politics and especially in relation to promises about political ethics: what governments say is not always consistent with what they do. Actions can certainly speak louder than words, with instances of government misconduct revealing fundamental gaps between policy promises and political realities. For this reason I admire the tenacity of muckrakers who subject government to unrelenting public scrutiny, convinced that the worth of words can best be seen in the contrast between the public posture and private conduct of public officials. In many ways, the cause of public integrity is strengthened by muckraking investigations of deceit and hypocrisy in government.9 Realistically, no increase in government policies about the importance of ethics is going to put an end to government practices of unethical conduct. But words do matter, and not simply as disguises to protect self-interest within government.To be sure, politicians and bureaucrats can be masterful wordsmiths able to lull citizens into complacent acceptance of the power-holders’ right to rule. This is the ‘trust us’ end of the spectrum frequently encountered in systems of responsible parliamentary government, where the political executive sees itself as having a public mandate to take responsibility for the state of ethics in government, and indeed of many other things as well. The other end of this spectrum is a sceptical public relying on parliamentary and other instruments of accountability to test the

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real extent of ethical responsibility in government. Practically, the ‘terms of trust’ relied on by governments frequently fall short of satisfying either the public or the accountability agencies established to test the trustworthiness of those in power.The result is public debate and argument over standards of official conduct, including the conduct of those wielding the instruments of accountability as much as of those exercising the responsibilities of executive power.This book contributes to this argument.

What is the public interest standard? Standards for judging government ethics vary. Although much of my focus is on personal ethical responsibility, I want to rely on a version of the traditional standard associated with the concept of the public interest.This muchmisunderstood concept can help us put some flesh on the bones of public trust. Even the most wily of partisan politicians appeals to the standard of the public interest when called on to justify their policies and programs. This backhanded compliment illustrates the democratic norm of the wider community interest which even naturally partisan politicians are expected to comply with or at least pretend to respect. Somewhat stricter compliance is expected of career public servants, not to mention judges. Since I will refer to this concept in many places in later chapters, it is important to clarify my understanding of this puzzling but enduring concept. Practical integrity regimes frequently draw on public-interest concepts, one recent example being the Queensland legislation establishing the Crime and Misconduct Commission (CMC). My point at this stage is simply that ‘the public interest’ has a life on the statute books which should encourage us to explore its larger life in legal and social theory. I will have many practical examples of public-interest provisions in the ‘terms of trust’ examined in chapter 5. For present purposes, one illustrative example is the Queensland Crime and Misconduct Act 2001, which uses public interest in two important instances.The Act establishes a ‘public interest monitor’ to participate in court hearings when the CMC is seeking warrants for surveillance or covert searches. The monitor is entitled to contest the appropriateness of such applications before the courts.And the CMC itself must abide generally with legislated principles when combating official misconduct, one of which is – simply but significantly – defined as ‘public interest’. This is but one example of many dealt with at greater length in later chapters when examining relationships between politicians and

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bureaucrats, both of whom have important public-interest responsibilities. Such uses should not surprise us, even if the intended meaning of ‘the public interest’ initially eludes us. The concept of the public interest is almost as old as democratic politics and is useful as a provisional way of identifying ethical standards appropriate to holders of public office.10 Appeals to a concept of the public interest serve an important political purpose in overcoming the congested gridlock of competing private interests. The appeal to the public interest reverses the conventional onus of democratic politics, by calling on interest-advocates (for example advocates of union wage protection, or of industry subsidies, or of taxes on wealth, or of welfare expenditures, or of education spending) to move beyond protection of their special interests to the protection of broader interests: the social or the general or ‘the public interest’.This call cuts deep into democratic politics. Not even the advocacy of majority interests is allowed to stand unmodified, because the majority could well be just another example of particularised interest, reflecting deeply partial interests formed on the basis of race or religion or class.Appeals to the public interest add value to democratic politics by inviting advocates of this or that policy, party or government to come clean about the unwarranted private interests lurking behind their avowals of public benefit. Appeals to concepts of the public interest put us on guard against misplaced private interests. But what is usually forgotten is that the concept of the public interest addresses procedural issues in public decision-making. It is a device for more effective political deliberation and features in theories of deliberative democracy.11 Formal consideration of ‘the public interest’ strengthens the deliberative process by putting all participants on notice of a presumption that, unless they can prove otherwise, they can be dismissed as protecting a range of private interests at the expense of the public interest. The concept does not have much to offer those searching for substantive definitions of the public good.To invite public officials to determine public policies ‘in the public interest’ does not, and indeed is not really intended to, inform officials about the specific content of particular public policies. The concept has a more limited appeal, working as a precaution against the presumption that policy-makers will, unless otherwise forced to do so, take into account the full range of relevant public interests.Appeals to concepts of the public interest work at two levels. First, in a usefully negative way, they alert political participants to the shared motivational assumption

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that all advocacy can be assumed to represent sectional interests, even when wrapped in the colours of the common good. Second, in an equally useful but more positive way, they equalise political deliberation by reducing what we might call ‘the power of power’, so that even the power enjoyed by those representing majority interests is reduced when majorities are liable to be seen as just another set of interests, able to command majority support but unable to claim a warrant or mandate proving that what the majority wants is what the public interest requires. Majorities, no less than minorities, can be misguided about the public interest. The real advantage of this second level of operation is that it promotes more effective political deliberation by reminding all participants of the need to move beyond assertions of sectional power to arguments about collective interests. This benefit is not automatic, because governing majorities can always try to exercise their power to steamroll the opposition. But when all share the motivational assumption that, unless otherwise controlled, private interests tend to drive claims of public benefit, participants hesitate to play the game until rules are devised to protect larger public interests against the power of misguided majorities. After all, today’s majority might be tomorrow’s minority and this grim possibility is enough to counsel caution in the way that partisan majorities govern partisan minorities. The public-interest concept is basic and rudimentary, which is why it works best as a procedural safeguard rather than as a substantive definition of the public good. It puts all participants on notice that other participants will presume that even (perhaps especially) when advocates invoke the phrase ‘the public interest’, their advocacy will represent private and partial interests. Clearly, this would not work unless there was a real prospect of improvement in political deliberation, based on a real possibility of working through competing partialities towards a more impartial consideration of policy options.Appeals to the public interest might seem like little more than gestures towards better deliberation, yet they are valuable as aids to help overcome partiality in deliberation and to strive for more impartial public argument.12 The ethical value of the concept lies in this link between impartiality and the public interest.The real value of appeals to the public interest is in the generation of welcome degrees of impartiality in public deliberation. The real benefit is not in the automatic discovery of ‘the public good’ but in the moderation of the partiality of interests found in the deliberative

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process. Appeals to the public interest typically work best when they invite participants in a decision-making process to prove that their participation and contribution take into account all relevant interests affected by a decision. Not all participants will agree, but the presence of due procedure (or it could be a code or a protocol or a mediating institution or a reporting requirement) promotes a deliberative process of open discussion about the public-interest impacts of potential decisions. Although this stipulation might help protect vulnerable interests unrepresented in the policy process (for example the young, the old, or even future generations), the major impact is on the policy process itself, with interest-advocates forced into open discussion about the alleged benefits to the community of their proposals, which allows respondents to mount a more equal challenge to conventional interpretations of both ‘public’ and ‘interest’. The paradox of the public interest is that it works precisely because it draws attention to what might be at risk on the basis of what is unknown, and not because of any link to benefits on the basis of certain knowledge of the public good. Over time, every clever democratic politician has learnt to dress up their partisan pleas as essential for the promotion of the public interest. The concept of the public interest works initially in this negative way, inviting us to evaluate competing policymaking processes in terms of procedural defects in protecting public interests.Then the appeal to public interest works at its best on the second more positive level, through deliberative procedures designed to flesh out the unstated assumptions and limitations in competing claims about public benefit. The public interest emerges not through any heaven-sent ‘deus ex machina’ but through the well-worn pathways of institutional checks and balances. It is not a perfect system, but it is a system, in that the interplay of interests can be channelled into a systematic process of political argument and public deliberation. This should help clarify my approach to the topic of public integrity, reflected in its most practical sense when discussing integrity in decisionmaking. Procedural integrity in the deliberative process helps protect the public interest against misplaced or misguided private interests.Again, there are no guarantees in any institutional arrangement designed to strengthen deliberative capacities and produce sounder political judgments. At the end of the day, judgment is called for – evaluating, measuring and weighing up (this is what ‘deliberation’ means) the competing proposals and deciding what is in the public interest with as much impartiality as political process-

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es can provide. Modern democratic theory draws heavily on liberal principles where the motivational assumptions about self-interested conduct tend to diminish expectations of personal impartiality and individual integrity in public life. By all means, so this message goes, let us welcome impartiality and integrity when they appear in exceptional persons, but the prudent course is to fence in ordinary partiality through institutional checks and balances. The hope is that regularity can trump roguery, with regularity as the institutional virtue supporting procedural integrity. Due procedure requires regularity of process to protect political decision-making from the ill effects of partiality and partisanship. Of course, democratic politics can not extinguish political partiality. Hence democratic decision-making tends to separate the inevitable presence of partiality from its worst consequences. In this way, the cause of public integrity is served when public decision-making is not unduly affected by personal self-interest. Affected to some degree it most certainly will be, given the role of self-interest in mobilising political action. Used in this sense, public integrity refers to the capacity of the political system to structure processes of political judgments that are not simply calculations of personal selfinterest but are judgments that can be accounted for and justified on public-interest grounds.13

Shouldn’t we define ethics? All this, thus far, without even an attempt to define ‘ethics’. At its simplest, ethics is doing the right thing.The word also refers to the study or theory of right conduct.14 In my concluding chapter, I will refine this definition by distinguishing between what is right as a matter of public duty and what is good as a matter of personal morality. But for present purposes, we can see that ‘taking ethics seriously’ can mean studying both theory and practice of ethics and asking, for instance, what is the path of right conduct for public officials? Democratic regimes can not simply leave it up to individual officials to determine as they see fit what constitutes ‘right conduct’. There has to be some guidance, some framework of public expectations about what sort of ‘right conduct’ is appropriate to public officials. This agreement on core standards is important as much for the sake of the public as for government. Democratic governments tend to define ethics for public officials negatively, in terms of not breaking the law.This is only a tendency and as we shall see there is some subtle complexity in the way that governments

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define and redefine ethics to suit their own understanding of public office, public interest and public trust. Many times in this book I will have occasion to note the changing definitions of what counts for governments as ethical public conduct. But my initial contention is that the default position in governmental ethics tends to mean compliance with the law. The dramatic example of unethical conduct is personal corruption by officials: to put it most simply, breaking the law by abusing their office for some improper benefit.There are other ways of abusing public power and office but this example will do for now.This approach of defining ethics in terms of legal compliance is more sophisticated than it might first appear. Compliance with the law increasingly means acting consistently with laws that have themselves shifted from lengthy codifications of proscriptions (complete with elaborate tables of penalties) to crisp statements of core principles enshrined in values-based legislative frameworks. Not breaking the law now means complying with the spirit of the law as set out in the charter of principles or values. I will have examples later.At this stage, my point is that the legal definitions of corruption typically reflect the old world of extensive codes of improper official conduct, while the legal definitions of ethical conduct take the new form of injunctions to act in the spirit of public service with honesty and impartiality, to cite two of the common qualities found in ethics statutes. But harder questions emerge when we ask how officials are meant to know what standards their ethical conduct will be judged against. It is one thing to know that corruption means conduct falling below the standard; it is another to know how far above that standard official conduct should go, or aspire to go, in the direction of, for example, honesty and impartiality. We can see that officials should avoid the sorts of dishonesty and partiality associated with conduct identified as corrupt, where personal gain contaminates public duty. But how far above that standard of unethical conduct is the standard for ethical conduct? What degree of honesty and impartiality passes for ethical official conduct? Is a bare pass good enough? Officials are taught that seeking improper personal benefit leads to corruption.This negative orientation is good as far as it goes, alerting officials to the dangers of corrupt self-interest. But what is the positive driver in ethical conduct? Is it simply avoidance of the negative temptations of corruption or is it the positive pursuit of public benefit? As I will consider at several points in this book, many models of public integrity fudge this ques-

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tion by leaving ethics somewhere in the middle between the negative pole of corrupt personal benefit and the positive pole of ethical public benefit. There are many practical advantages in public policy and law in leaving well enough alone.At this point I will not press the issue. But ethics regimes vary in the degree of public benefit they require of exemplary public officials: avoiding improper self-benefit is no bad thing, but it falls far short of ethical standards with a public-benefits test calling on officials to demonstrate not simply that they have done no personal harm but that they have done substantial public good.The shadow in the background is the reasonable suspicion that corruption definitions are of useful but limited policy sense when they are silent about those forms of corruption that involve limited personal benefit but substantial public harm. Examples would be classic instances of the systematic abuse of power by ruling parties entrenching deep-seated political injustice. But once we open up this door to the negatives of injustice many steps beyond illegality, we also open the door to the positives of justice – many steps above and beyond ethics and integrity as conventionally understood. Of course, policymaking is all about compromise. Governments might be uncomfortable working with bureaucrats who think they have ethical duties to act as honestly and impartially as their conscience dictates. It is understandable that policymakers would settle for an approach to ethics defined as a kind of neutral balance between the vices of personal benefit and the virtues of public benefit. But does this understandable compromise measure up, ethically and not simply politically? Above, I sketched the conventional liberal doctrine of the public-interest concept, which works best in the negative direction of alerting good liberals to the self-interested motives built into liberal premises of politics and good government. But what if some other version of ethical principle was read into the ethical responsibilities of democratic officials? I will give an example in chapter 3, drawing on the pre-liberal ethical theory of Aristotle to demonstrate a very demanding approach to political ethics defined in terms of promoting justice and not simply avoiding injustice.15 But at this point, my message is more limited: ethics in government can be defined against a very high and demanding standard of justice (goods promoted) or against more modest but more manageable standards of integrity (harms avoided). Turning away from this discussion of highest ethical standards, we can see that in most cases ethical practice by public officials is approached in

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terms of appropriate conduct in an office of public trust. Officials are expected to refrain from conduct capable of calling into question their trustworthiness as a holder of public power. Determining who is best placed to make that judgment about trustworthiness varies according to the office in question. Prime ministers claim that they are best placed to judge the public trust credentials of their ministerial colleagues, ministers in turn claim that they are best placed to judge the trust competence of their most senior (‘most trusted’) public servants, and senior public servants claim that they are best placed to judge the trustworthiness of their departmental staff. Not all of these claims are publicly credible, even though each such relationship brings together those who work very closely with each other in managing public business. The credibility problems arise because outsiders will naturally doubt the word of insiders who have so much power to lose when arguments surface over their alleged breaches of public trust. This gets us to the difficulty with ethics in government, which involves making hard decisions about standards of public trust and about who really is best placed to investigate official conduct relative to those standards. One approach is to define ethics negatively, and say that right conduct means avoiding breaches of public trust. Here the test is whether officials have subverted their public offices by using them for personal gain rather than the public duties expected of them.This is one applied use of publicinterest concepts which keeps the standard of right conduct low but clear: the public interest is satisfied if officials have not used their offices for personal gain. From this perspective, avoidance of corruption is the most reliable evidence that the public trust has not been placed at risk.

Conclusion Where do governments get the standards they write into the rules and guidelines on ethics in government? We know that citizens should not take on trust what governments say about their compliance with ethics standards, or, for that matter, standards relating to many other aspects of democratic governance, such as those for reporting on the state of public finances, or even of the state of party-political finances. Similarly, there is no good reason for citizens to take on trust the standards which governments commit themselves to when justifying their ethical competence, just as there is no good reason for citizens to take on trust the selected benchmarks of performance used by governments to justify their financial competence.

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This is more the case when governments, on the Australian model, themselves establish the standards of ethical conduct they consider appropriate to their own circumstances. It is quite possible that not only the conduct but also the standards are below par, and require overhaul rather than simply oversight. Australia is an interesting example of a contemporary democratic nation which, at least at the national level, treats government ethics as an exercise in self-regulation, involving minimal involvement of external authorities. In general, self-regulation is probably a good thing in any area of public affairs where minimal external regulation is justified by a trackrecord of maximum internal responsibility by power-holders to act honourably in the public interest. But this ideal of self-regulation by officials of exemplary public integrity is rare, as the following chapters show. Many questions arise. Can politically active individuals really be expected to comply with standards of impartiality in elected public office? Can administrative officials combine the values of political neutrality with a commitment to protect the public interest, without importing through the back door some of their own policy and political preferences? Can accountability agencies raise their own standards sufficiently to reward personal integrity as one means of strengthening official responsibility? The answer in each case is that ‘it all depends’, particularly on the standards used to judge issues of ethics and integrity.The credibility of prevailing ‘terms of trust’ devised by Australian governments are at their weakest when dealing with this issue of appropriate standards. Each of the following chapters investigates a debate over distinctive standards.The next chapter frames debates over public integrity in terms of the creative tension between realist and idealist perspectives, sketched out in theory then applied to the Australian situation.The next two chapters investigate ethics and integrity in political leadership, moving between political theory and Australian practice. I argue that the unethical character of populist leadership emerges through comparison with standards of prudential leadership. The subsequent chapters investigate ethics deep within government as revealed in relationships between political and bureaucratic officials. My argument here is that both sets of officials share responsibility for managing the public interest, with ethics best understood in terms of the integrity of the processes tested in their practical working relationship. The final chapter returns to the beginning to reframe theories of public integrity to include the personal dimension of individual integrity.

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Chapter 2

TA K I N G A U ST R A L I A S E R I O U S LY Previewing Solutions

The first chapter set out the problem of governments ‘taking ethics seriously’: governments typically stretch public credibility by inflating claims about their capacity to regulate their own ethical conduct responsibly.This chapter takes the investigation of government ethics forward by matching the problem with a range of possible solutions. In the first chapter, I treated Australian government as a quite general system illustrating wider issues in democratic government. In this chapter I will focus more closely on the Australian setting or environment of national politics and government. A theme of the first chapter was the inevitable tension between values of responsibility and accountability in the political management of government ethics. In this chapter I will align these two complementary values with a neglected intellectual debate between ethical idealists and ethical realists over the prospects of government ethics in Australia. Delegations of trust are essential if democratic political communities are going to allow their government officials to act responsibly as ethical individuals.The public management of this trust will call upon not only the initiative and personal responsibility of officials but also the corresponding reaction and public accountability of those agencies established to protect public integrity against misuses and abuses of public office. There is no magic formula for getting the balance right – in large part because so much of public ethics turns on debates over political judgment about the appropriate use of public office. I examine relevant standards of political judgment in the next two chapters when investigating the ethics of political leadership. Here I want to prepare for that investigation by clarifying relationships between the systemic values of responsibility and accountability. I

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will restate the case for accountability-based ethics in terms of a necessary but insufficient ethic of political realism: necessary as a precaution against irresponsibility in government but insufficient as a provider or motivator of responsibility in government. I will conclude by restating the case for responsibility-based ethics in terms of a valuable if somewhat lofty and loose ethic of political idealism. My aim is not so much to score idealism over realism as to use both to better inform our search for standards of ethical government. My sources are two very distinguished international arguments about what the world could expect of ethics in Australian government.The voice of realism is James Bryce, a founder of the political science of comparative democracy. The voice of idealism is Henry Jones, a pioneer of an influential school of philosophical idealism. Both thought that the new Commonwealth of Australia held out special promise for ethical government: in Bryce’s view, for honest party government if appropriate institutional checks and balances could be devised; and in Jones’ view, for unprecedented ethical responsibility if a well-formed political culture could be promoted. Neither perspective is a definitive account of contemporary operational realities of Australian government. My aim is to deepen our understanding of the range of available standards or ‘regulative ideals’ when investigating practices of ethical and unethical government in subsequent chapters.

Relating responsibility and accountability The usual story of newly elected governments is one of hopes for ethical responsibility followed by suspicions of irresponsible and unaccountable power.When responsibility falters, accountability intrudes, threatening the climate of trust.When the forces of accountability intrude too far, trust is held at bay and the climate conducive to a healthy sense of personal ethical responsibility is replaced by one of distrust and suspicion. My point is that both these modes of public integrity – the high road of personal responsibility and the low road of public accountability – are expressions of political will. Under ideal circumstances of high public trust, responsibility should take the initiative and lead accountability; but under many ordinary circumstances of low public trust, accountability will lead responsibility. It is up to the political judgment and will of leading politicians to get the balance right.

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Only rarely is the balance right.The usual story of new governments is one of wasted responsibility followed by straitjackets of accountability.Thus when a prime minister’s political will shows little evidence of ethical responsibility in relation to ministerial misconduct, up go the expectations of the accountability system to call to account such exercises of misplaced responsibility.Tighten the law and expand the role of independent instruments of public accountability, for example through ethics or integrity commissions with power to investigate formal charges of ministerial misconduct. So too, when ministerial staff face allegations of misuse of power, and the government’s political will is firmly supporting the status quo, expectations of accountability increase as one way of redressing administrative irresponsibility, for example through a specific ministerial staff code of ethics declaring expected standards of official conduct, with formal authority given to an independent ethics or integrity commission to monitor compliance. I am all for codes of ethics and codes of official conduct; later chapters will examine many useful examples. But no code or form of guidance can take the place of individual discretion and judgment about the appropriate use of public power in particular circumstances.To repeat, the processes of government occur in a political setting and I do not mean to imply that each public official can or should let the whole weight of public ethics rest on their shoulders. The practice of government is about relationships of power in a political setting. Differently placed officials manage different shares of public power, with different sets of ethical responsibilities.What is right for one set of officials is not necessarily right for another. This is where codes can help, by reminding officials of the place of ethical responsibility in their share of the work of public policy and administration. Codes and related laws have an important place in helping officials manage what is largely a system of self-regulation of the ethical responsibilities of those in government. The upper hand rests with those leading politicians who head ‘the government’: when it comes to ethics in public life, they can make it or break it. But even those with much less explicit political power can have quite explicit public responsibilities, including ethical responsibilities.The ‘terms of trust’ conveyed by the legal framework of self-regulation can, where there is political will from higher up, encourage officials to help defend public integrity through the strength of their own personal ethical responsibility. Inevitably, there are tensions between democratic govern-

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ment of any kind and various clusters of public responsibility (for instance, around executive, legislative and judicial powers) that officials find themselves having to direct and manage. But a democracy without institutional tensions would not be a democracy – not in the absence of creative tension in ethical as well as governance relationships. My approach might be too idealistic for many realists. I argue that strengthening public integrity means expanding the scope of trust associated with public office and increasing the expectation of high standards of official conduct. Only when individuals take greater personal responsibility for integrity in government will overall public integrity be strengthened. The law can help, but only so far. Mechanisms of accountability can help, but not if they work only in negative ways, sending messages about the risks of exercising responsibility in public office. In general, governments protect public integrity through rules and regulations against unethical conduct by public officials. Policymakers think of unethical conduct as conduct that is inappropriate to the job of government. Ethics laws are a common feature of contemporary democratic governance, drawing lines between public duty and private interest.These laws establish standards for the public conduct expected of office-holders. In many cases, formal rules highlight this line of strict separation, while subordinate regulations deal with guidelines about the spirit of the law – and the norms, or principles, or values, of appropriate ethical conduct for public officials. Australian governments are typical of the international trend for governments to frame public integrity by applying a distinctive policy discourse about the norms appropriate to political and public service ethics. Who determines these norms and standards of official conduct? Governments for the most part, acting in their capacity as representatives of the governed. But ‘ethics in government’ policies are meant to indicate commitment to higher standards than those reflected in everyday practices of government ethics, particularly by elected politicians. The norms of everyday government ethics are one thing; the norms proclaimed in ‘ethics in government’ policies are another thing altogether.

Where does the public fit in? Not surprisingly, publics get confused by claims and counter-claims. Democratic regimes at least pretend that the right to hold political power is determined by ‘the people’, usually through regular elections to ensure

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that the power of government rests in the hands of political leaders and parties reflecting majority popular support. The equality principle at the base of the democratic edifice means nothing if it does not imply that government rests on the consent of the governed. Even when we know that public power is distributed in grossly unequal ways, with substantial parts of it held by persons behind the scenes who never have to stoop to win popular approval, we still cling to the democratic ideal of ‘people power’. Democratic elections might be far from perfect as exercises of ‘people power’, but at least they illustrate the obligation on those seeking election to offices of representative government to engage in public debate to try to win over public support as the legitimate basis of their rule. Politicians engage in many other forms of struggle, often behind closed doors, but elections remain as one of the most obvious obligations of the democratic duty to keep the public on side. Between elections, democratic governments face a variety of other forms of public accountability: justifying their legislative agenda, responding to elected representatives in the political assembly, dealing with the press and public media, managing party dissent, coping with criticism from interest groups and so on.1 Democratic accountability serves many functions, of which the most basic is perhaps the need for governments to justify their continued public legitimacy. Governments can fall between elections if their coalition of public and parliamentary support weakens or fragments, often in the wake of internal splits or factional warfare. Serving governments never stop working the seams of their support, with as much energy reserved for public display as for internal discipline. Hence the endless public talk by democratic governments, using their remarkable power over mass communications to recharge the battery of ‘people power’ as the source of their public legitimacy. Governments thus ‘talk up’ their public confidence and electoral support.The currently fashionable way of ‘talking up’ is to repeat endlessly that ‘this a government committed to listening to the community’.The general point is that democratic governments have no real alternative to talking in public because their continued legitimacy depends on public confidence and support. Governments know that it is better for them to mobilise public support directly than to sit back and wait for it to form from the bottom up. The prominence of ‘opinion formation’ by contemporary democratic governments illustrates the initiative open to governments to get in

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first in shaping public opinion to support the serving government. This practice is at its worst when governments misuse public information schemes intended for community education to promote instead the interests of the governing party. Consistent with this development, government by consent has in practice turned into government by assent. Theories of popular consent imply that the people participate by granting or withholding their consent to government as managed by their representatives. Consent requires more than just a nod of approval, as implied in the call for ‘informed consent’ with its endorsement of the right of those granting consent to wait until they are properly informed. By contrast, assent gets closer to the simple nod of approval, with citizens granting general assent to the right of this or that party to govern in the name of the people. The voting public has no real capacity to set the pace for government priorities or to initiate public policy. For most practical purposes, the ideal of popular consent now becomes operational in various mechanisms of public assent, with the voting public in effect ratifying government initiatives or withdrawing its assent to a serving government.Whatever the theory about democratic equality, the governance partnership in most democracies is far from equal, with mass public participation reduced from the heights of ‘popular government’ to the lowlands of ‘popular assent’.This falls far short of the ideal of democracy as an experiment in ‘people power’, even if it retains some degree of public purchase over government through the requirement that those competing for the power of government must earn the assent of the public to their claim to rule. It is at this point that political science floods the field with ethical terms. Public assent is vital to the ‘legitimacy’ of a government and it is won or lost according to public estimates of the ‘trust’ governments deserve, or of the ‘confidence’ the public is willing to place in governments, or of the ‘respect’ the public grants to governments, or the ‘credibility’ governments have with voters. These terms (legitimacy, trust, confidence, respect, credibility) roll into the ‘terms of trust’ constructed by governments to shore up their public trust and electoral support.2 Levels of legitimacy, public trust, confidence, respect or credibility measure community support for government: citizens are prepared to trust those governments whose leading representatives have demonstrated their reliability and so have won their confidence – which literally means their ‘faith’, particularly faith in the relia-

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bility of representatives to do what they say the community requires. Note this emphasis on the value of reliability: trust is merited by whatever we can place our confidence in or rely on.To place one’s confidence in a government or parties competing for government means to act with faith or assurance that they deserve to occupy offices of high public trust, because they are capable of acting as responsible public officers, protecting the public interest through their commitment to the values of public integrity. Credible public figures are those that can be relied on to act appropriately and do what is required, regardless of their private inclinations. By contrast, faithless public figures are those that can not be relied on to act as they should in public office. Or so our theory holds. Needless to say, this idealised image is at odds with everyday political practices, where many participants base their confidence on the reliability of representatives to protect their partial interests, regardless of the rhetoric about ‘public interest’ examined in chapter 1. Cynics would say that public confidence in government might be better termed the confidence of a variety of competing ‘publics’ in the convergence of their self-interest and that of their chosen representatives. Labour unions have interests in wage protection; industry associations have interests in supports and subsidies; manufacturers have interests in tariffs and protection against imports; importers have interests in tariff changes; established media industries have interests in cross-media concentration; university academics have interests in public investment in higher education; and so on. But I want to show in the next section that the Australian experience provides some hope that democracy can protect the public interest against misplaced private interests. I will do this by drawing on political history to present a dialogue over ethics in Australian government involving two historical voices, one representing the hard truths of realism and another representing the heady truths of idealism.Treat this as an exercise in historical reconstruction which is true to the spirit if not all the concrete details of the Australian experience.

Where does Australia fit in? Australia is typical of a modern democracy facing a range of policy challenges relating to ethics and integrity in public life.Australia was one of the pioneers of constitutional democracy and is now again a pioneer in

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responding to demands being made on the political system to ‘do more’ about ethics in government. International experts on governmental ethics and public integrity look fondly on Australia as a force for good, usually at the level of practical improvement but often at the level of academic discussion. One merit of the Australian experience, then, is that it has generated valuable public and academic debate over the place of ethics in political and public service institutions.This book helps track that debate. I provide no definitive scorecard nor any neat summary of lessons. My primary aim is to keep the debate alive by drawing attention to the options available to policymakers and legislators, and by alerting interested citizens to the significance of the issues that too often remain the preserve of ‘the system’. Although those holding power across Australian public governance have done much to protect the cause of ethics and integrity in Australian public life, greater power and responsibility can still rest with ordinary citizens, who are well placed to evaluate the impacts of government on community life. Australia was once regarded as a model of modern democracy. This does not mean that its politics were more ethical than others or that Australia was governed by a sense of social responsibility unknown elsewhere in the world. But what it did mean is that Australia modelled democracy in ways that only those nations at the forefront of democratic innovation can do. Marian Sawer’s The Ethical State: Social liberalism in Australia provides a good historical investigation of this aspect of Australia’s lost history as a laboratory of democratic innovation.3 Sawer draws in part on earlier work by Frank Castles on Australia’s reputation as a ‘social laboratory’ with a remarkable track-record of institutional experimentation in democratic devices of social security.4 Here I want simply to introduce two of the pioneering international authorities who illustrate the attraction that Australia had for analysts of democracy: the politician James Bryce and the philosopher Henry Jones, both of whom looked to Australia after Federation in 1901 to model many of the qualities of modern democracy. The two perspectives are quite different: one grounded in political realism, the other loftily idealistic. Neither is without prejudice to contemporary ears. Both are traditional male ‘Anglo’ voices whose inattention to sexual and racial equality now qualifies their moral authority over us. Despite these limitations, this combination of realist and idealist perspectives nicely captures the range of ethical possibilities facing the new

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nation.The perspectives are not mutually exclusive but they highlight different potentialities for democracy in Australia, with contrasting expectations of the place of ethics in political life. As a practical matter, Australian political development has moved in and out of both perspectives, sometimes illustrating its high potential for ethical politics but more often showing the shortfall between promise and reality. These contending sets of expectations were presented at a time when Australia stood out as the latest ‘new nation’ and the first to enter the new century, and indeed the world, as the result of a free and fair popular vote, occasioned by the need for referendums to ratify the proposed new constitutional order before the Commonwealth of Australia was officially inaugurated in 1901. The exemplary realist is the law professor turned statesman James Bryce, one of the first great students of comparative democratic government whose 1921 Modern Democracies remains a classic work investigating the legal and social constitution of modern democracy.5 The second authority is a very influential representative of the British school of philosophical idealism: Henry Jones, professor of moral philosophy at the University of Glasgow.6 Both commentators visited the Commonwealth in its early years before the First World War and both wrote these and other works of valuable international scholarship that drew attention to the nature of democracy in Australia. Here I simply want to highlight some central aspects of ethics and politics that caught their attention and that continue to serve as markers of the distinctive place of Australia in the international story of modern democracy.

Political realism I begin with the voice of realism. Bryce had a history of scholarly curiosity about Australia that led to his visit on a lecturing tour just a few years after a similar tour by our voice of idealism, Henry Jones. Bryce published a series of studies of democracy in Australia and was probably the first international authority to take scholarly note of the Australian Constitution.7 Bryce was puzzled by the combination of British traditions of responsible parliamentary government and US traditions of federal division of powers under a written constitution. At the time of Federation, Bryce was one of the most influential international analysts of constitutional government and he drew international attention to Australia as an experiment in constitutional democracy with remarkably few limitations on popular power and

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the responsibilities of governing majorities. His realism is evident in his hardnosed expectation that class-based political parties, such as the emerging Australian Labor Party, would overrun the legal niceties of the constitutional order, close the door on past practices of responsible parliamentary government and open the door to future irresponsible party government. Bryce later reported that he was mistaken in fearing that the ethics of party government would swamp the ethics of parliamentary government, but he remained convinced that Australia showcased the many differences between the democratic ideal of popular government and the operational reality of party government, with minimal checks and balances on governing parties. To Bryce, the distinctive feature of Australia was that at the time it ‘represents the high-water mark of popular government. It is penetrated by the spirit of democracy.’ In his view,Australia was more democratic than Britain because it did not entrench traditional forms of class rule by social establishments. It was also more democratic than the United States because of its more flexible parliamentary system of governance, based on a universal franchise with both parliamentary chambers directly elected by the people. Britain and the United States also gave more political power to established wealth than did Australia. For Bryce, popular sovereignty had found a safe haven in Australia, where the political institutions allowed the people’s elected representatives to ‘give effect to their wishes with incomparable promptitude’.8 Contemplating a regime of a constitutional democracy that was very open to popular power, he wondered how elected political leaders would withstand the temptations of populism. He also wondered how the people themselves would withstand populism, including populist leaders. Bryce thus looked to Australia to learn more about relationships between elites and masses, and lessons about cultivating a fresh democratic combination of responsible political leadership and popular civic duty. Would Australian political leaders take the line of least resistance and play the populist card? Would Australian voters allow themselves to be sold short by the sectional ploys of partisan schemers? Australian political leadership emerges out of the constitutional framework of responsible parliamentary government, and Bryce understands the institutional design implicit in that framework. Although this design contains very few direct inducements for the political virtues associated with responsible parliamentary leadership, it does contain a range of relevant if indirect measures designed to suppress the political vices of incompatible forms of political

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leadership. The Australian political order contains a variety of institutions (for example written constitution, federalism, bicameralism, separation of powers with an independent judiciary) with many checks and balances which act as obstacles to the ambition of populist leaders intent on mobilising a popular faction. But as Bryce emphasises, Australia is distinctive by virtue of its pronounced democracy, with an historically progressive franchise allowing voters directly to elect both federal chambers and to alter the Constitution through referendum. Australia has many formal safeguards against populism but also unprecedented popular power. Possible legal devices include the involuntary restraints on executive power found in written constitutions. Possible moral devices include the less reliable but no less valuable voluntary restraints found in the character and political morality of party leaders, a theme I examine in greater depth in the following chapters. Fearful of the capacity of a governing party to dominate the representation of political interests, Bryce was hopeful that party competition within parliament could promote leadership with broadly public rather than simply narrowly partisan responsibilities. In his realistic view, party government is good to the extent that it rests on party competition between two alternating major parties as found in systems of ‘responsible parliamentary government’.9 Bryce reluctantly conceded that things had not worked out in Australia as poorly as he had originally feared, thanks to the surviving traces of responsibility among parliamentary leaders and of civic-mindedness among voters.10 This amounts to a backhanded compliment about the place of political ethics in this very pragmatic democracy. I will have more to say about Bryce in later chapters when I investigate populist leadership. Bryce recognised that the Australian political order had few restraints against populism other than the good sense of the political leaders of the major parties not to ignite populist fear of their partisan adversaries when competing for electoral popularity. Never really an enthusiast for democratic idealism, Bryce placed greater store on institutional safeguards against zealous popular factions, hoping that constitutional checks and balances would filter out the worst excesses of immoderate leadership. Spurning ethical idealism and any other ‘chimeras buzzing in emptiness’, his perspective on ethical democracy is a frankly elitist one, but one that fears that the greatest challenge to democratic ethics is more likely to derive from zealous partisan leaders than from their trusting if

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misguided followers. Conceding in the realist manner that ‘there is only one form of government’– that being ‘the Rule of the Few’ – Bryce ventured that ‘the excellence of a democracy largely depends on the extent to which the number of those who really rule by virtue of their intelligence and their activity can be increased, so whatever stimulates these qualities strengthens a democratic government and raises its quality’.11 Bryce understood his own political science as one such ‘stimulant’ to responsible public leadership – if Australian political activists would ever heed his views.

Ethical idealism From other perspectives, other stimulants would emerge. Bryce’s realism can be compared with Jones’ idealism, which is an outstanding example of progressive liberal thinking attracted to the new nation of Australia as a site for a social experiment. Whereas Bryce looks to the ethical leadership of conscientious self-reliant individuals, in and out of the governing parties, Jones looks forward to a new era of collective reliance reinforced by shared ethical principle. Bryce approached ethics in terms of the structures of democratic government; Jones approached ethics more broadly, in terms of the relationships in democratic society. Jones still has a high reputation as one of the most important of the socalled British idealists.This fascinating school of socially applied philosophy reached its peak around the time of Federation, providing the world with something of a communitarian ethic to overcome defects in what it saw as the socially irresponsible individualist ethic celebrated by earlier utilitarian political thought. Jones has been called ‘the most eminent philosopher ever to have visited Australia’, meaning the most eminent ever to attempt to launch a social doctrine or public philosophy downunder.12 Remarkably, according to the same authority,‘Jones was quite explicit, and unequivocal, about his wish that idealism become the practical creed of Australia’. Even more remarkably, Jones seems to have had a significant impact on Alfred Deakin as well as a number of early Labor activists, including the young HV Evatt.13 Jones saw Australia as an open page awaiting his entry on citizenship. Citizenship was the outstanding theme of British idealism, with a vision of democracy as a social network of shared associations based on common ethical principles. Democratic citizenship prides itself on its shared responsibility for collective welfare. In contrast to classical liberals who had little

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time for a large or intrusive state, the British idealists took up the cause of active state intervention or what is now called ‘the enabling state’: the state as facilitator or enabler of self-development for individuals through the better provision of social services. This version of the welfare state came wrapped in the colours of a distinctive social philosophy, celebrating the state ‘as the sustainer of a moral world within which rights and obligations emanate from the community, and individuals are afforded the opportunity to achieve their maximum potential’.14 Like Bryce, Jones was politically a member of the British Liberals and again like Bryce was an active campaigner for mass educational reform. But Jones took the high road of moral reform, in contrast to Bryce’s lower road of constitutional tinkering. Jones’ textbook on democratic civics, Idealism as a Practical Creed, was first delivered as a set of lectures at Sydney University and published soon after, in 1910, by Glasgow University; it is dedicated to ‘the Australian people’. The invitation to tour Australia reflected the high reputation Jones already had in Australian academic and literary circles, particularly among those with an interest in the agenda of progressive politics associated with Alfred Deakin’s early administrations and emerging Labor social theorising.This suggests that the substance of what Jones had to say was not altogether unexpected and that it reflected an important side of Australian political opinion (alas, one not prominently noted by those who label Australia as pragmatic and utilitarian) that was intuitively attracted to ethical idealism. Jones’ teaching was taken up by leading Australian political activists interested in framing a social philosophy for progressive reform.15 What ethical commitment did Jones hope Australia might adopt? An outstanding feature of his lectures is his theme of ‘mutual obligation’, a term then new to international social theory.16 This term captures the general spirit of Jones’ ethical idealism, with its call to do battle against self-interested individualism. Mutual obligation in this sense of recognising one’s duties to assist the self-development of others means that social ethics is not an optional extra but a core requirement of democratic citizenship. Democracy begins with a principle of equality but is conventionally read as implying that each person should take care of their own interests, leaving a minimal role for government to help only those who can not help themselves. This reflects a robust ethical realism, with duties beginning at home as it were, managing one’s own affairs in a competitive and potentially hostile social environment. Jones’ ethical idealism takes issue with the

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basic antagonistic relationship between self and society, substituting a model of ethical perfectionism in place of this picture of self-regarding protectionism.The model of perfectionism informing ethical idealism challenges government to do all it can to bring together state and citizen under ‘one ethical spirit’.17 The Australian tradition of state paternalism is not a good picture of ethical perfectionism. Jones appreciated that protectionism has always been fondly regarded in Australia, and no version of reformist perfectionism had ever made much progress against the tides of Australian political cynicism. Something of a collectivist, Jones reminded his Australian audience that he held no brief for ‘the impractical and un-ethical character of the Socialism of the present’. Never one to flatter Australian national prejudices, Jones clearly stated his wariness about the Australian inclination towards tariffs and protectionism, which he saw as inappropriate at a time when ‘the whole world is becoming one mart’.18 Jones acknowledged that Australian social sentiment was practical and self-interested. He admitted that Australia was a challenging country where people have been ‘long engaged in an absorbing struggle with outward and secular things’, striving ‘to tame a vast continent’ under the control of ‘an independent and self-sufficient State’. The Australian character had developed into a people ‘to whom the secular interests of the passing day are engrossing’. But things were changing. In the remote past, Australia was understood to be ‘a poor continent, of no account in the world’s mart’; but Australia was now ‘a young nation, with powers not yet defined, and possibilities not yet circumscribed’. In the early years of the new century, Australia illustrates the emergence of ‘a single people, conscious of one political life’. Jones did his best to drive home to his Australian audience the great opportunity facing them as ‘a new people amidst the lonely silence of a vast continent’. As a philosopher, Jones hoped that with the formal construction of Federation now complete,Australians would ‘with a more serious intent and a more deliberate purpose devote yourselves to the contemplation of the world within yourselves, the world in which ideals are the only powers’.19 Stern and austere stuff, indeed. In an attempt to moderate some of his daunting idealism, Jones tried a different tack and called on his Australian audience to begin not with ideal constructs but with ‘an imperfect State with imperfect citizens. Nor need we travel far for our examples.’ Not

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meaning to isolate Australia, Jones conceded that in any political system either the state or the citizens or both could become ‘morally crude’.This form of raw ethical development found its political expression in those states where political representation was dominated by sectional or class interests, preventing those in positions of political leadership from upgrading and transforming the prevailing sectional interests. Conventional politics turns on the competition of different and potentially antagonistic interests, and conventional political reform looks to the alternation of parties in government as the primary way of loosening the permanent hold of interests on the state. But for Jones the core political problem is not economic or party-political but ‘ethical in character’. Conventional politics is limited to the churn of alternating interests as competing political leaders struggle for power.20 Against this wearying pragmatism, Jones poses the paradox that ‘questions of statesmanship are moral questions, even though morality is the one thing that no state can enforce’.21 While the state can elicit and promote ethical responsibility, it can never successfully enforce or legislate a sense of social ethics among citizens. The ideal role for the state is to draw out into more prominent public space the power of ethical leadership embedded in those citizens whose social responsibility is already well informed, so that state mechanisms can be more properly managed to provide for the common good. Where does the theory of ethical idealism meet Australian reality? Idealism as Jones explains it is a social philosophy with a very practical impact. It is the perfect medium for effective democracy because it holds out the promise of genuine political freedom, for citizens and for states. Ethical idealism is the progressive development of liberalism from its earliest phase of rebellious emancipation of individual liberties to the mature phase of the constructive emancipation of social liberties. Ethics is the proper management of emancipation, understood by Jones to be ‘the only alphabet of true liberty’. Ethical liberalism overcomes the competitive restlessness of clashing individualism and tries to correct the characteristic defect of liberal democracy, which is the social conviction of the liberated people to ‘have its own way, and follow its own thoughts, at any cost and in any manner it pleases’.22 Ethical idealism is a doctrine of social reform. It makes its progress through the world by gathering support for ‘the task of levelling upwards’.

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Acknowledging the practical bent of his audience, Jones conceded that idealism makes little sense except in terms of ‘detailed maxims of personal conduct’, and he admitted that these have yet to be devised in any concrete sense; so much depends on the political circumstances in which the experiment occurs. Hence Jones’ appeal to Australia as a very promising testing ground for the practical relevance of this lofty program of the ‘ethics of idealism’. By this he probably meant that Australia would indeed provide a thorough test in a social environment not naturally biased in favour of a positive outcome. Australia might thus disprove the ‘ethics of idealism’ – a price that Jones was prepared to pay. Modestly suggesting that ethical idealism had yet to find its philosopher, Jones sought to encourage Australian interest by also suggesting that Australia was not behind other nations if it found itself interested in his ethical challenges. He reported that ‘the polity that is latent in its ideals has not been devised’. Jones completed his lectures by inviting Australia ‘to try by actual experiment how far the faith of the Idealists will stand the strain of a nation’s practice’.23 Defining an ethical democracy, Jones argued against the conventional view that ‘all will be well with the State provided its government be democratic’.Against this permissive view, Jones argued that ‘a state may be democratic … and still be corrupt and degenerate’. Democracy can be good or bad and is not, of itself, worthy of unqualified admiration. In his view, true democracy involves ‘much more than a claim to rule on the part of all the people. It is the consciousness of the obligation and the privilege of service.’The ethical performance of a democratic government is not measured by the extent of popular power but by the people’s commitment to the public good. For Jones, the power of ethics comes not from the governors but from the governed: ‘Any government is good whose primary purpose is to serve the permanent interests of the governed, and which seeks to attain this end by evolving the character of its citizens, in which alone is its true strength.’24 Australia held open the promise of a democratic civic character. But this would not happen by chance or by leaving things as Jones found them. Good government is less a matter of formal political structures and more a matter of ‘a mode of life in which a whole people seeks a common good’. Looking ahead at Australia, Jones noted the danger that a democratic people ‘should at first build its new social and religious edifices with slack mortar’. But the truth was that ‘the removal of external restraints makes inner

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restraint imperative’. Ethics can supply the material for inner restraint in the form of the ‘deepened solidarity of modern citizenship’ based on shared commitment to the virtues of social co-operation. In this way ‘genuine democracy demands the highest civic virtues’, and a democratic state has to be prepared to cultivate these socially regarding virtues ahead of self-regarding interests. Does Australia or any other democracy demand of itself the highest civic virtues? Perhaps the solution lies in better elected representatives who can guide popular choice: or perhaps a better solution lies in better public education by figures like Jones, who was convinced that ‘our statesmen devote themselves to making followers’ rather than to their highest public duty, which was not to popularity or office but ‘to enquiry’. For Jones, the last word was that democracy in Australia required a ‘science of social life’ capable of educating political participants about the ends of ethical idealism and the means of practical implementation.25

Conclusion This review of contrasting perspectives shows how necessary it is to keep a balanced view, moving between the hard edges of realism and the inspiration of idealism when assessing the promise and performance of ethics in democratic governments. Australia is a case in point, one that continues to attract realists and idealists, who provide the creative tension necessary for fruitful ethical argument.To understand the strength and weakness of public policies shaping ethics regimes in Australia and comparable democracies we need to see the issues from both perspectives, turning our mind in each direction as we walk around the amalgam of hope and cynicism holding ethics regimes together.Although this book draws on many of the growing number of studies of government misconduct, my intention is not to add to the case studies and portraits of mischief and mendacity in government. I will refer to many instances of misconduct by government officials, but my primary focus is on institutions rather than individuals, in the hope that I can use the Australian experience to move public discussion beyond specific instances of misconduct to the more general issue of appropriate standards of ethical conduct and, more fundamentally, of ethical argument in contemporary democracies. My contention is that ethics rules and agencies are now institutions of considerable power over public life, deserving investigation as policy instruments of growing importance, performing a variety of public functions from the

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decent ones of standards-setting to the predictably slippery ones of window-dressing. The opening chapter mapped out two orientations to government ethics, drawing on the complementary values of personal responsibility and public accountability. This chapter has filled in this map by plotting the related values of ethical idealism and ethical realism.The two explorers of the Australian governmental landscape have provided us with richer cases for the mix of idealistic responsibility and realistic accountability. The significance for government ethics is that we now have quite a sophisticated Australian-based argument over the relative importance of culture and institutions in securing ethical government: meaning personal as well as political culture as highlighted by Jones’ case for ethical idealism, and party as well as parliamentary institutions in Bryce’s case for ethical realism. The case for culture holds that government ethical practices derive from two sources of culture, the personal and the political, which shape each other in quite fundamental ways. In this view, proponents of ethical government should see their task as one of civic education in the virtues of citizenship. The corresponding case for institutions holds that while government practices are deeply affected by both personal and political culture, constitutionalism offers constraints on the potential reach of irresponsible political conduct – through institutional checks and balances. In this view, ethical government is best secured through respect by political activists for the norms of procedural integrity implied in parliamentary government. Both perspectives feed into contemporary debates over the balance of personal responsibility and public accountability. Both institutions and culture are important to the ‘terms of trust’. To use the language of regulatory scholarship, we ‘institutionalize distrust so that we can enculturate trust’.26 Just as importantly, the two perspectives converge at the point of political leadership, which is where the balance is set and where the ethical tone of any government is established. A culture of ethical public leadership merges with public institutions capable of supporting responsible political leadership.The following chapters go straight to this issue of ethical leadership, showing how cultural and institutional sources can reinforce one another. Chapter 3 elaborates a standard or benchmark of prudential leadership derived from classical political science:‘from the founder of our science – Aristotle himself ’, to quote James Bryce’s 1908 presiden-

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tial address to the American Political Science Association.27 Chapter 4 sorts through debates over populist leadership in Australia and comparable democracies against this standard of prudential leadership. Subsequent chapters drill deeper into the system of government, examining arguments over the use and abuse of ethics policies by ministers, elected members of parliament, and bureaucrats. Chapters 5 and 6 focus on domestic issues of national governance; chapter 7 deals with broader material by investigating the place of ethics in the management of international issues of war and armed intervention. Chapter 8 returns the focus to public integrity in democratic regimes, contrasting the tight frameworks relied on by accountability agencies and the looser frameworks used by enthusiasts for responsible leadership.

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PA RT I I

ETHICS IN POLITICAL T H E O RY


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Chapter 3

PRUDENTIAL LEADERSHIP Democracy and Deliberation

This chapter is one of two dealing with ethics in theories of government and politics.This and the following companion chapter apply the theoretical framework to debates over ethical issues in Australian political leadership, using debate over the political ethics of Australian ‘populism’ as the point of focus. Chapter 2 left us with expectations about political leadership raised by both realist and idealist approaches to democratic government. The fact that both approaches singled out the role of political leadership in ethical government underlines the tensions experienced at leadership levels in government. Reasonable cases can be made that the primary leadership task is either to be realistic about the dreams of idealism or alternatively idealistic in the face of unimaginative realism. There can be good leaders on either side of this divide, with the very best incorporating elements from both styles.These leadership tensions are all the more acute in democratic systems where political leaders are expected to represent their communities. Realist models of leadership might tend to favour representation of hard and definitive material interests; idealist models might tend to favour soft-edged alternatives like social or community interests. Debates over the ethics of representation canvass the merits of many leadership mixes of idealism and realism.1 Although Australian leadership practices combine elements from both models, theory has fallen behind practice.Very little has been done to revise or refine Australian models of ethical political leadership since Bryce and Jones devised their frameworks.There is in fact very little analytical scholarship on the ethical practices of Australian political leaders.2 Cynics will say that this probably reflects the paucity of Australian political ethics.

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PA R T I I • E T H I C S I N P O L I T I C A L T H E O R Y

Certainly, the growth area is studies in political corruption, and this development might tell us something important about the prevailing character of political leadership in Australia.3 But the question remains: what ethical standards and benchmarks are appropriate when investigating theories and practices of ethical political leadership? Is it possible to ‘take ethics seriously’ when examining practices of political leaders in a democracy like Australia which falls between the high promise of idealism and the lower practices of realism? I answer yes, using this chapter to take seriously the ethical potential found in leaders’ exercise of political prudence – which was classically understood as the characteristic art or skill of political leaders, allowing them to blend realism and idealism according to their judgment of political circumstances. Prudence might be an ancient and venerable virtue associated with practical wisdom but it is also the term now being used in a school of leadership studies analysing ‘prudential leadership’.4 There are many other approaches, but this one is new to the hard realities of Australian politics, where it has yet to be tested.This chapter supplies a provisional testing. All analysts, particularly critics of the unethical nature of populist leadership, need standards for measuring the ethics of political leadership. Can ‘prudential leadership’ serve that purpose? The prudential leadership literature follows Cicero in using the Latin term ‘prudence’ (derived from the Latin for ‘to see ahead’) to refer to Aristotle’s Greek concept of ‘phronesis’ or practical wisdom.5 This chapter applies this approach to the study of Australian politics by revising prevailing concepts of leadership rather than investigating case studies of typical leaders. My aim is to clarify the benchmark of ethical political leadership in Australia and similar democracies in chapter 4. Prudence sounds too cautious and constrained to act as a model for ethical politics. Australian leaders do not naturally speak in terms of prudential leadership. They follow the lead of utilitarian philosopher Jeremy Bentham in this, and perhaps many other things, by thinking of prudence as personal rather than political, as the self-interested regulator of personal affairs. This is consistent with Bentham’s view that the ‘rules of prudence’ are those maxims of self-management that vary greatly from person to person, depending on their personal preferences and scale of utility.6 Used in this sense, everyone exercises prudence when taking a sober second look at what is in their self-interest. It is an orthodoxy of conventional wisdom that prudence ‘may be said to be merely Wisdom made more definite by the

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acceptance of Self-interest as its sole ultimate end: the habit of calculating carefully the best means to the attainment of our own interest’, to quote the great British authority on utilitarian ethics, Henry Sidgwick.7 By contrast, classical prudence is other-regarding rather than selfregarding. Classically, prudence or practical wisdom is a virtue of insight rather than interest.8 Insight has something to do with what President Bush senior called ‘the vision thing’, meaning the big picture of shared public purpose. The insight of prudence differs, however, because it is concrete rather than abstract, working through practical ethical options and not, in the manner of President Bush senior, gesturing where words fail to articulate high moral purpose. Prudence is an intellectual virtue associated with ‘moral imagination’, the virtue enabling one to see things for what they really are, associated with the leadership skill of appreciating the big picture of political justice and, most valuably, discerning innovative ways of making justice come alive.9 To his credit, Prime Minister John Howard has no track-record of calling attention to his exemplary political prudence. Howard has made a recent career of reacting to the big-picture fetish of former prime minister Paul Keating, and he is renowned for his often-stated public suspicion of the ease with which political leaders succumb to ‘hubris’ (arrogance). Yet Howard is highly praised for his political instincts or ‘nous’ (smarts). ‘Hubris’ and ‘nous’ are both Greek terms still clearly useful to help classify styles of political leadership. So too ‘prudence’, in the sense that leadership scholars find it in the classical political philosophy of Aristotle, particularly in his investigation of ethical decision-making expected of political rulers. Prudence is at the core of Aristotle’s theory of statesmanship, the main measure of the highest quality of political leaders.10 But we can find lesser versions closer to home. Australian public life is not altogether silent about prudential leadership. Prudential supervision describes the type of leadership exercised by a range of regulatory agencies, such as the Reserve Bank of Australia in its oversight of the monetary system and the Australian Securities and Investment Commission in its oversight of the financial services sector. Prudence really comes into its own in the operations of the Australian Prudential Regulation Authority (APRA), the regulator of the banking sector responsible for keeping checks on the risk-management strategies of banks. As used in this sense, the institutional leadership of APRA and related agencies takes the form

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of ruling over the prudential management of public funds by licensed banking and financial enterprises.These enterprises may lose their licence to operate if the relevant central agency rules that they have been imprudent with public funds to the point where undue risks have been taken without sufficient protection for investors’ funds. Prudence here refers to a double test of responsible conduct: prudent decision-making by the enterprise and prudent review by the central agency. The larger point is that the ordinary language of public life does incorporate notions of prudence, especially where assessment of responsible conduct is a matter of judgment, initially exercised by the enterprise and subsequently exercised by the regulatory authority. If political leaders are expected to ‘take ethics seriously’, then Aristotle provides a classic argument about the character of ethical seriousness in political life. This argument is not simply an endorsement of what I have termed the option for ethical idealism. Nor is it simply an endorsement of pragmatic realism, although it is realistically open to the political use of ethics as well as to the ethical use of politics. There is something deeply unsentimental about Aristotle’s orientation which is conveyed by his defence of ‘political seriousness, seriousness in the use of political power’ and what has been called his ‘priority for duties of careful and responsible calculation, for the virtues of prudence and “cleverness”, cleverness being that Aristotelian component in moral virtue which political responsibility demands’.11

Prudential leadership The task now is to devise a model of prudential leadership as a useful benchmark for evaluating practices of Australian and other forms of democratic leadership. Prudence is not simply ‘seeing things’ but also ‘doing things’. It is the art of practical judgment, meaning judgment about good practice. Prudent persons have what we term a ‘good judgment’ because they know what is required under the circumstances. Sound judgment reflects sound deliberation in weighing up the options and then promotes sound decisionmaking about the choice of options.To simplify: prudential leadership manages political deliberation in order to make sound decisions. Political prudence is an action-oriented virtue, putting the judgment into executive decision-making, whether the deliberation and resultant decisions involve one outstanding political executive or a large democratic collective.12

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As an art or practical skill, prudence differs from the scientific knowledge associated with theoretical judgment. Prudence is not wisdom as such but wisdom about justice and its place in political affairs. Aristotle provides a classic account of prudence or practical judgment as the standard feature of political rule: that is, the standard against which we evaluate political rule.13 The exercise of prudential judgment is what politicians do, and there can be no politics, even in a constitutional democracy, without political judgment. Not all rulers judge well, but we judge them according to their capacity for prudential judgment. Not even the deeply entrenched rule of law can dispense with the discretionary judgment of those best placed to judge the rightness or wrongness of courses of action.Although the judiciary might seem the normal home of judgment, Aristotle is clear that legislative and executive officials also exercise judgment as an inevitable and unavoidable element of political life.The sort of judging undertaken by the judiciary might not rise to the heights of political wisdom, just as the sort of judging undertaken by politicians might not descend into the legal niceties preferred by judges. But judging it all is, demonstrating the range of calls on prudence made by the governmental system. For Aristotle, prudence at its best is ethical judgment about politics.14 Prudence takes on its political quality because it judges the appropriateness of conduct to the public purposes of the organisation or regime in question. Ethics enters this picture because such judgments have to take into account the ethical value of the conduct or potential course of conduct being judged. Aristotle identifies the importance of ethical conduct for healthy political life. Even a democracy, a regime not automatically favoured by Aristotle as the highest form of political order, becomes a better democracy to the extent that its political participants share a commitment to a set of common civic virtues. Strictly speaking, democracy means popular rule in contrast to the rule of an established elite or ruler, regardless of how well-meaning or talented such an elite or ruler might be or claim to be. But just as traditional elites can be blinded by their self-interest, so too democracies vary according to the prevailing self-interest of this or that people. In Aristotle’s scheme, democracy will be better democracy where the common civic virtues restrain the self-interest of those who are politically active and so protect the wider public interest. Democracies vary according to the economic, social, geographic and other interests of the people, and also according to the shared or common civic virtues favoured

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by the people.These civic virtues are ‘common’ in the sense of defining the common qualities of public life. They are not ‘common’ in the sense of sprouting up anywhere, anytime. Aristotle had in mind the qualities of political decency and fair-mindedness which he acknowledged as often more evident in ordinary people than in wealthy oligarchs or established power-holders. Where does political prudence fit into this classical picture of democratic rule? Students of political leadership trace the analysis of prudence back to Aristotle’s investigation of the place of ethics in politics.15 Put briefly, Aristotle approaches ethics and politics as two parts of a larger whole: ethics dealing with things individual, as it were, and politics with things institutional.The study of ethics focuses on the virtues required for the good life of human excellence and the study of politics focuses on the institutional arrangements, including leadership institutions, required for sustainable political justice. Prudence comes to sight as ‘practical wisdom’ in Aristotle’s anatomy of the intellectual virtues. It is initially located between the general art of scientific knowledge and the most general end-state, wisdom.16 Prudence is a kind of wisdom more concerned with practice than theory: we can think of it as a knowledgeable art as distinct from a state of perfected knowledge. Prudence is the art of managing particulars, political prudence being the art of managing the particulars of political deliberation, either personally in the case of sole rulers or collectively in the case of democratic rulers. Of course, democratic regimes share power widely and it is possible that those with political wisdom might not be deferred to, or be given opportunities to exercise their political skill. The challenge for the study of ethics is to understand the virtues; but the challenge for the study of politics is to understand how virtue can rule. Alas, every claim to rule pretends that it speaks on behalf of some virtue. Even demagogues justify themselves as mere voices of the people. Every political leader points to a socially valuable skill needed for political development that they bring to the job. Aristotle makes a crude but useful distinction between claims that really reflect on the leaders’ cleverness and those reflecting practical wisdom. These two types of claims to leadership are often hard to distinguish. Clever politicians can achieve what they set out to achieve, but in many cases that goal is purely a matter of personal interest.As Aristotle puts it:‘If the mark be noble, the cleverness is laudable;

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but if the mark is bad, the cleverness is mere smartness.’17 Practical wisdom reflects the leader’s own virtue, because, again using Aristotle’s words, it is virtue and not simply ambition or determination that ‘makes us aim at the right mark, and practical wisdom makes us take the right means’.18 Prudence is that very special practical knowledge displayed by those who deliberate well about ‘the things that are good and bad’ for humans; and judgment is tested by its ability to determine the right course of action by reference to what Aristotle simply calls the ‘just and noble and good’.19 Aristotle considers practical wisdom to be typical of the highest political art because he sees politics as characteristically involving disagreement and argument over a fair distribution of social goods. Prudence is the core of the art of statesmanship which can see what is right and can manage the political realm so that there is public support for the right course of action. Prudence is not theoretical knowledge about ‘the good’ as such but a practical ability to make choices about the best feasible option under concrete circumstances. In contemporary terms, prudence translates sound judgments of policy into sustainable government programs by choosing appropriate political strategies to promote just outcomes.Thus prudence is political knowledge of what is good for us, here and now. Prudence focuses on justice rather than simply on ‘the good’, and prudential leadership facilitates deliberation about the best that is politically feasible.20 Practical wisdom is the core competency required for political rule: Aristotle states that it ‘issues commands, since its end is what ought to be done or not to be done’.21 But who complies with these commands? The political challenge in democracies is to structure public decision-making so that the large body of active political participants can come to an agreement in support of the best leadership advice available. Democratic regimes have a choice over who should hold leadership offices, so that democratic leaders have to convince the people of the merits of their advice. Practical wisdom will only ever have practical political effect if it wins popular support, and Aristotle frankly fears that more often than not democracies hand over power to demagogues rather than to genuine statesmen. The term ‘demagogue’ originally meant simply a popular leader, but it took on its populist meaning because so many democratic leaders came to power by flattering the people and disguising their real interests in using political office for their own ends.22 Demagogues are the democratic norm,Aristotle suggests, so much so that he gives few examples of this type of populist

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leader in contrast to his singular example of the model of the practically wise democratic ruler, who is Pericles.23 We speak of ‘Periclean Athens’ as though this one person led Athens to its greatness as a viable democracy. Aristotle, by contrast, simply speaks of the greatness of Pericles. In relation to ethics, Pericles emerges as an outstanding example of the practical virtues. In relation to politics, Athens emerges as the outstanding example of a democratic regime. These two perspectives are joined when we consider that Athens made Pericles as much as Pericles made Athens. Athens elected Pericles and that choice reflects well on Athenian democracy: a democracy with the good sense to know its own limitations and the courage to choose as a leader someone with outstanding judgment. Pericles could have taken the populist option and remained in power in Athens if he had been prepared to subordinate his ambitious plans to make Athens a model of a virtuous democracy. Was he prepared to hold on to power and yet let Athens fall short of the civic virtue of which it was capable? A populist leader would have taken this option, and many of Pericles’ opponents did, charging him with disloyalty to the democracy that had made him the public figure he was. We do not know precisely what lessons Aristotle had in mind in drawing out the singular greatness of Pericles. One possibility is that he wants us to ask the question: how many Pericles does it take to make a democracy like Athens? What if there is only one at any one time and perhaps not even one for much of the time? If Pericles models the best of political prudence, what might be a second-best solution when there is no Pericles at hand? Aristotle’s Politics makes only a passing reference to Pericles as a moderniser of Athenian democracy (for example, he introduced payment for jury service), with the rest of this foundational text in political analysis teasing out various institutional solutions to protect the public interest against the inevitable tendency of each type of political order to promote the interests of its distinctive ruling class.24 One lesson might be that political development should not be made dependent on the leadership potential of any chance candidate who measures up to Aristotle’s demanding standards of ethical leadership – or of any of the many candidates who regularly pretend to so measure up.This lesson comes as no surprise to Australians, who have had more than their fair share of prima donna leaders, most of whom have done less damage than we might have feared precisely because of the system of dispersed leadership in the Australian constitutional order. More on this

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below, after a second consideration of Bryce’s estimate of the potential for good political leadership under the institutions of Australian democracy. The lesson that I take from Aristotle’s rarified account of political prudence is that statesmanship is a very rare quality. We see it in the figure of Pericles, but then we have to ask why Pericles figures so little in Aristotle’s thematic account of political science in the Politics. Aristotle’s ethical writings identify the highest standard for judging ethical political leadership, but his political writings shift the focus from theory to political practice, with minimal attention to Pericles. Where is practical wisdom best exemplified in the Politics? The answer is in the handiwork of Aristotle himself, which draws our attention away from immoderate hope for the great leadership of exceptional rulers to a more measured interest in statesmanship capable of crafting valuable political institutions for managing political conflict. Pericles had many virtues, but even his prudence fell short of Aristotle’s political wisdom.25 The need for political prudence remains, but the expectation turns from the need for singular greatness to more mundane institutional possibilities, including something resembling the messy constitutional checks and balances of democratic politics. Aristotle nudges us into accepting that political prudence can emerge in the most unlikely places, including the ranks of the political activists who voted Pericles in and out, if their democratic interests can be moderated to allow open deliberation about the public interest.

Back to Br yce What then are the Australian implications for this scholarly turn to ‘bringing prudence back in’?26 As luck would have it, this recovery of lost leadership arts is remarkably consistent with the general orientation to democratic politics sketched by British statesman James Bryce, whose relevance for Australian politics we noted in chapter 2. Bryce’s anti-doctrinaire realism has something of the tone of Aristotle’s insistence on the artfulness of practical wisdom. Both approach political judgment as an art rather than a science of judgment, with neither believing that any number of institutions and structures can relieve us of the need for political leadership or that any amount of social science can relieve us of the need for the arts of practical judgment. Bryce’s early 20th-century analysis of the institutional foundations of Australian and related democracies has retained its freshness, and still allows

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us to compare many aspects of Australian institutions with those of comparable nations.27 Bryce argues that leadership capacity is conditioned by institutional as well as individual qualities.The individual qualities are ones of character and political morality which aspiring leaders bring to the task of political leadership. But these personal qualities are in turn affected by the institutional qualities of the political framework, as illustrated by the way that systems of responsible parliamentary government promote and reward a type of political morality associated with the norms of ‘responsible parliamentary’ conduct: the tradition of parliamentary norms associated with Australian prime ministers like Alfred Deakin, Robert Menzies and Gough Whitlam, who lived for (and not just off) the parliamentary system. The institutional expectations of political leadership under such parliamentary regimes allow and encourage, even if they do not strictly require, heads of governing parties to act ‘responsibly’ as heads of national governments. This orientation to national responsibility is reinforced by the institutionally appropriate conduct of opposition leaders with their countervailing norms of responsibility. For instance, Deakin, Menzies and Whitlam all led opposition parties at some point in their parliamentary career and their leadership in government was all the stronger for this experience.These opposition norms support practical strategies of holding government leaders publicly accountable for their conduct, in part by ferreting out party interests that exercise undue influence over government decision-making. But the norms of responsible government face challenges. Bryce warned that populism and demagoguery would be the main challenges within the rules of the constitutional system. His argument was that populists and demagogues place democracy in jeopardy by their divisive schemes, which effectively deny citizenship to groups not included in the leader’s constructed category of ‘the people’ or ‘the mainstream’, for example to ruling elites, foreigners, big business, greenies, indigenous peoples. Bryce’s suggestion is that as a condition of democratic sustainability, responsible democratic leadership must construct a less divisive and more encompassing category as the focus of a shared and common political definition. Bryce appeals to citizenship as the appropriately inclusive political category. Citizenship defines the people as one common class of political actors, just as leaders define themselves by their distinctive contributions to defining citizenship – some decidedly less inclusive than others.

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In Bryce’s view, the emerging Australian polity would test the capacity of political leaders to avoid populist leadership in favour of what I have termed prudential leadership, promoting norms of democratic citizenship and building civic capacities appropriate to constitutional democracy. Leadership in modern democracies requires what Bryce recognised as ‘the power of persuasive speech’, but it is an open question whether persuasive leaders have the courage recognised by Bryce as essential if they are to have ‘the faculty of going before others instead of following after others’.28 In this view, populism takes root where political leaders cultivate popular legitimacy for their expansive or unbounded rule, exercised in the name of ‘protecting the people’. This appeal to ‘the people’ is usually couched in terms of protecting a vulnerable segment of the population against privileged elites, class antagonists or foreign threats. Populism is a form of majoritarianism resting on popular fear of perceived threats, external or internal. Populism uses the authority of the people to invest political leaders with extensive executive power, justified as a security against these perceived threats. Typical of the populist leader is the demagogue, a term which, as noted earlier, originally meant simply a popular leader. But in the constitutional perspective represented by Bryce, demagogue has come to mean a divisive leader capable of agitating a political following in the name of the people: ‘one who tries to lure the people by captivating speech, playing upon their passions, or promising to secure for them some benefit’.29 A populist movement is reactionary in the sense that it defines itself by reaction to the threat or domination of competing interests: the many against the few, workers against business, the mainstream against privileged elites, and so on. Bryce’s alternative leadership orientation seeks to encourage political leaders to limit their own ruling power, and indeed popular power, within a constitutional framework of citizenship rights and duties. Leaders with this commitment to prudential leadership would promote the rights and responsibilities of citizens as a common class.This focus on leadership anchored in citizenship reflects Bryce’s own conviction that such an anchor can protect democratic politics ‘against errors into which the people may be betrayed by ignorance, haste or passion’.30 Put in this summary form, Bryce’s version of prudential leadership resembles wishful thinking. What constitutional or institutional basis is there for expecting national leadership from partisan politicians? Part of the

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answer is that Bryce had no easy expectation that Australian political leaders would comply with his understanding of the ideals of democratic citizenship. He appreciates that finally the quality of political leadership draws on the political morality of individual leaders – and this in turn draws on the norms of their party members. Ethics in leadership is in part a question of individual character and in part a question of institutional characteristics, including such inevitable institutions as political parties.Yet Bryce does not reduce the story of political leadership either to fine-grained portraits of individual character or to coarse-grained analysis of institutional characteristics. Australian political leadership emerges out of the constitutional framework of responsible parliamentary government, and Bryce understands the institutional design implicit in that framework. Although this design contains very few direct inducements to the political virtues associated with prudential leadership, it does contain a range of relevant if indirect measures designed to suppress political vices of incompatible forms of political leadership. For instance, the two extremes of oligarchy and direct democracy get screened out while the intermediate regime of representative democracy gets screened in.The Constitution tolerates a wide range of leadership styles in representative democracy, but is intolerant of almost any leadership style associated with oligarchy or direct democracy. The negative formulation of this situation would be that the Australian system works against both oligarchy and direct democracy, at least in their pure forms. The more positive formulation would be that the same system is open to the virtues of responsible leadership even when it is silent on the institutional support for these political virtues. To cite Bryce’s primary example, the Australian constitutional framework is silent about the role of political parties.A tempting conclusion might be that party spirit is inimical to responsible parliamentary leadership – but this is not Bryce’s position, or mine for what it is worth. Fearful of the capacity of a governing party to dominate the Australian parliament, Bryce was hopeful that party competition within parliament could promote leadership with national rather than simply party responsibilities. Party government is good to the extent that it rests on competition between two alternating major parties as found in systems of ‘responsible parliamentary government’.31 Political parties can encourage responsible leadership in political executives in at least three important ways: first, by selecting as party leaders those individuals with capacity to use a civic focus to appeal to a wide and sustainable support base;

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second, by using the parliamentary system of checks and balances to hold governing executives publicly accountable for their leadership performance; third, by consolidating public support around a citizenship agenda which cements a lasting relationship between party leaders and supporters. As we have seen in Bryce’s sketch, the national political system is open to a range of leadership styles, including various forms of factional politics. One factional form is the conservative one of protecting minority interests behind the screen of formal checks and balances, and another is the progressive one of promoting majority interests by taking control over all or most of the countervailing institutions. Both forms require some sort of leaders but neither measures up to Bryce’s civic standard of democratic leadership. In Bryce’s view, citizenship is the underlying spirit of the Constitution, which gives political life to the document’s words. Democratic government is open to a wide variety of public policy ends but all are ranked by their effect on the values and practices of citizenship. Donald Horne provides a contemporary version of this understanding of civic leadership with his analysis of the Australian ‘state’ as a civic rather than nationalist or ethnic category, comprising Australian citizens rather than Australian nationals or Australian ethnics.32 Bryce’s anxiety over populism can be related to a longer tradition of concern over the tyranny of the majority and the vulnerability of minorities in democratic regimes. His hope was for a form of civic leadership that would thwart populist leadership by promoting capacity-building in citizenship.This is a subtle form of elite rule requiring leaders to win community support and then lead community opinion by instructing citizens in their obligations of citizenship.33 The Australian system of parliamentary government is open to both the populist and prudential leadership options, and indeed to many variations in between. The Australian system of ‘responsible government’ leaves great latitude to heads of government to determine their own reach of responsibility. Australia is a good test case of Bryce’s hypothesis that leadership in democratic regimes tends towards populism, and that the best precautions against populist leadership are combinations of legal and moral devices. Legal devices include the involuntary restraints on executive power found in written constitutions. Moral devices include the less reliable but no less valuable voluntary restraints found in the character and political morality of leaders, displayed to considerable extent in each leaders’ distinctive political

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rhetoric. Bryce’s orientation reflects an elitism struggling against populism, but it is an early form of what later became known as democratic elitism, in Bryce’s case distinguished by his promotion of not only the text of democratic constitutionalism but also the spirit of democratic citizenship.34

The lattice of leadership Prudential leadership is not the preserve of any one leader in a democracy. Bryce is right to suggest that Australia can be grateful that its formal constitutional order disperses public power across the system of government: across the federal divisions between Commonwealth and State, across the parliamentary divisions between House of Representatives and Senate, across the divisions between elected representatives and voters, and across the three branches of government so that policymaking requires considerable give and take between the political executive, the parliament and the judiciary. At each level there are plenty of opportunities for grandstanding, power-ploys and indeed prudential leadership. The leadership expected of the national government is not confined to any one site of power or authority, and it would be democracy at its worst to defer to the claims of any one set of political office-holders to act as ‘the leaders’. My image of the lattice of leadership is another way of conveying the message found in many traditional doctrines of ‘ethics of office’, where expectations about the right conduct of public figures derive from the nature of the specific office in question. One advantage of this type of so-called institutional or role ethics is that it helps officials avoid unnecessary abstraction in ethical thinking by keeping their focus on concrete circumstances and the immediate responsibilities of role.35 Ethical responsibilities vary with role. While general obligations to act honestly might be common, specific forms of honest ethical conduct can vary according to the role or office in question.This traditional orientation to public ethics undercuts expectations about a ‘one size fits all’ model of ethical conduct, deferring instead to a wide range of clusters of ethical priorities varying with different types of public office. Theories of ethics of office have survived so long precisely because they match the living realities of the public realm, where what is considered appropriate public conduct for officials derives substantially from the nature of the offices being occupied: take the occupant into another public office and you probably change most of their official ethical obligations. One striking example is the

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role-relative ethics performed by leaders of the opposition and just as properly resisted by those performing the role of leader of a national government.When political leaders move between these two public offices, we are not surprised to see their public conduct change, consistent with the socially valuable interests being protected by each office. I call this construct of dispersed leadership the ‘lattice of leadership’ favourable to a healthy democratic system. A lattice is a fixture comprising intersecting vertical and horizontal planes, typically made of wood and often used as a screen supporting climbing plants. An alternative model of political leadership is a pyramid where a broad base supports a triangle of power, with the ‘one in charge’ at the apex of power at the top. Of course, the ideal model for a democracy might be a flat structure with no elevations of power, or perhaps a round structure rotating slowly so that everybody gets their turn at the top. My lattice model reflects the prominent value placed on checks and balances in the tradition of liberal constitutionalism. Political power is dispersed along the vertical and horizontal axes so that it does not concentrate in any one spot, yet the overall structure is strengthened by this diversified arrangement. Admittedly, I know of no political entity neatly modelled on this lattice structure. But the lattice model serves a useful purpose in bringing to mind a mutually supportive arrangement of diversified leadership, consistent with the constitutional principles we associate with separation of powers doctrines. Much of the leadership literature rests on a political preference for strong government and the institutional supremacy of the executive branch. My countervailing orientation is towards legislative supremacy, but even this commitment to accountable government is only incompletely democratic compared to views supporting the supremacy of the people themselves.The case for dispersed leadership begins with doubts about the adequacy of executive supremacy and can then be taken as far as democratic commitments might warrant.36 Democratic regimes vary greatly according to the degree of separation of legislative and executive power.The concentration of both powers in the hands of parliamentary executives flatters the leadership pretensions of heads of governments, just as formally separated powers invite chief executives to consider themselves singled out for greatness. Both types of democratic regime benefit from the checks and balances of dispersed leadership.

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In the Australian case, the constitutional system contains other locations of leadership that are no less important than that potentially available through the chief political executive. For example, chief ministers do what they do partly because of the scrutiny exercised by their opposite number in the leader of the opposition, which is a high public office that grows naturally out of the institutional logic of the parliamentary system. So too the Senate provides plenty of opportunities for leadership to exercise itself when responding to executive initiatives or when stealing the initiative itself.Then there is the High Court, where leadership is certainly not confined to the position of chief justice. And so on, across the system of constitutional government, including within the political parties which are vital public institutions that do so much to cultivate the leadership capacities of politicians.37 The Australian constitutional system of governance provides many useful checks and balances against the worst excesses of executive self-interest. The Australian political order as originally conceived a hundred years ago illustrates the preferred institutional path of 19th-century liberal constitutionalism. Liberal constitutional doctrine was in two minds about the place of political leadership.This ambivalence is reflected in the Australian situation. The silence about the office of prime minister gives rise to two alternative accounts of ruling. One account says that this constitutional silence reflects the framers’ commitment to the evolving norms of responsible party government, which they were careful not to obstruct with legalese capable of impeding the progressive development of new and more effective forms of party government. That is, the constitutional reticence about the role of political parties and of the prime minister as leader of the major party grouping reflects a growing confidence in the rights of the prime minister as leader of the political executive and effective, if unspecified, ruler under the new constitution. The alternative account is the one I favour. This holds that the Constitution is intended to protect the rule of law rather than the rights of any one claimant to the office of ruler-in-chief. The remarkable detail in the Constitution about the composition and powers of the parliament specifies the procedures to be followed in the legislative process, thereby highlighting the basic importance of the norms of the rule of law subsequently reinforced by the constitutional provisions detailing the judicial powers. This alternative account is consistent with one version of liberal

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doctrine which holds that good government is the progressive replacement of arbitrary practices of ruling by impartial processes associated with the rule of law. This can be seen as a doctrine of legislative supremacy and the former account of ruling can be seen as a doctrine of executive supremacy.When the two accounts are related in this way, one can also see that they are compatible as two parts of the parliamentary ensemble associated with the responsible government model: the executive version emphasises that the model is one of responsible party government and the legislative version emphasises that the model is one of responsible parliamentary government. Peaceful coexistence is indeed possible; and at the level of constitutional theory, the Australian Constitution has attracted adherents of both versions of the model, while at the level of political practice it has been flexible enough to allow each version to play its part in the evolution of the norms and practices of self-government.

Moderating the promise of prudence Prudential leadership might be a good thing but it is rare. From Aristotle’s account of this valuable but rare political quality we can at least begin to see what the standard for ethical leadership is. Building on this, we can learn to live with less than perfect leadership, including learning to resist the claims of those who pretend to prudence. I want now to tease out three principles for coping in the absence of prudential leadership.The first deals with ‘the constitution of leadership’ as the institutional setting for responsible leadership; the second with the cultivation of citizenship as a core task of leaders; and the third with the limits to leadership, so we can learn to live without leaders, when that eventuality arises. We should not measure the ethics of Australian political leadership against the Pericles standard. Australian political leadership can be tolerable despite the absence of our very own Pericles. Even Athens grew tired of Pericles, and my basic argument is that we should not strive so strenuously for ethical leadership that anything short of a Pericles disappoints us.The risk of adopting the Pericles standard is that we will welcome the first pretend-Pericles at our own political peril, as I try to show in the following chapter. These three principles flow from my reading of the Australian lattice of leadership, providing modest hope from the system of diversified leadership. Let us welcome prudential leadership when a leader properly equipped

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comes along, but not strain so hard that we fail to appreciate the modest but equally valuable lattice of leadership possibilities. Each principle helps to moderate unrealistic expectations that the ideal model of the prudential leader is at hand, if only we search hard enough. Moderation is a feature of prudence, but more than one democracy has weakened itself by immoderate expectations about leadership salvation. Uninspiring as it might sound, properly constituted constitutional systems can supply valuable leadership even in the absence of great and powerful leaders. It is in our own interest as democrats to bring into play the leadership potential of many political offices scattered across the governmental system – not to mention those positions outside government in civil society, often closer to the conscience of a community.

The constitution of leadership The first principle recognises the ‘constitution of leadership’, referring to the importance of the norms of the institutional setting in which Australian political leadership is practised. Leaders work within a leadership system and I contend that this system limits and qualifies the leadership capacities of even the most ‘prime’ of prime ministers.The ‘constitution of leadership’ limits the greatness that can be contributed by great prime ministers, but also protects the community against the weakness of the weakest prime ministers.This principle holds that Australian political leadership has to be explained in terms of the leadership framework found in the Constitution rather than simply in terms of the passing parade of political leaders Australia has enjoyed.What is this leadership framework? The term ‘leadership’ is not mentioned in the Constitution. But neither is the prime ministership (ministers yes, but not the prime minister or cabinet), and that is my point.What makes the office of prime ministership so fascinating is that its power rests on a mere convention or shared political understanding and not on any explicit constitutional provision.Yet from this convention or working assumption has grown the power and pre-eminence of our current system of prime ministerial, or as some would say, presidential government. This rise in centralised political power would not take the framers totally by surprise. Many of the most influential constitutional framers were themselves experienced heads of government before Federation and some went on to be heads of the national government in the early years of the Commonwealth. Just think of Barton, Deakin, Reid, and even the colour-

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ful Billy Hughes – not all of whom, I have to note, exercised regular leadership. But other framers went on to be heads of other parts of the system of national governance. Think in turn of leading High Court justices like Griffith, O’Connor, Isaacs, and of HB Higgins as head of the Conciliation and Arbitration court. Think also of the many framers who went on to serve with distinction as members and senators who are only now coming to our attention in such works of rediscovery as the recently published Biographical Dictionary of the Australian Senate.38 I mention this to illustrate the diversity of leadership roles built in to the Constitution. The intention of the framers was to reshape the institutions of responsible parliamentary government to counterbalance the inevitable power of the chief executive (the prime minister and cabinet). The framers countered the inevitable power of the political executive with the far from inevitable power of countervailing forces available in such institutions as: federalism, with its vertical division of powers; the horizontal separation of powers between the political branches and the judiciary; and the internal division of powers within the bicameral parliament. The system of governance provides for many leaders, but political leadership really comes about as the sum of the parts rather than the heroic work of any one part, party or party leader.This is what I mean by the ‘constitution of leadership’, which I suggest is a model for organisational leadership more generally.39 Prime ministers are certainly not captives of this leadership framework. They can and must work within it, but they can also contribute to its development. Each prime minister has built up the bureaucratic strength of the political executive. They have thereby contributed to the institutional development of the prime ministership. Sometimes this has simply augumented the power of the executive branch relative to the other constitutional branches; at other times, this development has reshaped the institutions of executive governance so that the Constitution as a whole has been strengthened. All political leaders surround themselves with the paraphernalia of power; what distinguishes leadership is that this power is institutionalised in publicly valued organisations. At their best, these institutions live on after their sponsoring prime minister and contribute to the capacity-building of national governance, either in their own right or by sparking corrective institutional responses from other parts of the system of governance.

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C u l t i v a t i n g c i t i ze n s h i p The second principle recognises the core ethical responsibility of political leadership in terms of the cultivation of an ethos or spirit of citizenship. The best leaders treat us as more than followers. In political terms, they help us take on the sovereignty appropriate to democratic citizens. This might sound like pious theory, but even Australian political history can confirm the importance of leaders in the shaping of citizenship. My reading of the Australian evidence suggests that prime ministers themselves understand that among the most responsible of their public duties is the development of a community sense of national citizenship.40 Citizenship is the status we share in common as equal members of a sovereign people. Citizenship is the shared civic orientation which defines our core political identity; citizenship is based on political values appropriate to national identity, such as legal equality, equal access to public services, and equal obligations to participate in the duties of franchise. Citizenship is ethical in character because it defines our civic ethos or shared way of life based on core rights and obligations. Leading prime ministers like Deakin, Menzies and Whitlam understand that they have a public duty to shape the civic outlook by clarifying the entitlements and duties that we owe one another in our role or office as citizens. Prime ministers, of course, claim much more for their charter of responsibilities, while describing their wider reach of polity responsibilities in terms of ‘nation-building’. But the aspect that is most closely aligned with their statecraft deals with the cultivation of citizenship: with clarifying the development of the rights and responsibilities of citizens. Leadership within limits The third principle recognises the limits to leadership. This principle is about the safeguards against unethical leadership when the default position recurs, that is, when the routines of politics get in the way of institutional leadership.This is the normal situation, where ‘norm’ refers to the conventional norms of political management, typically involving partisan antagonism and institutional conflict.These standard operating procedures do not depend on ethical leadership but nor do they necessarily destroy it. I contend that the political system does not presume that every prime minister will exercise leadership in their approach to public ethics. In other cases, their statecraft itself is of low quality; and in still other cases, their personal

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qualities are low. But the good news is that the system is designed to work tolerably well with the ethically commonplace as much as with ethical excellence. This third principle shows that leadership is not everything – many prime ministers rarely deviate from the lower routines of legal and economic management. Even the great political leaders are far from consistent, even far from ethically consistent, in their promotion of charters of civic conduct. The peaks of ethics get shrouded in the clouds of everyday politics, so that in many, perhaps most, instances, organised politics crowds out institutionalised leadership. Sad but true as this is, we should not despair. I contend that the institutionalised ‘norms of fair play’ found in the constitutional system (that is, its procedural checks and balances regulating public decision-making) will usually prevent too much damage from the recurrence of this default position. But it would be imprudent to expect too much of ethical leadership. The grain of political conduct runs along the line of least resistance to political self-interest.Again, prudence suggests that we learn to live with that, provided that our political leaders play their part in national affairs within their allotted constitutional setting, and that we keep that setting well maintained with adequate systems of checks and balances against unethical conduct. Even good people can get caught up in public office in such ways that leadership never really emerges, but not because of any personal ethical failing of leaders.There are many political leaders who are personally correct but far from admirable as public persons.The office or role is just too big for them. But let’s keep this lapse in perspective; the system can cope with lacklustre characters. This third principle balances my earlier hopefulness by moderating our expectation that all or even most political leaders can or will exercise genuine leadership.The same historical record can be mined for equally valuable material highlighting the persistent gap between leaders and leadership. Most prime ministers most of the time hold office as national political leaders but demonstrate little national leadership. Our constitutional systems, however, can contain useful public values (such as accountability and oversight) to keep alive the spirit of self-government during those times when political leaders lack personal commitment to public ethics. To some extent, institutions can get us through when admirable personal qualities are missing from our political elite.

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Conclusion The distinguished US political theorist JP Dobel provides a detailed examination of the core principles of public integrity, including an analysis of prudential judgment in criteria that ‘provide standards for leaders and for those who wish to advise, direct, or criticize the actions of leaders’.41 This chapter has tried something similar if less theoretically ambitious. The revival of prudence in the school of prudential leadership reminds us of the scarceness as well as the nobility of individual statesmanship, whether it be in the ancient form of a Pericles or the modern form of a Lincoln or Churchill or Roosevelt or Mandela. Leadership theorists lament the scarce supply of great exemplars of prudential leadership.42 My purpose has been different: to note the institutional opportunities for prudential leadership across the deliberative process to strengthen contemporary democracy. This chapter has sketched the profile of a standard of ethical political leadership relevant to a wide range of democratic power-holders. Applications will vary from office to office, as is only to be expected of a prudential standard. Reconsidering Aristotle’s treatment of Pericles, we get the picture that Athens made his leadership as much as his leadership made Athenian democracy the great example it remains today. But even democrats know that it takes singular leadership to bring into operation the diversity of deliberation favoured by democracies. Sure enough, Athens chose Pericles as its leader, but Pericles stands out as a democratic political leader precisely because he promoted a deliberative process involving the politically active participants in Athenian democracy.Athens gave Pericles the opportunity to reshape Athenian democracy by strengthening the processes of public deliberation. Pericles gave Athens the opportunity to deepen its democratic practices by taking greater responsibility for its own leadership. It was not simply by retaining Pericles that Athens rose to greater responsibility: it was by sharing the deliberative process with the leader of the day that Athens showed its real respect for the norms of self-government. The historical Pericles might not have deserved Aristotle’s praise as a model of practical wisdom. For instance, the historian Thucydides recorded Pericles’ famous funeral oration at the outset of the Peloponnesian war. Pericles praised Athens’ genius for shared political deliberation, but Thucydides portrays him as saying that Athens is rightly ‘called a democracy’, that is, publicly acknowledged as a democracy by those like Pericles

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who rule the democracy. Ever a realist,Thucydides comments that Athens ‘was nominally a democracy’ but under Pericles it became ‘government by the first citizen’.43 Bryce’s view might be that Australia is lucky not to have had its system of self-government handed down by a Pericles. The Australian system of dispersed political leadership might work better in the presence of a Pericles capable of orchestrating the scattered processes of public deliberation. But while we wait for the arrival of Pericles downunder, we can continue to learn from Bryce’s own prudential leadership about the disturbing prospect of populist demagogues, each capable of pretending to be a Pericles and each determined to challenge the constitutional norms of democracy in Australia. Time now to look more closely at what happens when power is divorced from the ethics of prudential leadership.

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Chapter 4

P O P U L I ST L E A D E R S H I P Democracy and Demagog y

The term ‘demagogy’ refers to the action or qualities of a demagogue, now mostly used to refer to a populist leader.This chapter contrasts the place of demagogy with that of democratic deliberation examined in chapter 3.The model of prudential leadership in chapter 3 highlighted the contribution of democratic leaders to political deliberation. By contrast, the model of populist leadership examined in this chapter shows up the hijack of public deliberation by demagogy.The contrast is not a simple one of democratic ethics against populist ethics, because democracy is compatible with many forms of political leadership, as Australia illustrates so well. Critics of populist leadership argue that it falls short of democratic ethics. Critics of the elitism associated with some forms of prudential leadership argue in turn that it deviates from democratic ethics. But as both Bryce and Jones urged (see chapter 2), the real challenge facing political ethics is not so much promoting democratic ethics as promoting ethical democracy. My argument in this chapter is that populism pretends to democratic ethics but fails the ‘ethical democracy’ test, precisely because it substitutes demagogy for deliberation. Populism is no idle prospect but a present danger. In common with many contemporary democracies, Australia is experiencing upsurges of conservative populism with increased competition among right-wing parties for support from the politically disaffected. These are the people who no longer trust the government as national leader but who still believe in or trust political leadership – of a certain sort. As the track-record of the Howard government shows, the ‘terms of trust’ can be reconstructed by rightist governments to accommodate disaffected voters. Governing political parties can appeal to such voters to ‘trust us’ even when those voters dis-

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trust government. Under such circumstances, how many governing parties could refuse to adjust some of the ‘terms of trust’, even if this means weakening some of the traditional protections of the public interest? After all, populism presents itself not as a partisan movement of vested interests but as the suppressed voice of what we might term disinvested people: ordinary people without vested interests, forgotten by governments captured by vested interests, and open to the promise of a kind of anti-politics. Pauline Hanson is a good example of a successful populist leader able to use the attractions of anti-politics to fight against the established political parties and against politics as usual. My fear is not so much that populism is inimical to decent democracy but that opposition parties on the Left will join in this ‘race to the Right’ and devise their own styles of what I call ‘left-over populism’.This is most pressing for the Labor Party now in opposition, given that Mark Latham’s momentum as opposition leader is frequently explained by reference to his own populist policymaking. If Latham fails, the call will be for a credible leader, perhaps another Hawke, imitating the Right’s track-record of leadership instability with Peacock, then Downer, then Hewson, all discarded before the rediscovery of the populist Howard, whose 2001 ‘Tampa tantrum’ electoral victory illustrates the growing power of populism.

Prudential or presidential? But decent democracy requires more than a dominating political personality: it requires longer-term investments to counter many democratic deficits, including the deficits associated with populist democracy.This is an ethical issue relating to leadership options. For some, the ideal option would be to come to a national political accord for leadership that discourages populism, while we reconsider the deeper causes of populist anxiety.This is most unlikely in a system of competitive adversarialism which tends to reward this ‘race to the Right’. As democrats, we should not presume that the root problem is the political values of the people. I contend that ‘populism’ is a leadership construct – something constructed by political leaders from the materials of populist protest. Politically ambitious leaders are always on the prowl in search of potential followers, and the tendency towards presidentialism in Australia and many other parliamentary democracies encourages political leaders to find popularity in populism. This cry of ‘presidentialism’ is the latest in the line of criticisms that can be traced all

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the way back to Thucydides, whose comments on Pericles’ nominal democracy we noted in the conclusion to chapter 3. My preferred leadership option is a system of diffused leadership, with harbours of refuge protecting multiple small sites as part of a network promoting prudential leadership. Effective democracy needs a framework of diffused political leadership drawing on institutional and not simply individual sources of leadership. My ‘lattice of leadership’ outlined in chapter 3 allows for multiple leadership possibilities. The problem with populism is that ambitious leaders redirect popular expectations into a pyramid shape, drawing on the legitimacy of popular choice and popular sovereignty to satisfy the leader’s quest for power and control. Although lattices are surprisingly strong structures, they can be reshaped, particularly by mobilising the strength of ‘people power’ associated with the rhetoric of popular sovereignty. Luckily democracy is not ‘owned’ by any one political party or any one party leader.Anxious social democrats in Australia should be cautious about presuming that the Australian Labor Party, for instance, has any monopoly of social-democratic values. It might well be that social democracy in Australia is best promoted by the parliamentary contribution of a variety of progressive political parties, including smaller parties in opposition capable of keeping professed social-democratic ministers open and honest in their use of government office. More radically, it might be that parliamentary leadership is only one of a number of forms of political leadership, and that political leadership is only one form of public leadership. Dispersed power does not necessarily mean disordered and diminished leadership; but it does mean diffused leadership, sharing different types of authority across institutions through a separation of powers across legislative, executive and judicial branches of government, as well as a federal division of powers between national and State governments – as highlighted by my lattice model. Typically, democratic theories pretend that leadership is located in ‘the people’. But practically, democratic governments reserve leadership roles for holders of elite offices in the political order.To be true to their principles, democratic regimes should let the people control who gets to hold public power as a member of the political elite. This process of popular control might take a direct form such as election or an indirect form through mechanisms of public accountability. But democratic leaders increasingly want a longer leash of responsibility, and they are prepared to accept greater

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personal accountability if this unleashes the responsibility they claim as their right as national leaders. For example, Prime Ministers Howard and Blair come from opposite sides of the partisan fence, yet they share this longing for pre-eminence. Their critics call it ‘presidentialism’, a form of institutional envy of the power and might of the US presidency that undermines traditional collective norms of parliamentary government.This envy would be more tolerable if it was based on admiration for the ethical principles of ‘prudential leadership’, and it would carry a sense of the potential for a more ethical politics if the head of government could claim to speak and act on behalf of the community as a whole, and not simply parliament or the governing party. The international recovery of the value of prudence for national political leadership comes from the United States, where the values of presidentialism have, in the hands of recent presidents, trumped the values of political prudence.1 There are populist presidents but there are few if any prudent populists; there might be canny populists, wily populists, even smart populists but, according to the perspective of prudential leadership, there can be little prospect of prudent populists. Prudence and populism are opposites. The claims about the ‘presidentialisation’ of British, Canadian or Australian politics means that heads of government (and opposition) in such parliamentary systems are increasingly adopting a presidential profile and acting not as the ‘first among equals’ expected of parliamentary norms of cabinet government, but as the pre-eminent representative of the people.The traditional test of parliamentary confidence is being replaced by tests of popular confidence.2 But these are not necessarily tests of confidence in the personality of party leaders: we can take some heart from recent international political science findings ‘that the personalities of leaders and candidates matter a lot less, and a lot less often, in elections than is usually supposed’.3 This result seems to suggest that democratic voters take issues of public policy more seriously than issues of personal appearance, and that political leadership is judged by voters more in terms of the character of leaders’ policy profiles than the images of character attributed to the leaders themselves. In this view, the secret to being ‘presidential’ is not to be a dominating public personality but to dominate debate over public policy. However reassuring this finding might be to believers in people power, it does not pretend to tell us anything about the integrity of prevailing forms of policy domination. It all

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depends on the integrity of the leaders and the policy processes they favour. The British experience is relevant here: replacing a Thatcher with a Blair helps change the social agenda of public policy, but of itself does little for the agenda of democracy. Heads of government come and go with changes in party support, within parties and across the electorate. A Thatcher can replace a Callaghan almost as easily as a Blair can replace a Thatcher, all the while concentrating greater power in the prime ministership, now labelled ‘the British presidency’ by its critics in recognition of the so-called ‘leadership stretch’ separating the prime minister from the rest.4 If the leaders of the major parties have their way,Australia will develop in the same presidential direction. Where does Australia stand in its record of democratic leadership and what models of political leadership are relevant when evaluating the Australian record? Current debates about the increasing incidence of ‘populism’ in Australian politics highlight concern over the democratic legitimacy of many leadership practices. Democratic theory holds that the people should control who rules.Yet democratic practice, in Australia and elsewhere, shows that political leaders exercise the initiative through their control of, or rule over, the people – including their often indirect but influential control over norms of social inclusion and exclusion. Judith Brett, for instance, warns that many of Howard’s opponents ‘have been misled by his own description of himself as a social conservative and so missed his takeover of the symbolic repertoire of Australia’s radical nationalist past to reconnect Australian Liberalism with ordinary Australian experience’.5 Leaders can pretend to be followers at the very time they are initiating quite fundamental changes in political structures and processes. Australia shares with the United Kingdom and the United States a cultural war over the leadership styles of serving heads of government. Socialdemocratic critics in all three nations have mobilised considerable support against the allegedly populist style of leadership shared by President Bush, Prime Minister Blair and Prime Minister Howard.While there is plenty of truth in these charges, there is also the danger that critics will simply pave the way for a left-wing version of the existing right-wing problem, which is populist leadership. A leftish replacement of Bush or Blair or Howard who brought a left-wing version of populist leadership would do nothing to improve the root problem of irresponsible national political leadership.

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Australian advocates of non-populist democracy need to break loose from the leadership fetish of government gurus (media commentators as much as political analysts and activists) and reappraise the multiple locations of leadership in social-democratic governance.The standard view of Australian progressives assumes that we can retain the conservative apparatus of prime ministerial power and simply replace the conservative agenda of leadership with a progressive one.This view reflects wider Australian confusions over the place of political leadership in democratic systems.6 This chapter is a challenge to leadership orthodoxies. Put in balder terms: in contrast to the usual tendency of leadership studies to look solely at the nut at the centre of the wheel, I look at the diffused capacity of the supporting spokes as well as the centralising capacity of the nut apparently holding things together. Building on my model of the ‘lattice of leadership’, I argue that the real challenge in overcoming populist leadership is not to replace the populist at the top but to reconfigure the democracy at the bottom. Diversified leadership is truer to the spirit of democracy and truer to the promise of prudential leadership which stands away from and opposed to populist leadership. Using examples from recent Australian political history, I argue against the view that a revitalised democracy can be simply secured by an electoral victory replacing a conservative with a social-democratic governing party.

Leaders: popular or populist? Cynics of the study of leadership dismiss it as humbug about heroes. True enough, the academic study of political leadership is biased towards models of heroic individuals.Traditionally, the leadership heroes were those who made the rest of us what we are: compliant followers of those who know what’s best for us. As followers, we are only as strong as the leader, whose autocratic will imprints itself on the group. Now, with changing fashions, the leadership heroes are those who bring out the leadership in the rest of us, facilitating our social and political autonomy. In this revisionist view, the leader is only as strong as the group of followers, who set the outer limits to the leader’s power.7 Two aspects are noteworthy in our context. First, both traditional and revisionist approaches focus on heroic individuals – those rare figures who claim that they can make things happen. And second, the more democratic version of leadership leans towards populism, in so far as leaders are

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expected to reflect and reinforce the values of the followers. This lean towards populism poses great challenges for contemporary democracy. It is some comfort to know that there is plenty of scope for constructive democratic approaches to political leadership between autocratic and populist models. But there is less comfort in knowing that democratic populism is proving an electoral winner for party leaders. My preferred path of dispersed leadership is located somewhere between these two extremes of autocratic and populist models.Trouble is, democratic populism is easier to establish and, as the critics of Howard’s legacy allege, harder to dismantle. A further worry is that neither approach, autocratic or populist, locates leadership in much of an institutional setting. Instead, both approaches define leaders as institution-builders. This is a good working definition of political leaders but it rubs up against the rationale for a constitutional framework of institutional checks and balances to restrain political leaders. Liberal-democratic norms see institutions as constraining or at best shaping the activity of leaders, which is unduly acknowledged when we confine our attention to the exceptional story of heroic individuals. For instance, traditional models of the great statesman celebrate those outstanding figures who embody the virtues of the political community and can act and, most notably, speak on behalf of the community, actively directing its development. This is the model of the ‘great helmsman’ who navigates and steers the ship of state on its political course. In this top-down model, leaders work their magic through their power to make followers, exemplified above all by their power to persuade, both on the public stage in the stories they tell and behind the scenes in the messages they deliver.8 In rather different ways, many contemporary models of the leader as servant and facilitator continue to highlight individual pre-eminence, even if they appear more sympathetic to democracy than to autocracy. Under this alternative to autocracy, the person at the top is more of a coach than a captain, drawing out the varied strengths of different players and moulding them into an organised whole. In this alternative model, the leader facilitates rather than forms the followers. In contrast to the great helmsman model based on the power of persuasion to cultivate a subordinate army of followers, the coaching model is less masterful and manipulative, based instead on the leader’s ability to draw out the latent potential of subordinates for shared responsibility for management of collective endeavours.9 As an ideal, this facilitative model of democratic leadership stands

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between autocracy and populism. But in practice, elements of both extremes can be combined, as when political demagogues enlist populism in their partisan campaign for office. Populist leaders win the attention of the people by addressing popular fears and insecurities. Populists speak in the name of the inclusive people while targeting a feared minority fit for exclusion. Social democrats have to face the fact that contemporary democracies lend themselves to varieties of democratic populism. The temptation is to accept this tendency and to ask ‘third way’ technicians to reinvent democratic populism along social-democratic lines. Blair and Clinton went some considerable distance down this path, perhaps inspired to a degree by Hawke and Keating. But times have changed and we have to assess the impact of Howard, who has pushed leadership much further in the populist direction while winding back much of the inherited social democracy. Simply replacing Howard and his party with a Labor leader and her party will only expose that new Labor leader to the powers of populism without the saving responsibilities of social democracy. One additional distinguishing term should now be introduced into this analysis, and this is the distinction between a leader and a demagogue previewed in the last chapter. Again, the debate over John Howard provides us with plenty of applications of this distinction, with many of the prime minister’s critics claiming that he has acted less like a national political leader and more like a demagogue. Demagogues flatter their constituency, singing their praises while demonising their opponents. In contrast to the organising leader of the whole, demagogues are models of disorganisation or of ‘divide and rule’ political management.As this term is typically used, a demagogue is the opposite of the idealised leader: where a national political leader ideally strives for social harmony based on shared appreciation of social justice, a demagogue struggles for social strife, working to deepen social divisions in order to mobilise support among those who are the target of the demagogue’s political flattery. As described by political analyst Giovanni Sartori, the demagogue is a ‘political cheat’ who ‘tries to fool all the people all the time’.10 As mentioned in chapter 3, the term ‘demagogue’ was originally the Greek term for popular leader and has no necessary connection with populism. The original idea was that democracy was popular government, which meant in practice that the people would themselves select those ‘demagogues’ in whose hands effective political power would rest.11 Yet as

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usually deployed, the three related terms ‘demagogue’ (the leadership pretender), ‘demagoguery’ (the pretender’s craft) and ‘demagogy’ (the rule of the demagogue) have come to refer to false leaders and their deceptive strategy, in the sense of wily politicians who court popular opinion not through any conviction about the justice of populist protest but simply to enlist popular support for their own political standing. In this usage, demagoguery is the art practised by ambitious politicians who have few or no claims to national political leadership. Factionalism is the preferred province of the demagogue. Leaders they might well be, even with a considerable popular following; but their demagoguery stands them in a class apart from and well below those who exercise national political leadership.Their factionalism can take on the appearance of populism, with a rhetoric of populist rights and wrongs lending credibility to their leadership pretensions.

Horne on Howard The 2001 Australian general election turned in large part on competing estimates of the leadership capacity of Prime Minister Howard and Opposition Leader Beazley. Howard wanted it to be just such a leadership contest. Watching the partisan scramble up the leadership ladder, voters somehow made up their own minds about the relative merits of the two leaders, possibly even viewing both as falling short of genuine leadership. But what standards can we use to make judgments about political leadership? Is it asking too much of ‘the led’ to make hard choices when electing potential leaders? And to what extent are leadership standards applicable to non-political forms of institutional leadership, such as appointed chief executives of government agencies and public service departments? Political leadership is notoriously difficult to analyse in any systematic fashion and we should welcome fresh attempts to lay out leadership in an orderly manner. Relevant contributions to the literature on leadership are harder to find than one might think from the proliferation of leadership workshops, learning-to-lead models, international lecturers on national leadership, galloping leadership gurus and the like. This situation makes even more remarkable the publication of Donald Horne’s Looking for Leadership just a few months before the 2001 national election.12 Donald Horne became internationally famous in the 1960s as the author of The Lucky Country, a book widely misunderstood as a celebration of Australia’s knack of getting by without too much leadership from government. Horne

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is a gifted writer, a former editor of The Bulletin, author of twenty-six books, and with The Lucky Country title he was being ironic, trying to draw attention to the public folly of relying on luck for national survival. In retrospect, one senses that he was trying to replace our blind faith in luck with an informed interest in leadership. What was implicit in that early book is now made very explicit, in the form of an extensive evaluation of the promise and performance of John Howard’s leadership role as prime minister, drawing on the record of his two terms between 1996 and 2001. Horne suggests that Looking for Leadership is something of a companion piece to the earlier classic. He even quotes a passage on political leadership in The Lucky Country which argues that the public rhetoric of political leaders can be much more powerful a force for social action than law or policy.The task of democratic leadership is to help the people by showing them that they ‘are capable of creating better than they know’. Horne’s working model is President Roosevelt, whose vibrant public talk did so much to get the United States out of the Great Depression. As Horne puts it: ‘He didn’t do it only by having workable policies. He did it, above all, by making speeches.’13 This is not just effective political management but very persuasive or at least convincing public leadership. Political leadership in democratic regimes is measured by the ability of national leaders to speak on behalf of their nations, to articulate the best interests of their community. There are many leadership positions, more than enough leaders, but few examples of genuine political leadership. Leadership in politics is an exercise in opinion formation: within parties, across parliament, throughout the nation. Most leaders fail to exercise leadership: they default back to the rawer political instincts of ‘divide and rule’, even within their own parties, frequently across parliament and most divisively of all, on the national stage.What they want is market share; what they do is product differentiation; what we get is empty adversarialism. Vested interests seem to trump the public interest. But be warned: there is a danger that calls for leadership invite populist pretenders who claim to protect and secure the people against vested interests. Horne has trouble identifying Australian examples of political leadership and part of his intention here is to reflect on what is missing, not just in the Howard prime ministership but in the Howard era generally. The good examples are figures like former prime ministers Fraser (1975–83) and Hawke (1983–91), who were capable of normalising the process of

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political change.Another one is Peter Costello as an example of a politician capable of the public rhetoric appropriate to political leadership, as when talking down fears of globalisation or fears of the proposed Australian republic. But they are the exceptions.The bad examples include Pauline Hanson, who has clearly been a leader of sorts. Here Horne moves on to the bigger issue relating to the responsibility shared by the leaders of the major parties for allowing the arrival of Hanson the individual to turn into Hansonism the movement. Howard’s leadership capacity is evaluated as much by his determined silence over the arrival of Hanson as by his readiness to talk up tax reform. For Horne, Hansonism is the standout marker of Australia’s lapsed leadership. The problem is not simply Howard’s. Hansonism is ‘the result of political incompetence – of politicians not tempering the pure faith here and there with a few strategic sweeteners … of politicians not having the heart or the brains to speak honestly to citizens about some of the matters that most affected their lives and their perceptions’.14 Former Labor leader Kim Beazley comes off not that much better than Howard. Horne’s explanation is that Labor went into retreat after the defeat of Keating, whose larger-than-life hot pursuit of leadership eventually landed the party in opposition. In many ways, Beazley suited the Howard era: he had been the ideal match for Howard precisely because he has traded on decency, trying to model the ordinary virtues of Australian agreeableness that Howard promotes and less frequently personifies, as Horne sees it. Beazley comes across as ‘Snugglepot with brains’,15 the nice guy who had learned to wait for his opportunity, in contrast to one of the first lessons on leadership, which is that one has to make one’s own opportunities. By what political standard does Horne measure Howard? The earlier book The Lucky Country contained a social critique of Australian public life in the 1950s, with Robert Menzies as the symbol of Australia’s goodhumoured conservative fate of striving for little in the way of national excellence. In this latest book, Menzies emerges as a feasible, if not final, benchmark for measuring John Howard as prime minister. And Howard fails the test, earning low marks despite his earnest devotion to the Menzies tradition. The problem is that Howard lacks Menzies’ political skill, which tolerated change while talking up tradition, a little like Malcolm Fraser later, who ushered in such socially significant changes as multiculturalism without drawing too much public attention to it. Howard reverses this,

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talking up change while tolerating tradition, particularly traditional obstacles to social inclusion such as ‘mainstream’ prejudice against what is seen as undeserving assistance to minority groups. Horne is hard on Howard. Many readers will take his early descriptions as signs of prejudice. For instance, it only takes two pages to discover Horne’s view that Howard is ‘a political freak’, an ‘accidental phenomenon’, even ‘a disgrace’ to the Liberal Party. But Horne is not blind to John Howard’s political capacity. He openly praises as ‘statesmanlike’ Howard’s management of gun control, but he laments that over time Howard has become the captive of his dated dream of social and cultural assimilation. Howard’s deeper fault is his white-armband view of race and political identity, symbolised by his veneration of the Dreamtime of the 1950s, exactly the decade ridiculed by Horne in The Lucky Country. This begins to sound like Paul Keating taking the mickey out of his successor. Therefore it is important to note Horne’s incisive and deft demolition of Keating’s claims to political grandeur:‘it was Australia’s misfortune that he gave the painting of big pictures a bad name.’And further:‘The trouble was that his big picture wasn’t one big grand vision, it was a small gallery of significant but disconnected snapshots, presented with the enthusiasms of a discoverer.’16 Horne is dismissive of the record of Labor governments in the wider public management of economic change. Labor might have been smarter in appreciating earlier the need for change, but they have been no cleverer than the coalition in managing the public response to unforeseen change. They have been no better than their conservative opponents in carrying the community with them in the pursuit of relentless economic reform:‘no political leader has ever seemed to explain clearly why things are changing.’ Horne’s aim is to use the Howard experience to reveal and highlight ‘where some of the faultlines in Australian democracy lie’. His strategy is to present a series of contrasting stories highlighting Australia now and when he was young.This conveys a clear picture of the monocultural world that we have lost, drawn from Horne’s own family history. It also conveys a reassuring picture of the multicultural world we have gained, which might also be lost in the absence of political leadership capable of promoting a sense of shared civic competence. The book contains a series of concluding Exhibits documenting the core values Horne sees as now battling for this

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civic creed. This final sweep of contending civic values drives home Australia’s lack of conviction about what political principles it stands for and its uncertainty about what it wants its political leaders to represent.

G e t t i n g t h e m e a s u re : H a n c o c k ’s h e ro e s Horne’s approach is reminiscent of that of WK Hancock, the source of many contemporary complaints about Australia’s leaderless politics. Hancock’s Australia is an enduring classic of Australian studies written by the founding director of the ANU’s research school of social sciences.17 The relationship between Hancock’s orientation and that evident here is quite direct. Hancock wrote towards the close of the first third of the century of Federation and Deakin is his chosen example of the representative Australian political leader – representative of Australian public life at its best rather than at its most typical. Noteworthy is Hancock’s debt to James Bryce’s various investigations of democracy in Australia, which stand out as exemplars of the application of comparative political analysis to the Australian scene.18 Hancock observes that Bryce appreciated that Australian public life is generally dominated by material interests. One effect of this domination is the relative richness of Australia as an economy. Another is its relative poverty as a polity, and one indicator of this poverty is the mediocre quality of political leadership – or to put it more positively, the exceptional character of Deakin as an Australian type. Deakin represents the public policy achievements and ‘all the positive policies of Australian nationalism’.The name for this policy orientation is the ‘new protectionism’ that came with its own distinctive ethic of providing Australian citizens with what is ‘fair and reasonable’, which Hancock identifies as ‘the distinctive ethics of Australian democracy’.19 A measure of Hancock’s appreciation of Deakin’s leadership quality is conveyed in his acknowledgment of Deakin’s kinship with nationalist poets. For instance, Hancock reckons that Deakin shares with poet Bernard O’Dowd the distinction of being ‘the most Australian voice’ in the years of his involvement in Commonwealth politics. Deakin, no less than O’Dowd, shaped the ‘Australian creed’ of the ‘independent Australian Britons’.When thinking of Deakin’s interest in nation-building, note also that Hancock said of O’Dowd that he understood that the function of art is to ‘turn a mob into a people’.20

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And what of political leadership more generally as portrayed in Hancock’s Australia? One of the distinctive aspects of Hancock’s historical account of Australia is the remarkable absence of the standard fare of great heroes of the frontier.21 There are two fascinating comments, meant I think to be compared, one in the context of the Labor Party and the other in the context of ‘the parties of resistance’, that is, the conservative parties. The importance of political parties for Australian public life is emphasised by Hancock: Australia is distinctive because ‘the political parties have almost a monopoly in the manufacture of public opinion’. Hence those who lead the major political parties exercise considerable influence over community sentiment. This is related to Hancock’s fear that ‘Australian idealism’ has placed too much faith in political action, which itself is dominated by a pragmatic realism rather than any lofty idealism.22 The first comment is that the Labor Party is a marvellously disciplined machine for managing politics but that this efficiency comes at a price: the cultivation of organisation produces ‘orthodoxy at the expense of leadership’ – or to put it in other words,‘the very efficiency of the machine tends to kill enthusiasm’.23 Within the Labor Party, Hancock sees warfare among ‘commonplace cliques competing with each other for the privilege of manipulating the machine’. Hancock’s prediction was that ‘this most characteristic movement of Australian democracy’ might well produce a system of government which is, strictly speaking, ‘unpopular’. Hancock’s comments on the leadership defects of the conservative political parties are just as harsh. His target is the conservative parties, then led by the Nationalist Party, which he saw as little more than a series of ‘ever-changing pacts of covetousness’. This ‘federation of divergent and sometimes conflicting interests’ is singled out because it ‘does not favour resolute and decided leadership’.Within conservative governments, leadership ‘tends to dwindle into management, into the astute adjustment of differences’, tending to favour those who hesitate and hang back awaiting their price before coming forward, just ahead of competing sections with equally sectional views.24 The figure of RG Menzies hovers at the edges of Hancock’s Australia. Menzies came to fame as the advocate in the Engineers case of 1920, which features as the centrepiece of Hancock’s analysis of the shifting balance of the Constitution, from a states-rights position to Commonwealth ascendancy.25 Hancock very astutely assesses the revolution in constitutional doc-

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trine associated with the Engineers case. He notes particularly the shift from a federalist jurisprudence to a more nationalist or unified jurisprudence, effectively conferring greater power and responsibility on the national parliament and government, safeguarded by ‘political expediency and public opinion’ rather than judicial protection. Hancock’s high hopes for State government experimentation is reflected in his belief that State or ‘provincial’ sentiment is the natural home of Australian social democracy: ‘State government is the instrument with which Australian democracy has fashioned its experimental socialism.’The primary role of the national government as originally understood was to ‘guarantee the isolation’ (an early justification of border protection) required for State experiments in social justice, through such policies as ‘immigration restriction’ and ‘a second ringfence of fiscal protection’.26 Horne’s more recent account helps explain what went wrong with Hancock’s account, which was overtaken by history. Australian political development has been more responsive to political leadership than Hancock might have expected. But if many of the policy details have changed permanently, the link between leaders and social protection has not. Following Bryce, Hancock sensed that the Australian political order revolved around various forms of protectionism, with leaders being judged according to their contribution to Australian protectionism.While it is true that eminent Australian journalist Paul Kelly has successfully demonstrated the late 20th-century dismantling of ‘the Australian settlement’ as originally devised by Prime Minister Deakin, it is also true that Deakin’s conservative successors in the Howard government have rediscovered the political value of a new protectionism – notably through a reworking of the American Alliance as a military and economic fence against international threats.27 Is this an example of leaders protecting the people from real fears or of leaders playing on the fears of the people to protect their own partisan interests? Trying to answer this question takes us to the heart of the debate over populist leadership.

Popularity and populism In examining the role of political leadership in the Australian story of inclusion and exclusion, we can learn more from the debate over Prime Minister Howard’s performance as national political leader. The 2001 general election was very much about leadership, with the prime minister apparently

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convincing voters of Labor’s lack of credibility on the leadership front. Labor’s retort is that its high-principled leadership was sunk by the government’s low-minded populism, which crowded out the space for national political leadership. But of course, what his critics see as base populism, Howard calls rare courage: speaking up and acting in defence of national sovereignty, clearly identifying the threats posed by national enemies and the assistance offered by national friends.The enemies are many: the international asylum-seekers and other ‘illegals’, including international terrorists, as their fellow-travellers.The friends are few: those allied nations fighting international terrorism and people-smuggling and restrictive trade practices. Opponents argue that Howard has used his power as prime minister to divide and rule along classic populist lines. In their view, Howard illustrates the Australian potential for populism, particularly in the way that marginal and vulnerable groups have been excluded through campaigns of fear carefully targeted at the ‘battlers’ and the neglected ‘mainstream’ of the Australian electorate. Supporters reply that Howard’s ‘chattering-class’ critics are aggrieved simply because they themselves are now excluded and marginal, having fallen from their powerful perch won during the time of the former Hawke and Keating Labor governments.According to Howard’s defenders, the prime minister’s strategy is not one of populism but nationalism, or more particularly, national sovereignty. This strategy is designed externally to bolster border protection and national security at a time of unprecedented international turmoil, and intended internally to promote social security and solidarity to repair the broken social fabric resulting from more than a decade of Labor experiments in social policy. Tempting as it is to take sides, my aim here is to change the terms of the debate. My focus is on institutional rather than individual issues. The debate over Howard’s leadership is a fascinating example of the Australian tendency to reduce politics to personality.We tend to praise those governments led by inspiring personalities who capture the Australian imagination (from the Right with Menzies to the Left with Keating) and to damn those governments and parties led by characters who fail to inspire us (for example Prime Minister McMahon and any number of State premiers).This preoccupation with political personality is part of a larger Australian story, evident also in the preoccupation with business and sporting personalities. At one level, it reflects a commendable public interest in the personal charac-

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ter of those who hold and exercise power in Australian society. But at another level, this preoccupation with personality distorts our approach to governance, at the corporate and possibly the sporting as well as the political level.The love-hate relationship Australians have with leading figures is suggested by the currency of the ‘tall poppy’ syndrome: we tolerate, even encourage our leading figures so long as they do not get too big for their boots, at which point we cut them down to size. Think of this as an Australian form of ostracism, part of that political tradition we can trace back to Aristotle in which suspicious political communities move to expel those large figures capable of dominating and distorting political life.28 Missing from many conventional Australian approaches to political leadership is any sustained attention to the institutional framework for the political management of national leaders. Not all forms of national political leadership are alike and not all forms of populism are identical. The Australian debate over Howard’s populist leadership is limited by the neglect of the institutional setting of Australian political leadership. As a result, we exaggerate the individual power of ‘bad’ prime ministers (‘demagogues exciting populism’) while also exaggerating the expectations raised of alternative ‘good’ prime ministers (‘statesmen cultivating citizenship’). Further, we underestimate the capacity of the constitutional system to puncture populism through its dispersal of political leadership across many competing institutions of national governance: the division of powers under federalism; the separation of powers under constitutionalism; the checks and balances of bicameralism; and so on. The Australian constitutional setting has institutional checks and balances with diffused powers capable of defusing much of the mischief of democratic populism. Social democrats can sense the importance of this system when it is attacked, for instance by Mr Ruddock when immigration minister, for providing ‘illegal immigrants’ with too much legal leverage when appealing ‘hard decisions’ taken by government to reject settlement claims. Administrative review might complicate ministerial decision-making but it might also strengthen leadership in the long term by widening the scope and deepening the legitimacy of public decision-making. Neglect of the Australian setting of dispersed leadership downplays expectations of alternative political leadership available from these other institutions, thereby rendering us unduly dependent on the sole leadership of prime ministers. Consider three examples of our yearning for leadership

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which border on hero-worship.Typical of the lament for ‘leadership lost’ is the view of media personality Steve Vizard, who reports that he is searching for models of political courage, for leaders prepared to take charge under the motto ‘My duty as a leader is to lead’. Instead,Vizard can only find reactive figures who look backwards rather than forwards: ‘looking around the whole time to see whether everyone is still with me. Whether I am dead in the centre of the crowd.’ In this view, the ideal leader is the one who can get ahead of and not simply reflect public opinion.This position is also well argued by former Liberal now Australian Democrat Greg Barns: ‘the role of the leader is to set public opinion and to lead. It is not to pander. I think Howard does pander.’29 A third and most fascinating example comes from Australian author David Malouf, in a complaint about the collapse of Australian political leadership published just before the 2001 election.30 He asks: ‘Do our current leaders ever present us, and especially the young among us, with any inspiriting view of Australia as a shared enterprise we all have a large and enlarging part in, that makes demands on our energy, our idealism, our will, our goodwill, but also offers us a space in which our lives might be significant, even heroic?’ Malouf answers no, and regrets the absence of energetic leadership. But I contend that this yearning for inspiring political leaders is not altogether healthy for democracy in Australia, and that Australian political analysts have done the community a disservice by ignoring the rich diversity of leadership possibilities planted in places other than the prime ministership. Indeed, Malouf himself reflects the capacity of individuals in civil society to play a leadership role through art and public commentary. In Malouf ’s case, the contribution of his art to public leadership is substantial, easily outpacing that from any number of outspoken (and outclassed) political figures. Malouf at his public best illustrates the important place of moral authority, divorced from any political or public office, in the lattice of leadership.

Populism and prudential leadership Defenders of John Howard’s claim to national political leadership have plenty of case material at their disposal. Much to his critics’ dismay, Howard as prime minister has stamped his authority on any number of difficult policy initiatives, beginning with the 1996 gun control measures in the wake of the Port Arthur massacre, which even his severe critic Donald Horne

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describes as ‘statesmanlike’.31 Further evidence of this initiative and impact is Howard’s remarkable 1998 electoral victory with the burdensome promise of a goods and services tax, and then the 1999 passage of legislation implementing the ambitious tax reform package. And then the war against Iraq, when half the community registered its opposition, and the remarkable electoral victory in 2004. These examples are certainly not proof of populism, in the classic sense of pandering to popular prejudices. Populist leaders use the false friendship of flattery to anchor their support deep in popular prejudice. To be sure, each of the above initiatives faced considerable resistance from vested interests and each was promoted by Howard as protecting popular interests. But none fits the mould of classic populism, in part because all indicate a measure of political and policy courage by Howard’s government. Populist leaders are more servile than courageous. Howard’s government might be populist in parts but there is clearly more to Howard than populism and more to his remarkable popularity than populist leadership.32 One element of leadership is the ability to get one’s way: gun control won over the States; the election policy of a new GST won over voters; and the tax reform package even won over the minor parties in the Senate.The Howard government’s record of policy achievements reflects well on the prime minister’s capacity to see things through to completion. There are many other quite far-reaching victories too: reform of social security to bring in a ‘mutual obligation’ regime; changes to public sector employment to bring in greater ministerial control over the federal public service; and changes to workplace relations to minimise the power of the Industrial Relations Commission. And despite a spate of ministerial resignations, Howard’s prime ministership has seen very few internal party disturbances or challenges to his control of the governing party. It is not for nothing that Howard went to the 2001 election on the very platform of leadership, daring the opposition to demonstrate a superior capacity for securing ‘border protection’ as test of national political leadership.33 But when parading and justifying this style of leadership, Howard begins to reveal his populist cards. Howard’s populist leadership is seen as much in what he says as in what his government does. His political mastery is seen not simply in his legislative but more particularly in his linguistic achievements. Even critics like David Malouf have conceded that Howard ‘has won the battle of style, of language, of what can be talked about and how’.34

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Howard’s critics zero in on the alleged political and social cost of Howard’s very successes. To many critics, Howard is the standout example of the systemic ‘failure of political leadership’ to speak out against Hansonite populism.35 Michelle Grattan has argued that Howard’s slow response to Hanson in 1996–97 saw him lose much of his initial ‘moral authority’ and even threatened the collapse of his ‘political integrity’.36 Critics concede Howard’s political savvy but deny him his claim to national leadership, arguing that his government has deliberately implemented a campaign of divide and rule, pitting different parts of the nation against one another with the aim of rallying ‘the mainstream’ against ‘the marginals’. Where his defenders cite the policy winners, Howard’s critics identify the policy losers, who tend to be those with reduced rights to government assistance. It is common for critics to trace Howard’s policy preoccupations back to his term as opposition leader to the Hawke government in the mid-1980s when the conservative focus on ‘social cohesion’ and the costs of non-traditional immigration took its modern shape. Howard’s critics describe the 2001 Tampa election campaign in such terms as a ‘divisive, racially suspect, fear-based campaign against desperate refugees’.37 Howard seized on the changing international situation and sold himself as the natural leader Australian needed in times of international peril, thereby producing a reversal of political fortunes that is ‘unprecedented in Australia’: a swing that might ‘barely seem credible’ but accurately reflects Howard’s rare skill as a political strategist, effecting the greatest swing to an incumbent government since Menzies’ retirement in 1966. Howard ended the campaign with ‘an approval rating of more than 60%, unprecedented during an electoral contest’.38 Proof of Howard’s ability as a leader is his capacity to reinforce public trust in his team; in the words of Graeme Samuel, the Howard approach rests on this conviction:‘I think this is right, but I am going to persuade the community gently and carefully that it is right so that they can believe it.’39 Not all Liberals have been so easily impressed. John Howard’s predecessor as Liberal leader, John Hewson, claimed during the 2001 election that Howard ‘successfully manipulated prejudice to his personal political advantage’.40 So too former Liberal adviser Greg Barns:‘This populist right-wing strategy seems to be working. Pauline Hanson is now reduced to a sideline role of “I told you so”.’41 Howard is now internationally acknowledged as the ‘leader of leaders’ of the parties of the Right. He has seen off the domes-

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tic challenge posed by Hanson and is now looking further afield for new challenges, such as the international war on terror. Retaining our focus on the place of leadership in social democracy, we need now to turn our attention to the place of populism in democratic politics, before returning to domestic Australian politics to examine emerging signs of life on the institutional leadership front.

Pathologies of populism My review of the debate over Howard’s leadership serves a larger purpose, which is to show that prime ministerial leadership and populism are not separate and distinct positions on a political spectrum but parts of the same position. It is a mistake to think that leadership and populism are opposites, the former being an initiative of those holding top office and the latter an initiative of those in protest at the bottom of the pecking order. Populism is not so much the untutored voice of popular protest as a political strategy devised by political leaders to win or retain popular support. Former British Tory minister George Walden, for instance, distinguishes between popular and populist leadership. Popular leadership derives from the people’s free support for a sympathetic leadership figure, whereas populism ‘is something inflicted on them from above, with the aim of exploiting base or banal instincts for profit or position’: populism is ‘something that is done not by but to the people’.42 Canada with its regional tensions is perhaps a better example than the United Kingdom. There are indeed untutored voices of popular protest, angry and resentful about leadership failures. Call this populist protest, often brought forward by non-traditional political figures. But it is political leaders who, as it were, put the ‘ism’ into populism and transformed the bottom-up voice of populist protest into a top-down strategy of political management.43 In the current Australian situation, prime ministers are in the most elevated and visible position of national political leadership and populism is one of a large number of possibilities on their list of strategic options. Populism is one path along which a national political leaders can direct their attention. Social democracy can be subordinated to populist leadership as easily as more conservative forms of democracy. Social democrats must learn to resist the temptation to flatter progressive leaders who think they are capable of using populist leadership strategies to win back the people from populism. Just as populism is the false friend of

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democracy because it flatters popular prejudice, so too populist leadership is the false friend of leadership because it flatters servility in offices of national responsibility. How seriously Australian politics is threatened by populist leadership depends in part on how we define ‘leadership’ and ‘populism’. At its simplest, ‘populism’ refers to a form of democracy where ‘the people’ protect themselves against elite interests which threaten to capture or dominate government. As defined by political theorist Margaret Canovan, populism is ‘an appeal to “the people” against both the established structure of power and the dominant ideas and values of the society’.44 It is a form of popular government which arises in protest against identified non-popular interests, such as business in general, or the banks specifically, or rich and powerful foreign interests or even poor and powerless refugees, should their interests be taken up by political elites and ‘crowd out’ the interests of the mainstream. In the categories of US sociologist Edward Shils, populism can lean to the Left (‘progressive populism’) or the Right (‘loyalist populism’).45 In either version, the agenda of populism includes fear of conspiracies among holders of public and private power, suspicion of collusion among ruling authorities, resentment of the privilege of established classes, and contempt for the autonomy of many governance institutions, including representative assemblies and elected politicians. If the secrecy of ruling elites is the problem, then much of the populist solution is directed to greater public transparency. But just as importantly, populism can be seen as an example of a type of political leadership, typically seized upon by new politicians seeking a constituency, such as Pauline Hanson, or by worried existing politicians, such as the Howard government in the wake of Hanson’s dramatic 1996 electoral success. The populist rejection of the secret deal-making of conventional politics encourages this turn to what Canovan calls the ‘personalized leadership’ of a protector.46 Common to both is the support for populist suspicion of politicians voiced by elected politicians desperate to differentiate themselves from conventional political careerists. An important feature of populist leadership is that most leaders who deploy it, deny it. This is because of the general reputation of populism as a deviant form of democracy: that is, as a form of democracy which deviates from the standards norms of democratic or popular government. ‘Leadership’ refers to one of these fundamental democratic norms. At its most general, leadership refers to the organisational task of team-building,

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with leaders’ skills put to the test by their ability to elicit organisational cohesion and to motivate and sustain collective effort of the organisation. Where it arises as a protest movement, populism requires its leaders, as in the case of Pauline Hanson.47 Australian examples usually come from the leadership field of State politics. Hanson flourished in Queensland but never really made it as a national political leader.And the ‘Joh for Canberra’ campaign never really took off in part because Premier Joh was not much of a leader in the absence of his State followers, whose support he had constructed so carefully over so many years at the top of a mindful government. And Howard as prime minister is far less inflammatory in his public denunciation of the people’s enemies than he was in opposition in the 1980s.48

Demonstrating dispersed leadership Examples speak louder than theory. One antidote to the leadership fetish threatening Australian democracy is provided by the many examples of dispersed leadership practised by politicians whose role is often marginalised by those preoccupied by the drama of high office.The Australian constitutional framework disperses political leadership across many points in the executive and legislative branches – and even across the judicial branch if one is prepared to accept that ‘judicial power’ involves the exercise of political judgment and hence its fair share of political leadership. Prime ministerial power is at the centre of the powers brought into play by Australian political leadership, but it is not by any stretch of constitutional imagination the only or even the most important leadership power.49 In an extended examination, I could illustrate this point with examples showing the contribution to national political leadership from many other political offices in the executive (for example other cabinet ministers, indeed cabinet itself) and legislative branches (for example opposition leaders, Senate minor parties, indeed the Senate itself). But perhaps the hardest example is the best one of all: the example of national political leadership demonstrated by Peter Andren, the independent House of Representatives member for Calare in New South Wales (see below). Lower house independents do not have any of the advantages enjoyed by their Senate counterparts of holding the balance of power.They should not matter, politically. Lower house independents are the puny and distant cousins to prime ministers. Governments do not depend on their support and the official opposition can get along just fine without them.

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Leadership should not be confused with power: there are many forms of leadership authority just as there are many forms and offices of public power. The electoral system in the lower house tolerates the occasional independent, who must be something of a local hero to outvote the major political parties in the electoral contest in a single-member constituency using the preferential voting arrangement which usually siphons off independent votes to one of the major parties. In the absence of the Senate’s multi-member proportional system, independent candidates who contest House of Representatives seats face formidable obstacles, which do not end with the rare election upset. An independent member of the lower house is at the tail-end of status and power, with an unlikely prospect of leadership potential. But they can make their mark. Pauline Hanson was a leader of sorts (or out of sorts) when serving as an independent member from 1996 to 1998. Her maiden speech is one of the most influential policy initiatives in recent Australian history.50 One marginal voice can at times rise to dominate public policy. But although Hanson might have been leader of her One Nation party, few have ever accused her of national leadership. Contrast her case with that of fellow House of Representatives independent Peter Andren, originally elected at the same time in 1996 but still serving three elections later. Andren is an interesting case study in national political leadership because of the contrast between the integrity of his policy stands and the opportunism evident in the policy stands of both government and opposition members, including of course fellow independent Pauline Hanson. Andren’s situation superficially resembles that of Hanson. Both explain themselves as anti-politicians and both campaign against the cosy funding deals (salaries and perks for staff as well as elected members) arranged by the major parties to reward incumbency. In David Solomon’s words, Andren rose to national publicity as ‘a critic of politicians’ perks’.51 Both he and Hanson see themselves as outsiders speaking up for ordinary voters disenchanted with the way established parties have captured ‘the system’. Both attack ‘fat cats’ in government who are too removed from the plight of ordinary Australians. Both attack economic rationalism and financial deregulation, and defend the rights of regional communities to jobs and better access to public facilities. Both ridicule the republic debate as a red herring.

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Both, that is, are open to populist complaints about the power and privilege of entrenched establishments.Yet Andren went to the 2001 election with a policy of explicitly rejecting his electorate’s overwhelming support for Howard’s anti-refugee populism. To use Walden’s distinction, Andren offers a remarkable model of popular leadership in contrast to Hanson’s populist leadership.Andren had won in 1996 (with a primary vote of just under 30 per cent) and again in 1998 (a primary vote of 40 per cent) and again in 2001 with a primary vote of around 51 per cent, followed in 2004 by a slightly reduced vote.52 As the Tampa election approached in 2001, he broke ranks with the Howard government’s ‘pandering to the electorate’.53 The Labor opposition tried to fight the election on domestic issues, making only the most general of policy commitments on international issues.This convergence of government and opposition views provoked former Liberal Senate leader Fred Chaney to complain that ‘the political leadership in Australia is … essentially appealing to the worst in our natures’.54 Andren very early broke ranks with the Labor opposition by forthrightly defending what he saw as Australia’s ‘moral obligations’ under international law to settle aslyum claims in a ‘humane and moral way’ on Australian soil, in contrast to the Howard government’s ‘Pacific Solution’. More open than the official opposition in labelling the government’s strategy ‘a cynical vote grabbing exercise’, Andren explicitly condemned the government’s failure on ‘issues of leadership and principle’. He was unmoved by the 70 per cent voter support for the ‘Pacific Solution’, arguing that it is ‘a 70 per cent largely built on fear and ignorance’ – more of ‘a measure of how much work needs to be done to lead our people and our country’ than an indicator of public legitimacy.55 Labor eventually opposed Howard’s August border protection bill which authorised government officials to use unchallengeable discretionary powers to seize shipping in Australian waters. Beazley apparently told the Labor caucus:‘If you want to lead this country, it doesn’t mean in all circumstances you agree with the majority opinion on a matter.’56 Andren also opposed the first bill, acknowledging that ‘perhaps my electorate supports this legislation right up to the hilt – but I do not’. Andren argued that to his own electorate he owed ‘my loyalties and my explanation’, saying that he feared that electoral politics would give whoever won the election ‘a poisoned chalice’ with the eventual victory ‘political but certainly not moral’.57

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Conclusion Leadership gurus feed our fondness for great leaders. Even the most cautious admirers of political leadership still ask us to look up to leaders who can reflect our best democratic instincts.Thus the late Melbourne political scientist Graham Little laments Prime Minister Howard’s limitations when ‘representing Australians emotionally’, despite Howard’s ‘long march towards the image of “strong leadership”’. Compared to Tony Blair, the darling of social-democratic leadership, Howard seems to Little as though he ‘came out of another age’.58 This sort of leadership-envy of foreign greatness would probably confirm Howard’s canny view that his critics are out of tune with popular Australian sentiment. Howard has won four elections: it is more likely that many of his critics come ‘out of another age’. If so, this confirms my fear that social democrats fall into the trap of trying to replace a conservative populist with a progressive populist, nicely illustrated by Little’s support for those ‘envying the British Blair’s emotional leadership’. Howard’s electoral support swells when he is denigrated by the social-democratic elite. As Malouf has warned, when castigated as narrow and unimaginative, Howard ‘knows, as his clever critics do not, that when he is mocked in these terms, a good part of the country feels mocked with him’.59 Howard appreciates that successful democratic populism involves the rejection of not only established political leaders but also elite opinion-leaders. As liberal critics like Robert Manne concede, Howard is an outstanding conservative leader precisely because he has ‘a real understanding of the hopes and fears of ordinary Australians’.60 The debate over Howard’s leadership should warn anti-populist democrats that democratic populism is very compatible with prime ministerial power. Replacing a conservative chief minister with a progressive one will do little to change the underlying populist dynamics. I have illustrated this by comparing Howard with his populist challenger, Pauline Hanson, and his anti-populist conscience, Peter Andren. My claim is not that Andren models the social-democratic alternative but that he illustrates in a refreshing way the sort of broader leadership platform that is compatible with dispersed political power under the Australian system of government. For my purposes, Andren highlights the potential leadership role performed in any number of political offices across our constitutional system of dispersed powers. Instead of praising their work as supportive spokes in the wheel of

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national leadership, we typically ignore them, preferring instead to castigate the nut at the centre of the wheel. We could expect further contributions to national political leadership if only we were prepared to sing more openly the praises due to these practioners of dispersed leadership.Andren alone can do little to defuse the type of populist leadership entertained by Howard. But social democrats can take comfort from the many Andren-like elected public officials sharing the powers of national political leadership in ways that frustrate the populist ambitions of prime ministers. Green senator Bob Brown is another candidate, as is the longest-serving senator Brian Harradine, both of whom opposed Howard’s ‘Tampa tantrum’. Then there are the Australian Democrats, if only to show that the Senate really does allow minor parties a major role. The facts of Australian national politics over the last decades recognise the arrival of a system of dispersed political power.Time now for political analysts to tease out the theoretical implications of this system and identity the emerging ‘rules of the game’ under this new framework of national political leadership. Other institutions of national governance, such as the courts, have begun to move into this dispersed public space. The fact that Howard’s spear-carriers like Minister Ruddock have attacked the courts is ample proof that power-sharing threatens populist leadership.The instinctive support for the courts by social democrats should now be supplemented by a more considered reappraisal of leadership models capable of defusing democratic populism. Graham Maddox, one of Australia’s ablest analysts of political leadership, acknowledges that although Howard can ‘demonstrate resolute and courageous leadership’ exemplified in gun control, more typical is his conservative or maintenance mode of leadership. I have tried to suggest that Howard’s political skill is more reconstructive: re-ordering the political frame of reference around democratic populism, while re-ordering the social frame around ‘mutual obligation’ based on an Australian variant of the international neo-liberal agenda, as Johnson among others have examined.61 But Maddox is certainly right in his warning that ‘the study of leaders good and bad in the end involves the search for the mainspring of moral courage and resolution that will advance a democracy on the path of justice’.62

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PA RT I I I

ETHICS IN G OV E R N M E N T P R AC T I C E


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Chapter 5

R E S P O N S I B L E G OV E R N M E N T Relationships of Principle

This chapter moves from ethical standards to practices of government, reviewing arguments over the architecture of Australian ethics in government regimes.The picture blends national and State government developments, with no pretence at providing a faithful portrait of the detailed situation in any specific jurisdiction. My intention is general rather than specific, aiming to identify Australian debate over the prevailing elements in developing policy frameworks.There is no one model of Australian ethicsin-government regulation. In some respects the Commonwealth government is ahead of the States and in other elements one or a number of the States are ahead of the Commonwealth. The Australian Commonwealth and State governments share a commitment to the forms (and norms) of responsible parliamentary government, derived from what is now called ‘the Westminster system’ of responsible government but modified in many fundamental ways. These modifications include the federal system itself, the written constitution, the formal separation of legislative, executive and judicial powers into three branches sharing responsibility for the power of government, and the elected bicameralism of the national parliament which has acted as a national model with State arrangements increasingly modelled on it.The list could go on, with many other important aspects of Australian governance not directly derived from this constitutional framework but quite different from the supposed original in the ‘Westminster model’, such as a statutory basis for the public service. In many ways, Australian governments are ‘at home with ethics’, benefiting from cosy arrangements devised by political executives confident that

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PA R T I I I • E T H I C S I N G O V E R N M E N T P R A C T I C E

they have a right to take responsibility for the state of ethics in government. Governments appeal to the ‘terms of trust’ to secure public confidence for their self-regulatory schemes, where the responsibility of government officers is tested internally against the government’s own standards and by the government’s own review mechanisms. Governments are less comfortable with external standards derived from accountability models which reverse the onus of proof, calling on officials to demonstrate their integrity. These accountability approaches usually arise only after discoveries of systemic corruption, one example being the establishment of the NSW Independent Commission Against Corruption (ICAC). But governments are more ‘at home’ with responsibility models which allow greater self-control to government to monitor and report on its own ethical conduct.This is consistent with what governments claim are the underlying norms of the Australian system of responsible government: that executive governments accept that they are responsible for the state of ethics in the system of government, until such time as they lose the confidence of parliament (which as they know is very rare) or the voting public (which is not so rare). Building on earlier chapters, my aim in chapters 5, 6 and 7 is to identify something of a lattice of leadership, plotting the contribution of different political offices to ethical leadership in government. I accept that many of the traditionally invoked norms of responsible government rally round the centre, taking it on trust that the political executive should assume overall responsibility for the state of play of ethics and indeed many other aspects of government. My view is that the further we move away from such autocratic ‘Westminster’ norms, the closer we are likely to get to a democratic system of ethics in government.1

Ethics by example One simple but useful way of sizing up the current state of ethics in Australian government is to ponder the 2001 general election and the conduct by the Howard government, its party advisers and the federal public service as revealed in the ‘children overboard’ affair and the preceding events known as the Tampa affair.There is a growing literature on the political and administrative ethics surrounding these events, most of which suggests that the re-election of the Howard government came at the price of unprecedented damage to the government’s reputation for public integrity. The government won the election and, not surprisingly, defends its integri-

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ty in terms of having earned the public mandate to retain the responsibilities of executive power. The government has defended its ethical credentials by pointing to the balance between its right to use the responsibilities of governmental power as it sees fit (acknowledging that this right is subject to the limits of the law) and its proven public accountability as evidenced by its electoral victory. From the government’s point of view, no law was broken during its tenure in office, and the people spoke, giving fresh legitimacy to the governing coalition. In this simplified account, the government’s take on ethics in government is a classic appeal to the ‘terms of trust’ to justify the government’s discretionary use of its powers by reference to the renewal of public trust in the government granted by electors at the election. Mandates are tricky things, and the same election also returned a solid non-government majority in the Senate, which contests the right of any government to claim a mandate to govern. The Senate select committee which inquired into ‘a certain maritime incident’ reported that the government misled the Australian community about threats from asylum-seekers and that this deception was calculatingly deliberate, with little or no interest in trying to correct the initial and faulty Defence intelligence.A subsequent Senate committee has built on this initial inquiry and reported on the need for new legislation to bring greater accountability to bear on governments’ use and abuse of the hidden power of ministerial staff.2 Both reports contain detailed examinations of suspect conduct of government ministers in abusing their powers over the public service and abusing their responsibilities stipulated in the ministerial code of conduct not to deceive the public and their obligation to correct any misleading public information, even in cases where there has been no deliberate intention to deceive. These Senate accountability inquiries have undercut much of the credibility of the government’s ‘terms of trust’, providing a good illustration of the inevitable swing from responsibility models preferred by governments to accountability models preferred by oppositions – at least when in opposition. The ‘children overboard’ affair is far from over, because so many aspects of the inner story have yet to be publicly revealed. Fresh evidence about government lying emerged as late as August 2004, when Mike Scrafton, a former federal public servant on secondment to the ministerial office of Defence minister Peter Reith, became the centre of public attention. Scrafton wrote to The Australian offering ‘a small footnote’ to the history of

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the pre-election affair illustrating the vulnerable value of ‘truth in government’. I have already mentioned this case in my Preface, when commenting that the timing of the 2004 election coincided with the resurfacing of this lingering issue. Scrafton had already been the subject of considerable public attention during a 2002 Senate inquiry into the children overboard affair, which had decided not to call him as a witness. Fast-forward to 2004, and Scrafton reports that both his public service head and his minister’s office had advised him ‘that there had been a cabinet decision directing that I not appear’.The Senate committee knew as much and so left him alone, along with all ministerial officers. Having since left the federal public service, Scrafton thought the time had come to answer the question ‘What would I have told the Senate committee?’ His answer was that he had several telephone conversations with Prime Minister Howard in the week before the 2001 election – indeed, on the eve of Howard’s final pre-election National Press Club address – when he officially advised Howard that there was no Defence evidence to support government claims about asylum-seekers throwing or even threatening to throw children overboard.3 Howard’s 2001 Press Club address ignored Scrafton’s advice and gave unqualified support to earlier, and incorrect, public service advice.And in August 2004, Howard responded that Scrafton’s version of events was at odds with his own recollection of their conversations. This denial prompted Scrafton to solicit the public intervention of another former federal public servant, Jenny McHenry, who was former head of Defence public affairs. McHenry reported that Scrafton’s current version matched the one he had given her at the time in 2001.4 Scrafton was a former Defence intelligence official, inspired to take public action in part because of the governing party’s scornful dismissal of the remarkable public letter of early August from forty-three former defence and foreign affairs officers charging the government with misleading the public over the Iraq war. I will examine this Iraq-related incident in chapter 7. Here my focus is on the deepening doubts about the government’s calculated public misinformation in 2001. In response to government questions as to why he had not spoken up earlier, Scrafton replied: ‘The Government did not want me to talk about what I knew.’5 He also suggested that the public service was affected by a climate of fear of reprisals. In Scrafton’s words: ‘I was a public servant with a mortage. What

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public servant in my position in their right mind would have told somebody … that the Prime Minister may have misled the country at the Press Club.’6 This displays a nice sense of realism. McKenry did not differ:‘as a public servant it was not my role nor my responsibility to enter that debate’ over charges of government lying.7 Or to use the words of journalist Paul Kelly:‘serving career bureaucrats don’t undermine prime ministers.That is not their job.’8 This suggestion about the risks of speaking up frankly and fearlessly was later denied by Max Moore-Wilton, who was head of the Department of Prime Minister and Cabinet at the time. Describing Scrafton as a ‘weak personality’ – thereby implying, as discussed briefly in chapter 1, that ethics in government is a matter of strength of character – Howard’s former chief bureaucrat stated: ‘If he wished and felt strongly, and particularly felt it was an issue of principle, he had a duty to bring that forward, and he didn’t do it.’9 Former Treasury secretary John Stone thundered: ‘where is the note for file that a truly proper public servant would have written?’10 While this classic bureaucratic question hung in the air, one of the navy heroes of 2001 who had dived from ship to sea to rescue sinking asylum-seekers – able seaman Laura Whittle – reported that she had never seen any firsthand evidence to support the government’s version of ‘children overboard’.11 Scrafton’s open letter thus sparked extensive media reporting, with public spats between Howard and Scrafton, including Scrafton’s taking a lie detector test on commercial television.When Scrafton passed this public test, Prime Minister Howard responded, ‘I will submit myself to the great lie-detector test in Australian politics and that is the collective judgment of my fellow Australians’.12 He did and he won. In the campaign for the 2001 election, Howard had claimed that he was simply telling the community what he had been told officially about children overboard. If that advice later turned out to be wrong, then at worst his conduct was that of unintentionally misleading the public. And in the lead-up to the 2004 election, Howard argued that his claim to be acting strictly on official advice was still true: meaning that Defence in particular had still not officially (in writing) advised him that initial Navy intelligence was wrong. In this narrow formal respect, Howard might well be right, having repeatedly told what Professor Patrick Weller calls ‘the truth but not the whole truth’.13

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Back to 2001 The best investigative account of the ‘children overboard’ and related incidents is Marr & Wilkinson’s Dark Victory.14 The story begins with the Norwegian vessel the Tampa, which in August 2001 went to the rescue of 438 ‘illegals’ on a sinking Indonesian vessel: mainly Afghans fleeing from the Taliban government, collected together in Indonesia by people-smugglers intent on ferrying them to Australia.This book is a war story of sorts, detailing the armed resistance marshalled by the Australian government against the perceived threat posed by boat people to the security of Australian sovereignty in the months leading up to a general election. It is also a political thriller, documenting the struggle within the government over deployment of military forces and the daring risk management of the government’s most astute political advisers, which won out against the traditional caution and risk-averseness of the professional military, particularly the Navy, committed as much to due process as to results. The authors suggest that the 2001 electoral victory is qualified by a stain of darkness, marking the Howard government’s deceit of the public through the manipulation of the truth about the significance of the increase in asylum-seekers (‘boat people’) during 2001, culminating in the contortions of the ‘children overboard’ affair which helped consolidate electoral support for the government.The Navy was instrumental in preventing the Tampa from docking at the Australian territory of Christmas Island, just as it was instrumental in early October in rescuing 223 boatpeople from the ‘Siev 4’ in what the Howard government portrayed as an attack not just on Australian territory but on sovereign Australian values. The attack became an election theme: the ‘Siev 4 illegals’ were not only unwelcome ‘queue jumpers’ but were untrustworthy and uncivilised manipulators of Australian assistance, even to the point of throwing children overboard to get Australian compliance with their demands for rescue and access to Australian care and custody. Or so the government claimed, attributing the ‘intelligence’ to Navy officials when it originally seemed correct, but failing to mention subsequent contrary Defence ‘doubts’ or ‘uncertainties’ when the story wore thin. There was, in truth, a war developing: the beginning of Australia’s war against international terrorism, which coincided with the Howard government’s Tampa tantrum of August 2001 and was reinforced by the physical experience of Howard trapped in Washington when visiting the Bush gov-

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ernment on 11 September, less than a month before calling the election – all of which dovetailed nicely with the alleged ‘children overboard’ affair. The issue is not really whether the government lied to voters but how cleverly the government had already committed itself to playing the race card in the battle for public support. Howard’s advisers will be flattered to find how closely Marr & Wilkinson trace their skilful reinforcement of public sentiment about Australian vulnerability and the need for decisive leadership. Marr & Wilkinson’s story holds that the Howard government’s victory in 2001 is a case study in ‘international best practice’ political management, with John Howard deserving recognition as Australia’s master of the political art of misinformation.The ‘v for victory’ is overshadowed by the ‘w for wedge’: John Howard is portrayed not in terms of international leadership but as a world leader of wedge politics – getting between political opponents and their natural supporters. Marr & Wilkinson do not hide their own personal views about the nastiness of the dark arts of deception practised by the Howard government, epitomised by the singular achievement of retiring Defence Minister Reith as the wizard of weasel-words, as gifted in consolidating public support as he was in fracturing the confidence of the Labor opposition. Marr & Wilkinson are reporters, with no inclination to preach about solutions. Their strength is their ability to mine the record, including through the use of FOI requests for Defence evidence, and to relate the surface of daily events during the second half of 2001 to a deeper source of partisan calculation. If the devil is in the detail, then their book is an account of the devil’s workshop, showing a government tempting a people with the fear of terrorism.The authors’ extensive use of the public record, particularly that generated by the Senate inquiry, is also supplemented by quite extensive interviews with most of the key players, to build up a richly layered picture of contemporary Australian governance. One strength of this account is the use of the court records relating to the Federal Court challenges against the government’s alleged unlawful naval detention of asylum-seekers. Marr & Wilkinson show that there rarely is a ‘whole of government’ view on such basic things as legal duties, with important differences of professional opinion across Defence, Attorney-General’s and central agencies. For those who care little about the authors’ advocacy of the rights of the refugees, Dark Victory still delivers fresh evidence about the norms of

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power in Australian government. The book profiles prominent figures, beginning with the Norwegian captain Arne Rinnan, then Commander Norman Banks of HMAS Adelaide, joined by close studies of the Howard ministry activists such as Ruddock and Reith, followed by portraits of power illustrating the style of such bureaucratic generals as Max MooreWilton and Jane Halton, as well as military masterminds like Admiral Barrie and Air Marshall Houston.The book is a gallery of public managers, proving the point that systems are held in place by individuals, each with a distinctive sense of their professional role. Some of these officials participated in interviews with the authors and in the case of Barrie in particular we are offered many quotes that help explain his delicate situation as Chief of the Defence Forces, acting as something of a power-board with multiple leads connecting various military, bureaucratic and political agencies. Reading this book, one might conclude that no one person can play that role and expect to do justice to the interests of all concerned.There are bound to be power surges followed by blockages. Unlike the public service bureaucracy, the military bureaucracy gets more than a hint of praise, particularly through the detailed account of the Navy’s stubborn professionalism, even to point of getting up the nose of government loyalists. The civilian arm of Defence gets off very lightly, as though Minister Reith knew how to manage well enough on his own. All of this is to say that Dark Victory is less about the weaknesses of Defence intelligence about ‘children overboard’ and, in a backhanded compliment, more about the strengths of the Howard government’s strategy of ‘truth overboard’. Dark Victory goes to the rescue of many truths left in the wake of the victorious Howard ship of state.

From the depths of corruption I now contrast this national case study with a State case study. The real situation of ethics in government in Australia is often expressed with greater clarity at State level, where fewer fancy words hide the threats to public integrity. I want to use the famous 1992 case of the fall of NSW State premier Nick Greiner to flesh out some of the basic problems facing public integrity. New South Wales established the Independent Commission Against Corruption in 1989 as the chief policy instrument in a set of initiatives directed against fraud and official misconduct in government. Mr Greiner, the premier, headed a recently elected government

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brought to office in no small measure through his election promise of an ICAC-type body to combat fraud and corruption in government.The premier introduced a wide-ranging ethics program into the State’s ageing and rusty public administration, which was reformed along orthodox public management lines of organisational efficiency and political responsiveness. Three years later, soon after being returned to office only with the formal support of a small number of independent MPs, Mr Greiner was declared ‘corrupt’ by ICAC.The allegation focused on his offer of what his opponents described as a bribe of a public service job to Dr Metherell, a former party and indeed ministerial colleague who had become one of the independents and a prominent critic of the government. ICAC cleared the premier of the bribery charge, but reported that he was still ‘corrupt in terms of the ICAC Act’ for his ‘partial exercise’ of his office in bypassing established appointment procedures protecting the merit system of public service. ICAC, which only took up the reference upon formal direction by the parliament, declined to recommend any further legal prosecution, leaving it up to parliament to determine the political fate of the premier – but finding that there existed, under the strict terms of the Act, ‘reasonable grounds’ for the premier’s dismissal.15 Mr Greiner quickly resigned as leader and later, together with another minister named in the report, also from parliament.The governing party quickly elected a new leader in John Fahey who, with the support of parliament, became the new premier, only to lead his party to defeat at the next election. Many elected politicians, including a number of nationally prominent party opponents of the ex-premier, spoke out against the bureaucratic monster which had turned against its creator. ICAC had faithfully applied the remarkably strict test of official corruption found in the ICAC Act; it included that very open test as to whether official actions were ‘partial’, understood in this case as partial compliance with the requirements of the merit-based system of public service employment.Within a few months the State appeals court overturned ICAC finding in a two to one decision, although their doubts were directed to ICAC’s subjective test of the grounds for dismissal from office, rather than the initial finding of ‘partiality’. The case reveals much more about government ethics than might be apparent from the publicly reported preoccupation with ‘corruption’. The law includes, as a leading category of corruption, conduct which involves ‘the partial exercise … of any official functions’. The ICAC law stipulates

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that in making findings of corruption the Commission must satisfy itself that the ‘partial’ actions are of sufficient magnitude that, in the words of the Act, they ‘could’ constitute a criminal offence, or a disciplinary offence, or constitute at the very least ‘reasonable grounds’ for dismissal. ICAC used only the ‘reasonable grounds’ case against the premier, arguing that his conduct threatened his continued hold on the office of chief executive. Parliament could well have reasonable grounds to cause his dismissal by withdrawing its confidence in his administration. As ICAC emphasised, whether parliament actually caused his dismissal was a matter for parliament alone. On appeal, the superior courts declared this to be wrong in law as an unreliably subjective test. Political critics were outspoken in their criticism of so-called ‘ethics police’. Former Labor prime minister Bob Hawke, for example, after conceding that the premier had seriously misjudged the political risks of the job offer, raised what he termed a ‘profound question of public policy’ in warning against any trend to confuse ‘a lack of wisdom, mistakes of judgment or plain bloody stupidity with corruption’. Similarly, Queensland State premier Wayne Goss protested against the trend represented by the ICAC finding of casting politicians’ behaviour ‘only in dark and self-interested terms’: judging actions according to such an elevated impartiality test is politically naive because ‘seeking a party advantage’ is ‘what politicians do each day at the office’.16 The ICAC report had anticipated this, even to the extent of quoting from the premier’s own explanation of the needlessly high standards of what Mr Greiner called the fearsome ‘disinterestedness’ standard, under which elected politicians may ‘act only in what they consider to be the national interest’. As Greiner clearly recognised, successful enforcement of standards of ‘disinterestedness’ would require the expulsion of partisanship, parties, and party government from Australian political life.17 Of great interest here is the debate over the value of merit and the fear of political manipulation of the merit system of public service.The ICAC report reveals two related ethical dangers embedded in the Australian political system: first, a corrupt tendency for politicians to act partially by, second, influencing officials to act improperly in unethically bypassing the procedural conventions of the merit-based public service. In the opinion of ICAC, the premier ‘failed the test of impartiality’. He attempted to appoint to a permanent public service position a political opponent on the partial grounds of the ‘political advantage’ of the government, and not on the

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properly impartial grounds of the individual’s merit. ICAC carefully distinguished appointments to the merit-based career public service from those to government service, such as boards of public enterprises, diplomatic posts and politically sensitive agency headships.This partiality test presumes that one can reasonably distinguish career public service cases from routine political appointments by governments to public offices, which are conventionally accepted as being within the gift of executive governments. Being part of a conventional government service, they are therefore not protected by statutory provisions stipulating appointment solely on the basis of merit, as in the case of the senior executive position established under the State’s Public Sector Management Act examination. Ministers brought pressure to bear on the official head of the NSW career public service to apply the appointment provisions of this Act ‘in a positively partial fashion’ which, if not strictly unlawful, was ‘improper’ in the opinion of ICAC.18 The ethical agony of public service life is illustrated in the situation of the administrative chief of the State system of public service, the secretary to the premier’s department, who had been put ‘in a most invidious position’ by the government. His practical problem was how best ‘to exercise a discretionary power in highly unusual circumstances’. This involved the dilemma of balancing his obligations to his minister, the premier, and his statutory obligations to care for the ‘professional public service’. In finding that the most senior official had acted ‘improperly’, ICAC reported that he had done the bidding of the government and was ‘party’ to the ‘positively partial’ process in which there was ‘no genuine merit selection’.19 The ethical test of proper use of powers cannot be reduced solely to a legal one without exhausting ethics of any moral meaning.The policy task is to identify the appropriate bodies with responsibility and capacity for auditing the ethics of official discretion. The two extremes of ministerial and judicial bodies each pose tests of form which too easily abstract from the substance of the public interest. The alternative of closer legislative oversight, which suggests itself as the unexplored remedy, suffers from Australian uncertainty as to the constitutional credibility of a legislative body controlling executive officials. One of the most significant institutional developments to come out of the Greiner affair is the articulation of legislative ethics. For present purposes, developments in the State of New South Wales can stand as representative of legislative ethics trends in the larger Australian scene, although

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different jurisdictions will be a little ahead or behind the trends reported here. Australian public servants often find themselves in professional dilemmas, caught between their organisational duties to their ministers who direct the activities of their agencies and their countervailing obligations of accountability as public employees to parliamentary oversight committees. The NSW parliamentary code is a concise six-point document, designed to dovetail with the premier’s code of conduct for his ministers and with ICAC’s statutory responsibility for monitoring corruption in the public sector, including parliament. This code is short and legalistic, full of ‘must dos’, such as reminding members that under their general duties as trustees of the public they must declare conflicts of interest and must declare gifts, must resist bribery and must refrain from using confidential information for private gain.Along with Queensland, New South Wales has moved towards appointment of an ethics counsellor to help parliamentarians organise their private interests in ways that do not call into question their commitment to their public duties. Despite this, ICAC reported in mid-2003 on the inappropriateness of fully paid elected members retaining secondary employment in outside jobs, triggering the resignation of one parliamentarian.20 The existing members’ code treats these financial issues in terms of a duty to disclose conflicts of interests but leaves it up to each house of parliament to determine exactly what constitutes a relevant conflict. To help members, the code states that political parties ‘are a fundamental part of the democratic process and participation in their activities is within the legitimate activities’ of members. This is a reaction to the original investigation by ICAC into the party-political scheming of Premier Greiner, whose cause has thus been partly vindicated by this endorsement of the value of party politics. In common with most Australian parliaments, each house of the NSW parliament has established specialist ethics committees based on an overhaul of the traditional rather self-protective committees on parliamentary privileges. The inquiries and reports of these committees are now important sources in the Australian policy literature on public sector ethics.The NSW upper house ethics committee has signalled that this demonstration should proceed by internal training rather than external policing and has undertaken to produce a novel casebook on legislative ethics as an adjunct to the work of the ethics commissioner, whenever appointed.21

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To the heights of ethics Is there evidence that government ethics is in better health than the foregoing accounts suggest? Developments in Queensland illustrate many of the boldest policy measures that have emerged in recent years in Australian public service ethics. I want to tease out the distinctive pro-ethics orientation which Queensland puts into balance alongside a strong anti-corruption program. Queensland does have its own version of ICAC, currently known as the Crime and Misconduct Commission. This body represents the emerging standard being followed by most Australian State governments when tackling public integrity.According to its legislation, the CMC was established to combat ‘major crime’ and ‘to continuously improve the integrity of, and to reduce the incidence of misconduct in, the public sector’. The CMC is watched over by a State parliamentary ‘crime and misconduct committee’ with the power to participate in the selection of CMC commissioners.Among the CMC’s most recent investigations is the January 2004 report on alleged political interference with the criminal prosecution of Pauline Hanson. But although the CMC illustrates a vigorous anti-corruption initiative, my interest here is in the relatively unusual pro-ethics initiatives emerging from Queensland.22 They arose in the wake of the 1989 Fitzgerald Inquiry into corruption in the Queensland State government. At around the same time that New South Wales experienced a newly elected government establishing ICAC, Queensland had a State government experimenting with alternative policies to combat fraud and corruption in government. Whereas the ICAC model is, as its name implies, geared up against invasive and negative elements which corrupt the integrity of government, the Queensland model attempts to promote positive standards of ethically appropriate official practice. Following the main outlines recommended by Fitzgerald, the National Party government established, among other anticorruption institutions, an Electoral and Administrative Review Commission (EARC) to advise government on best policies and practices for rebuilding public confidence in government. EARC existed from 1989 until it completed its series of systemic reviews of State governance in 1994.Among its many inquiries and reports is that of 1992 on codes of conduct for public officials, which was published around the time of the ICAC inquiry referred to above.23 This was one of EARC’s primary contributions to ethics in government, and it

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broke ranks with many traditional Australian approaches to the regulation of public office. EARC was unconvinced of the public policy merits of the conventional view about administrative morality, which holds that officials are neutral instruments of the government of the day, with no professionally independent role in the policy process. Further, it held that ‘trust’ in government referred principally to the confidence which ministers have a right to expect of their loyal officials. Focusing on ‘the duty of trusteeship’ as the primary orientation for public officials, EARC reported that the need for new policies and practices on administrative ethics was urgent now that administrative discretion was being accepted as an inevitable and unavoidable element of the public policy process in systems of responsible government. But the mere articulation of public trust concepts is not enough, as EARC knew full well, for there is ‘no settled view of the ethical standards’ appropriate for ‘public officials in a democratic system of government’. EARC saw its role as including that most basic of public policy tasks: drawing together the core elements of the absent consensus on administrative ethics.Where other review bodies had attempted to define the substantive moral responsibilities of the ethics of public office, EARC mapped out new ground by attempting to define what one might call the process framework of obligations of public accountability.This is the framework regulating the ways in which officials’ ethical discretions are, if so required, publicly justified. EARC’s distinctive approach was to focus on the concept of public office as the primary category, with the stated aim of devising ‘a set of distinctive relationships inherent in our society’s concept of “public office”’. The result was a refreshing reappraisal of the relevance of the constitutional framework of the Westminster-derived tradition of responsible parliamentary government, which has in practice shown great ‘potential for conflict between the public and private loyalties of public officials’.24 EARC recognised a systemic defect in Australian constitutionalism: the exclusion of appropriate checks and balances under the political fiction that public officials can and should act as neutral, technocratic instruments, unbiased by value distractions relating to their wider public interest obligations. In contrast to many other ethics reviews, EARC went beyond the common initial steps of identifying flaws in the orthodox doctrine of neutrality and calling for recognition of a values dimension to public office. Such a generic call for values (surprisingly unspecified in many cases) is the

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easy part of administrative ethics; the hard part is devising institutional environments that invest in ethics within public agencies. By contrast, EARC saw the importance of providing an institutional dimension to this search for values-based public administration, and it turned to constitutional structures to provide a legitimate grounding for administrative ethics. The proposed solution was the challenging constitutional doctrine that public offices are positions of public trust, which involve a balance of policy responsibilities and process accountabilities. Officials exercise power over public policy through their administrative discretion in advising on, implementing and evaluating government programs. In contrast to most ethics regimes which attempt to specify the values with which proper public administration should comply, the EARC approach put to one side the principles of motivation (the right intention) while paying greater attention to those of public justification (the right result). For public officials, the basic test of being ethical is meeting the tests of open, public justification of results as constitutionally required by the structures of accountability. This approach is not simply an institutional one but a constitutional one that locates appropriate regime values in the core political institutions which constitute the system of democratic governance. Not all have been convinced that constitutionalism thus understood gets us far enough beyond the limitations of role ethics. One understandable fear is that this route might reduce administrative morality to compliance with the endless demands of the agents of accountability for more and more information about administrative process, regardless of whether the public interest is being served. When push comes to shove, trusteeship becomes responsiveness to political demands made in the name of, but not necessarily in the service of, public accountability. The EARC response is that the constitution of accountability provides the essential processing structures within which administrative discretion is examined. Further, examination by accountability agents must itself meet certain compliance standards, the aim being to relate the two parties in an audit of the ‘trustworthiness’ of the officials under examination. Like ICAC, EARC accepted that their new standards might be regarded as too demanding for public life. In practice, much depends on the working relationship between the office of public trust and official actions that respect the ‘duty to act in the public interest’. Public trust notions might work most effectively as inhibitors on self-interest, reminding officials that their pow-

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ers will be judged according to a benefits test, with a critical eye to the presence of official self-interest or partiality. Trust thus understood serves as a check on the irresponsible use of public office for private gain. But EARC opened a door to another mode of managing the ethics of office, in which the concept of the public interest (examined in chapter 1) serves as a positive goal against which actions will be judged by the agents of accountability. In this alternative mode of official ethics, the appropriate standard is not the negative one of avoiding self-interest but the more exacting one of promoting the common good or public interest, as judged according to public dialogue involving ‘three overlapping criteria’ derived from the set of three legitimate perspectives of the executive government, professional standards and personal ethics.25 The general Queensland framework is now regulated through the State’s public employment law and the specific ethics regime established by the Public Sector Ethics Act, originally passed in 1994.26 The latter is the immediate product of the government’s response to EARC and is an interesting consequential rewrite of the basic legislative provisions for public sector employees. The basic legislation states that a State public service exists ‘as an apolitical entity responsive to Government needs’ and committed to ‘a spirit of service to the community’. This establishes the formal declaration of a public as distinct from a government service.The basic law also stipulates the core principles of public service management, nicely captured in the duty to implement government policies ‘responsively and responsibly’. So too, official conduct is acknowledged as a ‘public trust’ such that officials are expected to carry out their duties ‘impartially and with integrity’. Who is responsible for making this happen? Interestingly, the law recognises that the ultimate responsibility lies with the State premier or chief political executive, working normally through the public service commissioner, whose own functions must be performed ‘independently, impartially, fairly, and in the public interest’, thereby modelling the qualities of bureaucratic chief executives generally. Under this legislative umbrella, the Public Sector Ethics Act establishes the specifics of the ethics regime.This law lists five core ethics principles which it declares as fundamental to good public administration: respect for the law and the system of government; respect for persons; integrity; diligence; economy and efficiency. From these core principles an extensive set of ethics obligations

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flows, with each of the five principles attracting a package of ‘should’ and ‘should nots’. For example, the principle of integrity requires that officials should ‘seek to maintain and enhance public confidence in the integrity of public administration; and to advance the common good of the community the official serves’. This is Australia’s most elevated formal statement on public integrity. The Queensland legislation acknowledges that ‘public office involves a public trust’, which is the ground of the obligation officials have to promote integrity in government and the ‘common good of the community the official serves’. The law leaves it to specific government agencies to work out precisely how groups of officials sharing public responsibilities might best ‘advance the common good’. Agency-specific codes of conduct are meant to complement this formal charter of ethical obligations, and the formal provisions of the law confine themselves to the negative realm of ‘should nots’ – prohibiting, for instance, officials from allowing personal interests to get in the way of ‘the public interest’.The law outlines the general character of codes of conduct and then identifies the preparation of agency-specific codes as a responsibility of the relevant chief executive – with the final public approval resting with the appropriate minister, thereby making the political executive equally responsible alongside the bureaucratic leadership for the carriage of codes.After that point, agency employees ‘must comply’ with the duties as codified and chief executives must ensure that ‘appropriate education and training’ are provided to employees about their rights and obligations. If that is not ambitious enough, the Queensland approach takes the unprecedented step of taking ethics into State parliament. In May 2001, the Queensland parliament adopted a Statement of Fundamental Principles remarkably different from the New South Wales code of ethics reported on earlier.The first principle relates to public confidence in ‘the institution of Parliament’ and calls on members to act in ways that will ‘maintain and strengthen the public’s trust and confidence in the integrity of Parliament’. In contrast to the New South Wales approach, the second principle is called ‘the primacy of the public interest’ and it reads in part that members ‘are elected to act in the public interest and make decisions solely in terms of the public interest’.The third principle insists that parliamentary decisionmaking be judged against this public-interest standard, made even more pointed by reference to the inappropriate role of private interest associated

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with ‘any financial obligation or influence’, including influence exercised by ‘the executive government’. Another principle reinforces this theme by stating that parliamentary democracy requires public confidence ‘in the integrity of the decision-making processes of Parliament’. From this point on, the ethics-in-parliament scheme becomes an experiment in self-regulation, with the parliamentary ethics and privileges committee taking on responsibility for monitoring compliance with these welcome but rather demanding standards. Can a committee of elected members hold their peers to these ethical standards? The fact that no unethical conduct has been uncovered by the committee does not necessarily mean that Queensland parliamentary standards are as good in practice as they are on paper.This suggests that in the next chapter we should look more closely at the general character of codes which have emerged as the preferred instrument for translating the ‘terms of trust’ into institutional practice.

Conclusion Ethical conduct in public life is about the appropriate management of work and personal relationships. Being ‘ethical’ is not simply a matter of being a ‘good’ individual, free from contamination from those around you who are not good. Being ‘ethical’ means more than strict individual compliance with a moral code or ethics charter. Being ethical in public life means being a morally competent manager of interpersonal relationships. Public ethics certainly calls on private qualities, but the important point is that these qualities are as much interpersonal as personal. Ethics is about relationships: dealing fairly with others and indeed with oneself, particularly in relation to shared responsibilities and interests. The world of politics seethes with challenging relationships. Democratic politics celebrates the open and public management of partial as distinct from impartial relationships.The very term ‘party politics’ nicely captures this celebratory aspect of democratic politics: parties being not only organised factions to promote well-known sectional interests but also valuable social opportunities to cultivate new and unknown sources of fellowship. Both sorts of parties can give rise to inappropriate conduct from those who ‘do not know how to behave themselves’, which usually means that those who misbehave have offended codes of interpersonal conduct.

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For many years, the appropriate codes of political conduct remained unwritten. As the next chapter will show, even written codes of political conduct often remain unenforced. Most analyses of this situation chart the partial use and abuse by Australian politicians of ‘terms of trust’ which pretend to codify values and practices of impartiality. My approach has differed by trying to finds ways to support and encourage various forms of self-regulation by elected politicians. My general argument in this book is that governments have frequently let themselves down when claiming to ‘take ethics seriously’ – by failing to demonstrate that their keenness for the responsibilities of self-regulation is matched by a readiness to justify their contribution to the public interest. Elected politicians have been keener to crack down on public service self-interest than to demonstrate and defend their own commitment to the public interest. With this in mind, we turn from relationships of principle to those of power, which illustrate the real world of ethics in Australian public life.

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Chapter 6

AC CO U N TA B L E G OV E R N M E N T Relationships of Power

The power of government is shared by many public officials. At the centre is the shared management of executive power by elected politicians and bureaucrats. Bureaucrats are not politicians. But bureaucrats operate in a political medium, with their conduct orchestrated and reviewed by politicians. Former minister and governor-general Paul Hasluck is frequently quoted to the effect that bureaucrats can no more avoid politics than fish can avoid water. Does this mean that an apolitical public service would be like a fish out of water? It all depends on the values and practices of ‘apolitical’ conduct, which varies with the relationships of power established within executive government.This in turn depends largely on what politicians are prepared to demand and what bureaucrats are prepared to give. In this chapter I review competing interpretations of the core value of apolitical conduct and its close relatives: neutrality, impartiality, impersonality and public service professionalism. Of course, public service life would be simpler if all the politicians belonged to the same party and took their own directions from the head of the party in government. But democratic politics values ‘the opposition’ and the policy process is open to substantial contributions from non-government politicians, who can use various constitutional and parliamentary forms and procedures to hold government accountable. Thus life is not always easy for public servants who have multiple masters, some of whom claim powers of responsibility over the bureaucracy while they stand back and review performance in the name of accountability. The relationships of power spill over the edges of executive government, flowing into the arenas of accountability established by parliament. I begin and end this

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chapter with some concrete instances of how this balance between responsibility and accountability structures relationships of public power and hence public service ethics.

Codes as compromises between highs and lows Codes are useful compromises between the hard axe of accountability and the soft respect for responsibility. Anti-corruption approaches to ethics in government take accountability as the rule and tend to see codes of ethics as welcome if insufficient instruments of public accountability. Pro-ethics approaches reinforce official responsibility and look to ethics codes to help structure the professional socialisation of power-holders. Both approaches are essential, if for different times and places.The spread of codes, particularly codes of conduct, across democratic governance illustrates something of a policy compromise between the fears of the anti-corruption advocates and the hopes of pro-ethics advocates. Codes are valuable, but no code is any better than the competence of those empowered to investigate its breaches. The Australian experience suggests that the competence of the code investigators calls for as much accountability as the alleged incompetence of the code breakers. But is it codes of ethics or codes of conduct? Again, words do matter: codes of ethics generally refer to the values and principles at the root of professional obligations, while codes of conduct generally refer, as the name implies, to the conduct and practices expected on the job when complying with those values and core principles. Codes of ethics usually aim to help judgment about important matters of professional discretion, by looking inward to the need for internal education in professional ethics by relevant professionals. Codes of conduct aim at lower but firmer ground, by looking outward to show to the world at large the standard of conduct to be expected of relevant employees, so that employees know what the public has a right to expect of them.Thus even the world of codes illustrates the choice between the hard edge of accountability schemes (codes of conduct) and the softer edges of responsibility schemes (codes of ethics). The ideal situation is not to have to choose universally for or against one option over the other but to use them both as cross-cutting complementary approaches. The merit of both types of codes is the transparency they bring to public expectations of official conduct. But even the most ardent proponents of codes know that codification is not all there is to ethics. Public credibility

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requires proof not only of official compliance with proclaimed standards but also of external scrutiny and review to ensure that the standards themselves are both fair and feasible.1 Recent Australian experience has highlighted a number of limitations of the code-centred approach to public service ethics. These limitations first arose in relation to the Howard government’s rewrite of public service legislation, intended to replace the traditional scheme of heavily prescriptive rules and regulations with an internationally credible ‘values-based’ version.The passage of the revised Public Service Act in 1999 reflects the results of extensive parliamentary debate among all political parties. Of particular importance was the opposition of non-government parties to the proposed new statement of public service values. Instead of any reference to the public interest one finds the description of the public service as ‘apolitical’, which is at best a negative definition of service values. Critics feared that this negative approach would mean that governments might be tempted to subvert traditional values of public interest impartiality by substituting value-free instrumentalism in its place, holding public servants to the new value or ethic of ‘responsiveness’, which was seen as code for political docility. Interestingly, the most hotly debated provision related to the qualities appropriate to policy advising, which is a sphere of public service activity that is becoming more prominent as many spheres of program implementation are being hived off to contract providers.2 The Howard government proposed a set of values including one that identified a standard relating to the provision of ‘accurate and timely’ advice. Critics feared that this declaration fell far short of the standards of public interest advocacy which the community is entitled to expect from their public servants.What is equally revealing is the extent of the government’s dogged but vain opposition to the change that was eventually made under sustained public pressure: rewriting this core advisory value in terms of the provision of ‘frank, honest, comprehensive, accurate and timely advice’. The parliamentary debate over this statement of values provides a rare and fascinating insight into the importance attached to words identifying the core values of public servants. The Commonwealth Public Service Act now contains a list of fifteen values and a thirteen-point statement on the preparation of codes of conduct to translate these values into workplaces in all government agencies. Not everything is reassuring. For instance, the fourth value simply states that the

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Australian public service ‘has the highest ethical values’. This might be accurate but it presumes to speak on behalf of all government agencies and employees – or at least all those staff employed under this legislation (which excludes ministerial staff).This is a classic ‘trust us’ plea, with no clear identification of the appropriate standard of ethics meant to apply. So too the value relating to the provision of frank and fearless advice begins with the bald statement that the public service is ‘responsive to the Government in providing’ frank and fearless advice – well, honest and timely advice, which lowers the bar slightly. Is the system responsive only to the government of the day, or primarily to the government of the day, or initially to the government of the day? Hardly, because the value immediately before it speaks of the public service being ‘openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public’. The ethics legislation is a political compromise between the interests of the government in wanting the energy of what earlier I called a responsibility model and the interests of the non-government parties in wanting the public security of an alternative accountability model. Some sort of balance is sensible and the amendments in the name of accountability clarify the standards of ethical conduct in ways that bald declarations do not. Getting the right balance in codes of ministerial conduct has proved equally difficult. During its first term (1996–98), the Howard government found itself impaled on the sharp point of the prime minister’s welcome but demanding code of ministerial conduct.3 The government was taken by surprise when eight ministers or parliamentary secretaries (that is, ministers in waiting) were forced to resign for various lapses of official conduct.Three ministers went for breaches of conflict of interest and the rest for various ‘travel rorts’ which breached related guidelines as well as the spirit of the new code. Another minister had the public support of the prime minister against charges of conflict of interest but, weary from the burden of repeated public justification of his apparent if not real conflicts of interest, eventually retired from ministerial office after the 1998 election. Most of the immediate commentary related to the prime minister’s reluctance to enforce strict ministerial compliance with his code. But just as important is the very existence of the code. While earlier prime ministers have had rules requiring ministers to file statements of financial interests, John Howard is the first Australian prime minister to establish a pub-

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lic code stipulating standards of ministerial conduct. The Commonwealth public service had done its policy development and had provided the former government with an important statement on accountability in Australian government which identified the place that ministerial ethics should play in setting the tone for responsible government in Australia.4 To an extent, the bureaucracy had taken the initiative and gone some considerable way towards providing whoever was the government of the day with two companion documents: an emerging report which identified the important place of values and ethics in Australian public administration, and a working draft of a set of standards for ministers. Soon after his election in March 1996, John Howard published both documents: first his version of the ministerial code and then the public service report on Ethical Standards and Values.5 The so-called ministerial code (officially called A Guide to Key Elements of Ministerial Responsibility) is not really a code but simply a public declaration by the prime minister.The document is not a legal instrument and it does not even have any formal parliamentary authorisation.There is nothing to stop the prime minister as author of the document from using his authority to alter or amend it or to interpret it as he sees fit – and nothing to stop a new government from starting all over again with a new code. As critics have argued, this is very much a small-c code of conduct. Ministerial misconduct should be understood in terms of its context, within the rules of the game of parliamentary government. Even after acknowledging the formal authority of the governor-general as head of the federal executive council, the Howard code notes that even though the cabinet is not mentioned in the Constitution, it really is ‘the central organ for collective consideration of issues by ministers’.The code usefully identifies three leading principles of collective ministerial responsibility which effectively define the operating ethic of cabinet government in Canberra, which is one of player loyalty to the captain/coach. First, all cabinet decisions ‘bind all ministers’; second, all ministers ‘must give their support in public debate to decisions of government’; third, ministers must ‘refrain from public comment’ on matters before cabinet or its committees ‘until endorsed by the full cabinet’. So who really is in charge of our national system of collective or cabinet government? Who sets the terms for collective confidence? The code is very clear that it is ‘the Prime Minister who decides’ both the agenda of business and the means of determining cabinet decisions.

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When the code finally comes to section 5 on ministerial conduct, the opening theme is that it is vital that the conduct of ministers not ‘undermine public confidence in them or the government’. As in real life, public confidence in government should depend on evidence of trustworthiness by government. But often when governments demand our confidence, all they are really doing is asking us to take them on trust.This theme of retaining public confidence can be taken in two senses. First, in a high-minded sense of public trustworthiness introduced by the prime minister’s Foreword when referring to ministerial observance of the highest standards of public trust which the Australian people ‘have … as their entitlement’.There is a second sense which is less high-minded and relates to the public credibility and electoral reputation of the government in power. Public confidence thus has at least these two meanings: a positive public faith in the trustworthiness of the ministry, and a negative sense that the ministry has not yet lost community confidence and deserves to remain in office, pending final electoral judgment.The path of honour places a burden on the prime minister to take positive responsibility for promoting and reinforcing public confidence in the trustworthiness of the ministry. But the path of convenience puts the burden on individual ministers not to rock the boat, either by speaking out against questionable conduct by colleagues or by disclosing personal details which might somehow ‘undermine public confidence’. The code also notes that ministers must also ensure that whatever they do ‘their conduct is defensible’.6 To many, a ‘defensible’ course of conduct falls short of conduct that is more openly ‘justifiable’. Defensible conduct is akin to getting off with an ‘unproven’ verdict as distinct from a full exoneration. This test of defensibility could be reduced to a minimalist one of avoiding conduct that is not capable of a public defence against charges of impropriety.This falls short of a strict ethical test of reassurance and trustworthiness. On the other hand, perhaps the code is taking a fair account of the relevant court, which is political rather than judicial. Parliament is a political forum in which the opposition parties can be expected to remain unconvinced even of the most reasonable evidence in a minister’s favour. The code in effect alerts ministers to the need to think ahead and ensure that their conduct, even in such minor matters as periods of leave while on overseas business, ‘must be clearly defensible’. The code takes a remarkably strong line against private use of public office for personal gain. It silently draws on advice given to the former

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Fraser government in the influential 1979 report of the Bowen inquiry under that government.7 Bowen’s proposed code of conduct rested on the principle that office-holders ‘may be required by the nature of public office to accept restrictions on certain areas of their private conduct beyond those imposed on ordinary citizens’.8 Such restrictions are more than simply obstacles to self-interest and should be understood as evidence that public officials are to act, in the best of worlds, as moral exemplars of public service. The Howard code is especially useful in drawing attention to the appropriate relationship between ministers and public servants.9 It recognises that ministers will encounter areas of unclear responsibility in their work with their ‘permanent secretaries’ – as their departmental heads were once called, before the former Labor government turned them into ‘departmental secretaries’ employed by the government of the day on limited tenure. The code notes that both ministers and public servants have ‘complementary roles’ in maintaining the trust on which their public partnership rests. The ethical foundation of the career public service working under the general direction of departmental secretaries is their professional commitment to ‘political impartiality’. The code recognises that ministers have very limited rights over the employment of career public servants and that they must not do anything ‘which could call into question their political impartiality’.10 Merit-based employment in the public service is about many things, but particularly about safeguarding the public service against politicisation. This is a two-way street, with professional obligations binding ministers and public servants into a public partnership.The code notes that the ‘high standards’ expected of public servants in relation to their ‘honesty, integrity and conduct’ demands of career public servants that they give their ministers ‘frank and comprehensive advice’ and ‘party-political impartiality’.The code is equally clear that ministers have ‘no obligation’ to accept public service advice, although they do have an obligation to ensure that public service advice be ‘considered carefully and fairly’.11 Many doubt that this high principle was properly respected during the ‘children overboard’ affair of 2001 or even the decision to go to war against Iraq in 2003 (discussed in the following chapter). A related ethics initiative of the Howard government was the Charter of Budget Honesty legislation in 1998.This innovation is an ambitious attempt

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to regulate what the law identifies as ‘the conduct of Government fiscal policy’.The stated aim of the scheme is to ‘improve fiscal policy outcomes’ through the interesting means of ‘facilitating scrutiny of fiscal policy and performance’. The law formulates ‘principles of sound fiscal management’ in terms of a series of reporting obligations on the Treasurer: fiscal strategy statements and regular fiscal reports; intergenerational reports; and most importantly, pre-election reports and subsequent policy costings to be issued by the public service heads of the two relevant central agencies, Treasury (dealing with government revenue) and Finance (dealing with government outlays).The ethics of honesty enter with some force when we note that the two bureaucratic chiefs are obligated to publish fiscal outlook reports whenever a general election is called and that this report must reflect ‘the best professional judgment’ of Treasury and Finance. During the election period, both the prime minister and the opposition leader may request these central agencies to prepare, and release publicly, costings of government and opposition election policies. Or so the law says. In one sense, the Charter of Budget Honesty rests on the professional independence of the public service and illustrates, at least in theory, a high-water mark of parliamentary support for ethics in government. But in another sense, outsiders have no hard evidence that those in political power are respecting the professionalism of the bureaucrats and encouraging them to get on with the job as they see fit. The scheme has yet to be challenged by opposing political parties. Inevitably it will, whenever a government is seen to be tampering with the integrity of budget processes.12 The 2004 election deserves more attention than I can give it here, with two aspects standing out. First, the Howard government acted quickly in response to the pre-election report on the state of the surprisingly large budget surplus. Howard’s expansive and expensive election promises were fuelled by government knowledge of available public funds.Yet in the week after the election,Treasurer Costello distanced himself from the public service estimates of future revenue and called attention to the need for financial restraint in the face of the increasingly uncertain state of the Australian economy. To the Labor opposition, this looked like hypocrisy: using the Budget Charter before the election to justify political promises and then retreating from the posture of promise after the election, claiming that the public service estimates of available revenue were probably unsoundly

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generous. Second, the 2004 election also witnessed a highly public tug of war between government and opposition over when, if ever, Treasury would have an opportunity to audit opposition policy costings.To many, it seemed as though the Budget Charter established something of an uneven playing field, with the government (if not the Treasury) never quite satisfied that the opposition had submitted all or most of the details of its policy costings.13 The debate goes on, probably as intensely within the bureaucracy as heatedly across the political parties. Finally, returning to the broader theme of codified ethics, I think that the puzzling self-regulation of the Commonwealth parliament deserves comment. Neither house has a code of ethics or conduct, and there is no move towards an ethics or integrity commissioner. Each house has a register of interests, and rules requiring members to declare conflicts of interest. Towards the end of the Keating government, both houses debated a proposed code of conduct with ‘a framework of ethical principles’ for members and indeed for ministers, based on ‘an aspirational set of principles or values’. One important source for this initiative was Ted Mack, former independent member for North Sydney, something of an inspiration according to later statements by then Labor leader Mark Latham.14 If accepted, this would have been a rare example of an Australian parliamentary body establishing rules not simply for itself but also for the political executive. No cabinet likes to have to comply with rules from another body, and the incoming Howard government quickly moved to release its own code of ministerial conduct, in part to forestall any move by the parliament to try to go down the path of regulating ministerial conduct. The very thought of the losers regulating the conduct of the winners is at odds with the supposed norms of the Australian responsible government, where the political executive accepts responsibility as regulator-in-chief. In common with developing Australian practice, each house of the Commonwealth parliament has a privileges committee responsible for investigating the professional ethics of members, including the professional standing of relationships between members on parliamentary committees, their witnesses and others named in proceedings. These committees act as the conscience of parliament, articulating case by case the professional ethic that parliament judges itself by.These committees provide valuable case studies of the capacity of parliaments to regulate their own affairs.To judge from the industriousness of the Senate privileges committee, the

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investigation of ethical implications of parliamentary committee activities is a growth industry, particularly in the development of case law, illustrating a distinctive prudential leadership evident in the committee’s management of disagreements between parliament, government and the public over the practical value of various parliamentary processes. An outstanding example is the website of the Senate privileges committee, with its extensive caseload of investigations into disputed conduct by political and administrative officials.15

Benchmarking best practice I have discussed examples of ethics regulation which attempt to balance official responsibility and public accountability.The text of the provisions of codes of conduct often sets the balance at some acceptable compromise among political adversaries. It is rare for government to provide more instructive guidance on the deeper values involved in these many balancing exercises. I now turn to some of the most impressive and enduring policy guidelines that have done so much to define the benchmarks and standards of values supporting official conduct. Since my focus is on arguments within government, my treatment highlights tensions between different sources of government advice. With greater selectivity, one could draw out greater consistency, but this would defeat my purpose of keeping alive internal as well as external arguments over government ethics. The best place to find Australian benchmarks for administrative ethics is still the 1976 Report of the Coombs Royal Commission.16 For our present purposes, there are two main reasons for paying attention again to the Coombs Report: first, it redefined the Australian concept of ‘responsible government’ to include more direct public accountability for officials; and second, it rounded off its redefinition exercise with a prominent argument against codes of conduct, opting instead for a balance of external accountability mechanisms and renewed attention to internal sources of responsibility such as professionalism in public management, including training in the ethics components of public management. The arrangement of the balance follows from the underlying theory of government. The Coombs Commission and its report spent considerable time trying to define the core political concepts of the Australian system of government and to identify the constitutional place and formal

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responsibility of officials. The report’s challenging argument holds that ‘Westminster’ is no longer relevant as the appropriate standard for describing and evaluating Australian political practices. In addition to the obvious existence of federalism and bicameralism, two key reasons adduced are: (1) the truncation of ministerial responsibility through the formal declaration by ministers that they are not liable to be held to account before parliament for all the administrative malpractices and policy failings of their officials;17 and (2) the corresponding development of administrative responsibility with an increased burden of open, public accountability on officials, cemented in place through the various components of the ‘new administrative law’, for example the laws establishing freedom of information, judicial review of administrative decisions, and such accountability agencies as the ombudsman and the Administrative Appeals Tribunal. The report’s path from ministerial irresponsibility to administrative ethics ran as follows. In Coombs’ view, ministers have good and bad reasons for rejecting the traditionally onerous standards of strict ministerial responsibility. The bad reasons are associated with self-interested flight from parliamentary responsibilities. Under the strict view of individual ministerial responsibility, which might appear to be an essential requirement of genuine parliamentary government, ministers are liable before parliament for all administrative actions performed in their name by their anonymous officials. From this perspective, bad faith could account for ministerial non-compliance with their obligations to wear their public responsibilities as chief executives.The good reasons flow from the recognition of the political facts of life, especially those of steadily increasing bureaucratic power, with officials exercising ever wider-ranging administrative discretions; the reluctant recognition that official discretion is not only entrenched but necessary for good government and effective public policy; and the need to supplement ministerial responsibility and oversight with new protections against irresponsible uses of administrative powers. Coombs sensibly looked to the inner checks of ‘responsibility’ before resorting to the external checks of ‘accountability’. Discretion is directed by political processes but is driven by personal values. Almost by definition, discretion is intended to be exercised at the outer limits of the law: procedurally consistent with the law but substantively beyond the

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regulatory capacity of the law. For Coombs, discretion thus understood could be investigated and reviewed – and an account made of its responsibility – but it could not very effectively be codified or regulated. In moving beyond ‘Westminster’, Coombs also trampled on and collapsed that useful fiction the policy/administration divide.18 The report called for policy guidelines on the appropriate practical response of public officials to parliamentary committees – guidelines designed to clarify the existing convention supporting answers to questions on ‘matters of fact’ but not with such irresponsible independence as ‘to express opinions for or against government policy’ or to comment ‘on the merits of a ministerial or government policy’. The Commission conceded that it is proper for some officials sometimes to comment on policy, for instance in the cases of officials either (and it is a big ‘either’) in positions of responsibility in statutory authorities or otherwise established to ‘exercise independently’ their legal authority and provide government ‘with independent and publicly stated advice’ – such as holders of commissioned public offices, ranging from the Australian public service commissioner to the federal police commissioner.19 In defending their regime of ‘accountable management’ for officials, Coombs warned that ‘the tradition of the supremacy of Parliament requires that the lines of that accountability should lead ultimately to Parliament’.20 Discussion of the responsible use of discretion inevitably results in arguments over accountability hierarchies and institutional loyalties.The Coombs examples show that ethics is a political as well as a moral issue. Indeed the most characteristic conflict situation giving rise to ethical dilemmas is that of a conflict of duties as distinct from interests – a conflict of institutional loyalties and obligations, as distinct from conflicts of financial or other corrupt forms of self-interest. If the Coombs report illustrates the best of the external inquiries into ethics in government administration, then the various editions of the Commonwealth’s response to Coombs’ recommendations on ethical conduct illustrate the best of the internal accounts of ethics in government. In 1979 the federal public service commission produced its initial response to Coombs: the Guidelines on Official Conduct of Commonwealth Public Servants.21 The Guidelines have been since revised several times under the responsibility of public service commissioners. The latest version (2003) sensibly and correctly states that public servants ‘are different from other

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employees providing services in the market-place, in that we exercise authority on behalf of the Government and the Parliament, acting for the public. The public rightly expects high performance and standards of personal behaviour.’22 The Guidelines also draw attention to the potential incoherence of the statutory values listed in the Public Service Act. The list of statutory values spans a wide range of ethical values which can compete for the attention of officials (or ministers and their staffs when dealing with officials). The Guidelines argue that contending values need to be held in balance, without opting for any one to the exclusion of others. Judgment (or prudence, as we have described it) is called for, maintaining a balance. No single value should be taken out of context or pushed to the limits. To cite an important example, the value of responsiveness does not ‘permit partisan decisions or decisions that are not impartial’.The Guidelines keep a tight rein on this ethic of responsiveness. For instance, they state that in providing responsive advice, officials should ‘not withhold or gloss over important known facts or “bad news”’.23 This admission comes after the ‘children overboard’ affair and reflects a hardening of public service resolve not to sell itself short or to let slip its public credibility for impartial professionalism.This is a delicate balancing act. On the one hand, the Guidelines admit that public servants work for the government of the day and must fit in with the government’s priorities and agenda; yet on the other hand, this duty to be ‘politically neutral but not naïve’ should not be mistaken by parliament or the public to imply that public servants are nothing but guns for hire, responsive purely to the interests of the serving government.24 The limits of the ethic of responsiveness can be seen, perhaps only dimly, in two aspects of professional administration. First, the Guidelines puncture the old myth about ethics permitting anything that does not break the law.This is an important myth to break because it reinforces the ethic of responsiveness by suggesting that everything a serving government demands is permitted if it is within the limits of the law. When the Guidelines state that ‘ethical behaviour goes beyond the requirements of lawful behaviour’,25 government is making a claim on the professional conscience of government administrators to try to do more than simply not break the law.What more this might be is not altogether clear, except that a test of proper conduct is sustained public confidence in the

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integrity of public service. Thus when the Guidelines warn officials about not seizing on values out of context, they note that the primary requirement is ‘not a requirement for zealotry, but for professionalism’. Presumably zealotry comes in many guises, of which the ethic of responsiveness is but one. Another example in the mind of the authors of the Guidelines is misguided zeal for the public interest. This comes through in the rather cool treatment of whistleblowing.26 The Public Service Act does not so much protect a right to engage in whistleblowing as it protects whistleblowers against retribution when making public interest disclosures. Whistleblowing is legitimate when the complaint is about a breach of the statutory code of conduct provided for in the Public Service Act. Presumably this is another protection against the zealotry of the ethic of responsiveness.The Guidelines do little to talk up any right to whistleblowing, even though the Public Service Act makes the author of the guidelines, the public service commissioner, a primary port of call for officials disclosing breaches of a code of conduct. One of the unsympathetic elements in the relevant chapter of the Guidelines is the warning that, with whistle blowing now protected in law, there is no justification for leaking of information to unauthorised persons like journalists, as this will adversely affect the relationships of trust between ministers and the public service. Governments can breathe easy knowing that ministerial staff are not bound by the public service code or, for that matter, any code, and are therefore beyond the reach of public service whistleblowers. Earlier versions of the Guidelines on official conduct had been bolder, with the mid-1980s version reflecting then public service chief Peter Wilenski’s stamp of disapproval of the traditional ‘Westminster’ ethos of public anonymity and neutrality in values. His rendition of the Guidelines frankly recognised that public employees are part of the political system and that standards of conduct are affected by the political role officials play in managing the public business. Within the first two pages of his version of the Guidelines, one reads that the desired model of ‘a professional and scrupulous public service’ can not be quarantined from political conflicts over public power, especially those disputes between legislative and executive politicians over the accountability obligations of officials, which helps to explain the purpose of the companion Guidelines for Official Witnesses before parliamentary and related inquiries.Accepting the

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potential for disputed ‘ownership’ of the bureaucracy, the Guidelines stated the main responsibilities of officials as the provision of ‘honest and frank’ policy advice – in contrast to advice that is given simply to ‘curry favour’ – and the implementation of government programs ‘conscientiously and with full regard for government policy’.27 Commendably, the Wilenski Guidelines rejected any professional image of neutral instrumentalism: both major responsibilities of policy advice and program implementation require judgment, which itself calls on ‘a public servant’s own values’. This is a public service version of the prudential leadership examined in chapter 3. This enlistment of personal values is legitimate except where those values ‘supplant those implicit in government policy’. These now superseded Guidelines offer quite practical advice on professional ethics even if that term is not used. A section on how agency heads ought to manage policy and value disagreements with ministers helps set a tone of responsible political management, which contains a recognisable professional ethos even where ethics are not explicitly part of the theme. Officials act in ways which are ‘the result of compromise and conflict between different perspectives, interests and values’. Officials ‘are not neutral’ in that they make value judgments; they ought to be only as neutral as is consistent with acting ‘inside Government policy’ – although ‘equity should be a goal and commitment in making those judgments’, whatever the policy of the government of the day.28 The professional character of the public service is particularly evident in two aspects of officials’ responsibilities: their duty of public comment, and their commitment to equity. Their ‘positive duty’ to contribute to public policy debate is restricted to ‘reasoned public discussion’, not so much on the policy merits of proposals as on their ‘factual technical background’. Restrictions do apply, mainly where public comment might undermine ‘public confidence’ in the ‘professionalism and integrity’ of the public service. As for the meaning of ‘professionalism’, the Guidelines note that its nature varies with employment positions, although ‘skill, care, diligence and impartiality’ are its among its ‘common elements’.29 The Wilenski Guidelines culminated in a second theme of the equity commitment, which is the responsibility for ‘fairness in decision-making and equity in program administration’. Fairness here relates to the observance of the rules of natural justice; equity relates to the discretion exercised by

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officials who have a responsibility to try to honour a range of competing objectives – to the policies of the government, to efficiency, to the law, to equity – and on occasion ‘those responsibilities will conflict with one another’. The principle of reconciliation is the obligation to act ‘within Government policy’.30 A conclusion from this review of generations of guidelines is that ethical conduct builds on the law but extends well beyond the explicit provisions of the law.The law provides the legal authority for official action, but responsible use of formal authority benefits from the sort of prudential advice contained in guidelines and related directions from appropriately placed public agencies. Official discretion by ministers, parliamentarians and public servants is a vital element of good government. From the community’s perspective, the issue is whether the pattern of discretionary conduct measures up to standards of public trust.The public really has no alternative but to trust government to get on with its discretionary responsibilities, so long as officials are prepared to take the public into their trust when called on to account for and justify their use of official powers. There are legal, political, financial and of course ethical aspects of discretionary power which affect the quality of judgment exercised by holders of public power. Codes and guidelines have an important part to play in promoting the ethical aspects of official judgment in government; and as we have seen, the codes and guidelines themselves reflect judgments made by appropriately placed officials, responsible for clarifying the responsibilities of officials generally.

Conclusion This chapter has shown how comfortable and ‘at home’ governments can become with ethics regimes, confident that the systems allow those holding political power to manage complaints about the unethical use of the power of government. Two promising developments challenge this easy confidence. First, government is not a seamless web under the control of any one institution, and at times a range of institutions can move to bring greater accountability to bear on government operations. This is classically the case after the discovery and investigation of systemic corruption, as in the two reported cases of New South Wales and Queensland. Second, even accountability agencies can see the value of

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strengthening the responsibility of official discretion so that government agencies can take more rather less responsibility for improving their levels of ethical conduct. A fine example is the contribution of the Australian National Audit Office to ethical responsibility, including its admirably crafted guidelines on public sector governance at the personal as well as the agency level.31 The ‘at home’ mentality is one where governments shut out external accountability yet fail to live up to the promise of more ethically responsible conduct, ruining the reputation of the responsibility model of self-regulation of government ethics and awakening the suspicions of the need for more energetic accountability through vigilant external regulation. The ‘lattice of leadership’ implies that public trust in government is more reliably placed when the various institutions of government share the task of self-regulation, with each relevant institution acting in ways that bring out the greatest public responsibility in those institutions with which they share public power. A balance of public accountability and official responsibility is ideal, with the instruments of external accountability serving the policy purpose of strengthening, as distinct from straitjacketing, responsible discretion by officials. Not that jolts of accountability are out of place. Things can change quickly in regimes of ethics in government, particularly when other branches of national government rewrite the rules. Parliament contains many accountability agencies capable of rewriting many of the ‘terms of trust’ contained in the conventions and norms of responsible government. But the courts can be even more formidable players. I have mentioned the role of the courts in processing some of the political disagreement over the Howard government’s handling of the ‘children overboard’ affair. Those were highly publicised cases where the Federal Court became an arena for disputing the integrity of government conduct and its policy authority. But there can be equally powerful rewriting performed off centre stage by courts when dealing with routine complaints of individuals against government employers. One such incident surfaced late in 2003 in the Bennett case, when the Federal Court ruled on a complaint by an employee of the Australian Customs Service against two government agencies, Customs itself and the Human Rights and Equal Opportunity Commission, which has responded to Bennett’s request to review his

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treatment.32 Mr Bennett, as representative of an employees’ professional association, had made public comments in the media about customs (small-c) policy and administration.The details matter less than the general complaint, which was that the employer failed to respect the employee’s right to public comment by disciplining him for breach of a longstanding public service regulation (originally Reg 7.13, now Reg 2.1) prohibiting unauthorised disclosure of official information. The Federal Court rather undercut the employers’ case by ruling the relevant regulation invalid because it contravened the fundamental constitutional right of free political communication recognised by the High Court over the last decade.The holding was narrower than this description suggests. Employees might still have public service obligations to refrain from public comment, but not on the traditional principle of unconditional non-disclosure enshrined in the regulation.This offensive rule was a perfect example of ‘trust me’ regulation of official conduct, because the rights and responsibilities of officials were determined deep within government, with ultimate power resting with agency heads to use their discretion to restrict the scope of public-interest considerations and to widen the scope of government confidentiality. This Federal Court intervention in government administration is a nice example to end on because it shows an accountability agency going out of its way to restructure internal government negotiations over responsible ethical conduct.The court took away the government’s own big stick of accountability by ruling the relevant regulation invalid. ‘The dimensions of control it imposes impedes quite unreasonably the possible flow of information to the community – information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public’s knowledge and understanding of the operations, practices and policies of executive government’ (para. 99). But instead of superimposing its own version of accountable conduct, the court remitted the case back to the parties to rethink the rights and wrongs of regulating public comment by government officials. The old regulation was invalid because it provided no public-interest justification for restraints on public comment. The challenge for government was to devise a scheme of regulation that acknowledged the possibility of public-interest grounds for officials acting on their own responsibility when making public comment. The issue was back within government to try

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to devise a sounder model of self-regulation that could meet the court’s public-interest test of permissible public comment.This is a good example of an accountability agency improving ethics in government by strengthening the capacity of government to regulate its own ethical responsibilities.33

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Chapter 7

N AT I O N A L S E C U R I TY A N D G OV E R N M E N T At War with Ethics

Can governments manage public affairs ethically in times of war? Given the endurance of the ‘war on terror’, we should hope that democratic governments can retain their interest in ethical domestic government.This chapter’s subtitle title conveys my reservations. The phrase ‘at war with ethics’ looks back to my theme of the resistance governments have to ethical schemes managed by external regulators. Heads of government understand that government ethics can be politically controversial and so they generally place control in the hands of relevant politicians: ministers and especially the chief minister.The phrase also looks forward to an extension of the ‘terms of trust’ to include the use of ethics to justify war. International warfare proceeds on assumptions about friends and foes, but there are also occasions during peacetime when governments apply similar assumptions to the ethical obligations of public officials.The friends of government are those who comply with the government understanding of appropriate conduct, and the foes are those who harm government through their misguided sense of higher loyalties – to their professional ethic, or to their ethic of office or role, or to their sense of the public interest, or simply to their conscience. But friends as well as foes can be misguided, just as friends as well as foes can let self-interest get in the way of the public interest. This chapter begins my departure from predominantly Australian preoccupations, in the hope of finding a wider perspective on issues of ethics and integrity in democracy.This search carries through to the next chapter with its focus on personal integrity in democratic government.These two chapters are linked in that they put ethics regimes to the test of dealing with what often appear to be fundamental issues of good and evil. In this

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chapter, the test is of integrity in political decision-making over right and wrong in international war. In the concluding chapter the test is of integrity in individual decision-making over good and bad in public life.

Issues over Iraq It does not take much to set suspicions running about lapses in government ethics. Consider the example of the so-called ‘gang of 43’, those former national security officials (including former defence chief General Peter Gration) whose open letter of August 2004 provided the inspiration for Mike Scrafton’s public correction of Prime Minister Howard a week later (see chapter 5).1 The letter defended the proposition that ‘truth in government’ was a fundamental principle of ‘effective parliamentary government’. This identification of the role of parliament is instructive, because the authors’ view about the ethical obligations of those they term ‘our leaders’ derives from their wider parliamentary responsibilities in contrast to their narrower executive roles.The underlying idea is this: systems of parliamentary government hold out the promise of sustained parliamentary scrutiny of those exercising the executive powers of government, conditional on a commitment by those in government to deal honestly with their parliamentary scrutineers, who in turn are expected to deal honestly with the electors they claim to represent. The authors asserted that the decision to invade Iraq involved ‘the deception of the Australian people’. Experienced experts in international politics, the authors argued that ‘to mislead the Australian people’ is not only ‘wrong’ as a matter of public ethics but also ‘dangerous’ as a matter of public policy. Paul Kelly termed this their ‘bedrock realism’, which is not out of place in any scheme of public ethics.2 Actions have consequences and bad actions can have bad consequences.As the authors concluded their letter: ‘If we cannot trust the word of our Government, Australia cannot expect it to be trusted by others.Without that trust, the democratic structure of our society will be undermined and with it our standing and influence in the world.’ Opinion polls at this time suggested that 74 per cent thought they were misled by Prime Minister Howard over the real reasons for going to war. But 47 per cent excused the Prime Minister on the ground that he in turn was misled by others.3 Perhaps this refers to the misleading influence of the Bush administration; it is certainly hard to reconcile with the widespread view that the 2001 election witnessed a govern-

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ment willingly resisting being led by fresh intelligence on the ‘children overboard’ affair – just weeks after the beginning of the ‘war on terror’. Government party members heaped scorn on the letter from the fortythree, who were described as ‘doddering daiquiri diplomats’ by one National MP.The ethical character of this dismissive response seemed to say a lot about the openness of the Howard government to professional advice and a lot more generally about the ethical state of institutional relationships between the governing party and public service professionals. Decisions over international war raise many of the most important questions about the place of ethics in government, bringing Australia into the larger sweep of international politics with debate over the responsibilities and accountabilities of ethical leadership on the international stage. Surprisingly perhaps, these momentous national decisions over international war and peace also provoke the most agonising and deeply personal decisions by individuals over government ethics and integrity. An example can illustrate Australia’s growing international significance impacting on deeply personal issues of ethics in government. Australia shares with Britain and the United States primary international responsibility for the prosecution of the 2003 Iraq war, taken in defiance of United Nations resolve to wait until various international weapons inspection processes had run their course.The allied nations feared that Iraq had no intention of ever complying with a succession of UN disarmament resolutions specifically directed against Iraq.Their view was that the time for waiting was over. The pretext for the war against Iraq was clearly stated by the leaders of these three governments as a pre-emptive strike against Iraq for threats it posed to the international order arising from its accumulation of weapons of mass destruction. A history of UN Resolutions against Iraq for noncompliance with the international regime of arms inspection convinced the ‘coalition of the willing’ that right was on their side of armed intervention. One stated fear was that Iraq could initiate its own attack in forty-five minutes, using its arsenal of weapons of mass destruction. No such weapons have yet been found or seem likely to be found. Even the leading international weapons experts have now admitted that the international intelligence about the weapons threat was wrong.The most persuasive such evidence has come from Dr David Kay, retiring head of the Iraq Survey Group, in evidence to the US Congress when he admitted that, in effect, ‘we were all wrong’ about the extent of Iraqi arms.4

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Soon the ‘pre-emptive strike’ justification moved into a ‘retributive strike’ justification, claiming the support of earlier UN Resolutions in the absence of Security Council authority for armed intervention. Each government has later used ‘regime change’ as the post-facto justification for the war, based on the undeniable record of tyranny of the Iraqi regime under Saddam Hussein. Each leader of government has experienced considerable loss of public confidence because of their inability to convince even close supporters about the real motives for war. But the three leaders lack credibility when they insist that the publicly stated reasons for the war were the real reasons influencing them to obtain public support for use of their constitutional authority to commit their nations to war against Iraq. In ways that are largely unprecedented, each of the three heads of government sought formal public authority through their respective political assemblies for their decision to go to war. Bush and Blair were successful, at least at the time of their own choosing to wage war. If one test of leadership is the ability to take your followers with you, then these two heads of government won the leadership battle in the build-up to the military battle. But the Howard government failed to secure Senate approval, despite its easy command of a majority in the House of Representatives.The Howard government did not have the support of the Labor opposition or of the other minor parties, and so found itself in the unprecedented position of living with a Senate resolution condemning Australian participation in the war. The government and the official opposition argued mainly about the evidence relating to UN authority, the government relying on earlier UN resolutions and the opposition arguing that military intervention lacked legitimacy in the absence of a fresh UN resolution. At the urging of the Australian Democrats and the Greens, the Senate resolution called on the government to recall all Australian troops immediately. Just one year later in March 2004, the Senate passed another resolution defeating a Greens proposal that Australian forces be withdrawn immediately and supporting a Labor proposal that Australian forces ‘be withdrawn … as soon as practicable’ – a position compatible, but not identical with, that later adopted by Opposition Leader Mark Latham.5 Leaders of government in the United States, the United Kingdom and Australia became embroiled in political battles over their public legitimacy. In the immediate wake of the speedy military victories, each leader has faced mounting political pressure to explain the reasons for public misin-

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formation (or was it disinformation?) about the Iraqi threat. If American, British and Australian publics were misinformed, does responsibility rest with the heads of government for acting on unverified advice or does it rest with the intelligence advisors who provided the unverified advice? The three leaders claim that they ‘called it as they saw it’: they might have been mistaken but they did not intentionally mislead their publics.Their defence is that this is a case of acting on the best available evidence at the time, and not a case of political deceit or public deception. Political opponents of Bush, Blair and Howard, however, claim that many in the intelligence communities knew that the policy pretext for war had no factual foundation and, further, that such unwelcome intelligence was given to the heads of government. This is where things get murky.Think of the ethical issues in terms of three questions.The critics might be wrong, but if not, did the three heads of government take responsibility for ignoring unwelcome advice because of their precommitment to the war option? The critics might have it all wrong, but if not, did the three heads of government take responsibility to mislead their publics about the available intelligence justifying war? Again, the critics might be wrong, but if not, what obligations of public accountability are appropriate to each national leader to get them to reveal the truth about the inner workings of warfare? These are weighty ethical issues. Prime Minister Blair promised to resign if found by the Hutton inquiry to have lied in his public statements about relying on professional intelligence advice.6 Judgment about the merits of the leaders’ actions clearly requires more information, particularly information from within government, and the political process in each country now includes various public inquiries into who precisely within government is responsible for what aspects of the decisions leading up to the war. Can the heads of governments show that their critics are indeed wrong? This is developing into a classic test of trust, with each leader making studied appeals to the ‘terms of trust’ to maintain public confidence in the face of widespread political opposition. Prime Minister Blair faced the most searching public investigation in the Hutton inquiry, established to examine the suicide of weapons expert Dr David Kelly, where the prime minister put his fate in the hands of Judge Hutton before whom he gave evidence in person at considerable political risk. The January 2004 report of the Hutton inquiry cleared Blair and his government of responsibility for

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the death of Dr Kelly, who had given information to the BBC calling into question government claims about pro-war intelligence advice. Hutton also cleared Blair of any responsibility for ‘sexing up’ or ‘over-egging’ the intelligence used to support the government’s case for war.7 Inevitably, doubts persist about the integrity of the British and allied decision-making process. In response to Hutton, former British advisers have repeated their claims that intelligence professionals warned the Blair government about defects and limitations in the government’s preferred version of the reasons for war. Debates will continue about the ethics and integrity of the policy process in each of the allied nations, as they should also in relation to the United Nations processes of weapons inspection and international conciliation of conflict.

The Ponting affair At this stage, one valuable move is to turn the clock back and tease out lessons from earlier incidents of ethical debate over decisions about war and peace.To my mind, the most pertinent incident is the 1982 decision by the Thatcher government to engage in armed intervention to secure the Falkland Islands from threatened invasion by Argentine forces.This incident provoked a crisis of conscience within British government about the use and abuse of professional intelligence by the Thatcher government. This case is often known as ‘the Ponting affair’ after the public servant at the centre of the storm of controversy, Clive Ponting, whose decision to refuse to comply with the government line called into question not simply the integrity of government decision-making but also the integrity of the British system of public service ethics.8 This 1980s case lives on: for instance, in February 2004, the British government decided to abandon the prosecution under the Official Secrets Act of Katherine Gun, a former public servant who passed to the media top-secret materials about allied interceptions of telephone traffic of UN Security Council delegates. The government apparently feared that they would trigger ‘another Ponting case’, referring to the failed 1985 prosecution of Ponting for national security breaches. Gun might well have broken the law in passing secret material to the media, hoping to blow the whistle on arguably illegal actions contravening UN agreements. But Ponting too broke the law, only to be exonerated by a jury. Gun might also have brought the government into the public spotlight, just as Ponting did, with the defence bringing unwelcome

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public accountability to a government increasingly reluctant to have its dirty linen washed so publicly. Thus the consequences of Ponting’s jury acquittal continue to haunt British government, which senses that the courts will not be easily persuaded of the merits of conduct revealed by whistleblowers like Gun – and Ponting before her.

T h e Po n t i n g p r i n c i p l e What should public officials do in a crisis of conscience over government action? The Australian decision to commit troops to the Iraq War was preceded by an unusually prominent instance of resignation in protest, when Andrew Wilkie, a former Army officer then employed in the Office of National Assessments (ONA), resigned with considerable publicity to make a personal stand against the imminent war. The ONA is a specialist office within the Department of Prime Minister and Cabinet, responsible for advising the prime minister on international security matters. Its job is to bring together defence and international intelligence from across the Commonwealth government, which the ONA then sifts and consolidates. The ONA is meant to be a policy shop above the immediate fray of those larger agencies like Defence which participate in the delivery of international programs.The ONA featured in the 2001 ‘children overboard’ affair, when Prime Minister Howard justified his estimate of threats posed by asylum-seekers by reference to confidential ONA advice. Trouble was, as we saw earlier in this book, the ONA advice at that time was based on little more than press clippings of what the prime minister had already claimed.9 The 2001 incident probably tells us more about politicians than bureaucrats. The ONA is generally highly regarded for its impartiality, as Howard wanted voters to know. Advance the clock to 2003, and this time it is a disgruntled ONA official who wants the public to know that this impartial agency knows nothing to justify the government’s warlike partiality. According to his own accounts, Wilkie did his utmost beforehand to convince colleagues within the ONA that the Howard government was making bad public policy when claiming intelligence support for its prowar stance. Implying that the public was being misled by the Howard government’s claims of ‘secret intelligence’ of links between Iraq and terrorist threats,Wilkie also implied that many others in government shared his view of the government’s deceptiveness, if not his ethical conviction to resign.

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The March 2004 report of the intelligence committee of the Australian parliament supported the general criticism that Australian government intelligence was less persuasive than claimed by the Howard government. The report of 1 March 2004 of the parliamentary committee on the three intelligence agencies (known from their acronyms as ASIO, ASIS and DSD), entitled Inquiry into Intelligence on Iraq’s Weapons of Mass Destruction, came within weeks of parliamentary debate over ‘the Lewincamp affair’ relating to press reports of off-the-record comments by the head of the Defence Intelligence Organisation (DIO) to the effect that Australian intelligence professionals were reluctant to support the government’s case for war against Iraq.10 The parliamentary committee’s report called for a fresh inquiry into the possibility that the government’s case for war was unsupported by the best available international intelligence, and into the possibility that Australian intelligence agencies were unduly swayed by the shortterm information needs of the Howard government.The theme of the parliamentary report is captured by Paul Kelly (The Australian, 2 March 2004): ‘The war was not, repeat not, driven by intelligence.’ And the next day, Kelly’s own judgment about the integrity of the public case for war: ‘The point, of course, is that the public was misled’ (The Australian, 3 March 2004). In March 2004, The Howard government established the Flood inquiry and later in July released a public version of Flood’s report, which was surprisingly critical of the lack of integrity in pre-war intelligence, described as ‘thin, ambiguous and incomplete’. But Flood found no evidence of political manipulation of intelligence or of intelligence agencies.11 Looking back, the big issues relate to the ethical responsibility of the Howard government in justifying to parliament the decisions for the Iraq war by explicit reference to professional and impartial intelligence advice, and to the ethical responsibility of government intelligence professionals in providing advice congenial to the interests of the government of the day and in refusing to modify, contest, correct or qualify the claims for intelligence excellence made by that government. The parliamentary report has less to say about individuals like Wilkie than about top officials heading the intelligence agencies. But Wilkie represents the case of a public servant with a conscientious disagreement over government policy, convinced that integrity requires resignation, including his public resignation from all responsibility for the government’s action. At the time, it was argued in the Canberra Times editorial of 13 March 2003 that Wilkie ‘represents the tip of

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an iceberg’. The pathology of such icebergs is nowhere better illustrated than in the 1980s UK Ponting case, also about a principled protestor. Ponting was a UK Defence public servant who fell out with his department and minister. I use the term ‘the Ponting principle’ to refer to what international scholarship now sees as a new ‘conception of civic responsibility’ acknowledging that ‘the democratic constitutional state itself … sets limits to what you can demand of functionaries’. Or to put the Ponting principle more bluntly: ‘Loyalty to one’s superiors is only provisional, loyalty to the public interest and to the democratic process are the ultimate obligations of functionaries.’12 The Ponting principle holds that public servants have, over and above their duties of fidelity to their employer, obligations of public accountability arising from their public role or public office. But accountable to whom and for what – to every accountability agency claiming to protect the public interest? Ponting’s own answer was that parliament was in a class of its own among accountability agencies and that public servants, as a matter of constitutional principle, had obligations not to mislead parliament or the public. The Ponting principle does not go as far as many critics of deceptive government might want; for instance, it falls short of holding that public servants have obligations to provide parliament or the public with ‘the truth’.The principle as it emerges from Ponting’s own practice is more procedural than substantive: the principle does not hold that executive officials must provide parliament and the public with the truth about the inner substance of government, but instead that they must not deceive or mislead when responding to parliamentary inquiries. The core claim is that public trust in government demands an ethic of honesty of officials, even if this falls short of a higher and more demanding ethic of total disclosure. The duty involves an ethic of answerability: literally, an ability to give accurate answers to questions from parliament. To the relief of many in government, this ethic is about avoiding the vice of misleading disclosure, as distinct from complying with the virtue of total disclosure.The Ponting principle as it emerged from the Ponting affair broke the mould of traditional Westminster norms about the public service being not only impartial but also impersonal, anonymous and neutral – seen and heard by ministers but only accountable to the public through their ministers, who alone exercise public authority and who alone face burdens of public accountability, according to the rituals of ministerial responsibility to

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parliament. This case study involves the clash of two versions of a public service ethic. First, the traditional one about public servants as neutral instruments of ministerial will; and second, a contemporary one about public servants as office-holders with obligations to account publicly for their performance in government. It is important to emphasise that Clive Ponting was no fussy public service traditionalist defending some fading romantic image of a lost age, as might be supposed by ardent managerialists fearful of this and most other cases of whistleblowing. Ponting was one of the original generation of managerialists, and an early advocate of ‘new public management’ (NPM), to use the appropriate UK term.13 Ponting was an enthusiast for the NPM model of public service. As a public servant opposed to what he called the traditional ‘good chaps’ model of public service, Ponting welcomed Thatcher’s reforms to grant greater influence to political appointees, in part because he saw through the myth of the public service as impartial and politically neutral. Ponting’s subsequent clash with the Thatcher government was caused more by his frustration that many in the government machine were falling away from the reform agenda of management improvement and were becoming increasingly secretive and defensive about the public management ideals of open and responsive government. Ponting represents the energetic conscience of the reformer, not the tired reaction of a traditionalist struggling against reform.

International conflict The Falklands Islands in the South Atlantic were, at the time of the crisis of 1982, administered by Great Britain through a governor, and their population of fewer than 2000 protected by a platoon of Royal Marines. The Falklands had been a British Crown colony since 1840, and before that ownership had been contested by Spain and France, each aware of the Islands’ strategic location on the Pacific trade routes. Disputes with Argentina over the sovereignty of the Falklands can be traced back to the post-colonial origins of Argentina in 1816. Argentina claimed that Spain had ceded control of the Islands – known to them as the Malvinas – to the new nation; Britain claimed that Spain had no legitimate right to make any grant in the first place. For most of the time of Britain’s control, the local population supported British rule and Argentina raised only infrequent international protest.

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On 2 April 1982 Argentine forces invaded the Falkland Islands, only to surrender to British forces some ten weeks later on 14 June. On 3 April the United Nations passed a resolution calling on Argentina immediately to withdraw from the Falklands. The Labour opposition in the House of Commons generally supported the early response of the Thatcher government to the crisis. Britain took comfort from Article 51 of the UN Charter which acknowledges the ‘inherent right of individual or collective selfdefence if an armed attack occurs’. The effect of this UN umbrella of authority was to confine British military actions to those of a ‘self-defence’ nature, valid as such in international law. Under Article 51, all self-defence activities and technical ‘Rules of Engagement’ had to be transmitted to the UN Security Council. On 7 April, Britain declared a maritime exclusion zone (subsequently upgraded to a total exclusion zone on 28 April) of 200 nautical miles around the Islands, operative from 12 April. On 23 April Britain reissued a public warning to any Argentine shipping found within this declared selfdefence zone – a warning later relied on by British authorities when justifying the response to the discovery of the General Belgrano.14 The question at issue was whether at the time of the attack the Belgrano was actually, as British authorities claimed, within the declared exclusion zone heading towards the Falklands, or whether, as others suspected, out of the zone returning to Argentina. Ponting’s version was that the Belgrano was steaming ‘quietly to the south-east keeping well outside the Exclusion Zone’.15 As revealed in a minute to the Prime Minister from the newly appointed foreign secretary, Francis Pym, cabinet decided on 1 May ‘to authorise an attack without warning on the Argentine carrier outside our exclusion zone’. In Pym’s private view to the Prime Minister,‘our position would be immeasurably strengthened if we had given a warning to the Argentine Government’.16 According to Ponting, subsequent British declarations to the House of Commons and the UN on 7 and 8 May were post-facto attempts to correct the situation and justify in international law previously undeclared alterations to the ‘Rules of Engagement’ made earlier in May. Early on 2 May, British naval commanders apparently repeated earlier requests for formal changes to the ‘Rules of Engagement’ which would permit them to attack any naval vessel, and not just the carrier which cabinet originally had in mind, outside the exclusion zone. That request was agreed to by the war cabinet, and the Royal Navy submarines set to work

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to strike at the Belgrano, which maintained its place outside the zone of war, unaware of the recent but undeclared British decision to amend the ‘Rules of Engagement’ to permit strikes at Argentine ships wherever encountered. On 2 May 1982, British naval forces sank the Belgrano, with the loss of Argentinian life estimated at over 360 dead – ‘the most costly single engagement of the war’.17 This episode marked the beginning of the war in earnest; on 5 May, for example, the British destroyer Sheffield was sunk in retaliation. Also sunk was any hope for success of a peace plan being marshalled by Peru. Defence Minister Heseltine was later to claim that the opposition distrust of the government’s explanation of the attack on the Belgrano was part of a ‘campaign that the Belgrano was attacked in order to destroy the prospects for peace negotiations’.18 In the wake of the Belgrano attack, British opposition to the government’s military policy began to increase substantially. For example, Labour MP Tam Dalyell accepted his forced resignation as opposition spokesman on science as a result of his outspoken criticism of British military policies in the South Atlantic. The Belgrano sinking certainly had political costs for Britain:‘the main diplomatic cost of the Belgrano incident … [was] the loss of international political support for Britain’s case.The victim was just outside the 200-mile exclusion zone … Such a dramatic transformation of the crisis led to accusations of unwarranted escalation.’ Historians now accept that the attack and sinking ‘weakened Britain’s international standing’.19

B u re a u c ra t i c c o n f l i c t Clive Ponting was employed as a civilian public servant in the lower ranks of the senior executive service in the Ministry of Defence, managing aspects of naval operations. As is revealed in his three books on Whitehall, he was becoming increasingly critical of the traditional ‘amateur elite’ which ran the civil service – in his view, incompetently, while ‘concealed behind a veil of secrecy and misinformation’.20 Ponting had come to some prominence in 1979 when seconded from the Ministry of Defence to work with Sir Derek Rayner’s ‘Efficiency Unit’, established by government to streamline government management. Ponting’s management reviews of Defence administration eventually brought him to the attention of the Prime Minister, Mrs Thatcher, who at one very supportive point arranged for Ponting to address a full meeting of cabinet on Defence inefficiencies.21

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Ponting had only a minor role during the early phase of the government’s justification of the Belgrano sinking, but by 1984 he had become the officer responsible for investigating on behalf of Defence ministers the whole story of the parliamentary treatment of the government’s awkward justifications of the event.The new Defence Minister, Michael Heseltine, was apparently keen to end the parliamentary squabbling over an event with which he had not been personally or politically involved. After exhaustive examination, Ponting became convinced of the existence of a cover-up in response to mounting opposition attack. Heseltine seemed to Ponting inclined to break with the past, regardless of the vested interests in concealment by others in the department and by ambitious junior ministers. According to Ponting, Heseltine had agreed at the beginning of April 1984 on a new policy of greater openness. In this spirit, Ponting had drafted a set of new answers to parliamentary questions from the opposition, based on unclassified information. For whatever reason, his draft answers were not used by the minister, who stated in reply that there was nothing further that he ‘could usefully add’ to that already on the public record. Ponting saw this as a ‘highly misleading’ answer: ‘I had never come across anything so blatant in my fifteen years in the Civil Service. It was a deliberate attempt to conceal information which would reveal that Ministers had gravely misled Parliament for the previous two years.’22 The crucial policy change in Ponting’s view was that from withholding information to that of deliberately misleading parliament – feigning national security as an excuse for not revealing politically embarrassing information.Although Minister Heseltine refused to give any reason to parliament for his non-disclosure, Ponting noted that the undeclared rationale was that of national security, even if the basic motive was more akin to that of a cover-up of past errors or misleading statements.The bureaucratic issue for Ponting was not that of the ministerial decision to amend or reject his draft, but the role of the bureaucracy in supporting the ministerial decision ‘to continue to mislead parliament’.The department had sided with ministers; Ponting decided to assist the weaker forces of parliament. He sent Dalyell an anonymous note encouraging him to continue, pointing out that the desired information was not confidential and that by pressing his case he would eventually succeed. Dalyell persisted, and Ponting was again asked to prepare ministerial advice.

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Ponting soon found himself unable to be a party to the new focus on national security as the prime reason for non-disclosure. He wrote a minute to Heseltine through the departmental chiefs arguing for full disclosure, partly as ‘a clear signal … that I was not prepared to carry out the Ministerial instructions’. Perhaps not surprisingly, Ponting received no bureaucratic support or intervention as the minute went on its way to Heseltine. Meanwhile Dalyell campaigned on, even lecturing Heseltine that ‘I have regard for the industry and integrity of Ministry of Defence officials … [who] regard answering serious questions from MPs … as part of their day-to-day job’.23 At the same time, the House of Commons foreign affairs committee was formally seeking information about the changes in the ‘Rules of Engagement’. The committee’s request found its way to one of Ponting’s colleagues, a divisional head in an allied area.This divisional head prepared a minute to the effect that government departments should maintain the line already given by ministers in earlier responses to Parliament. This important minute provoked Ponting into wondering what he could do now that he had twice unsuccessfully protested to ministerial and bureaucratic officials about the ministry’s commitment to the policy of misleading parliament.To Ponting, this minute represented the ethic of group solidarity in triumph over the ethic of public accountability. As Ponting records his dilemma: ‘All my instincts after fifteen years in the Civil Service told me that my loyalty was to Ministers and the department. But then I realised that Ministers had broken their side of the bargain in attempting to evade their responsibilities to Parliament.’ ‘It never occurred to me to send the papers to the newspapers.This was a matter for Parliament.’24 Ponting’s justification for sending official material to parliament combined respect for the high principle of parliamentary accountability with the lower principle of rewarding opposition ‘lone wolf ’ Tam Dalyell. Ponting’s own account records his belief that in sending the material to Dalyell he was sure that it would then be adequately appreciated and used by the committee, and that Dalyell was the preferred recipient because of his likely influence over the committee. Ponting attempted to draw on precedents learned from the experience of Leslie Chapman’s (well known as the author of Your Disobedient Servant) lonely war on bureaucratic waste, when one government commercial agency actively defied the House of Commons public accounts committee, only to be advised by Treasury that junior public servants would not be in breach of the Official Secrets Act if

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they helped parliament to correct the record.The Treasury advice was that corrective evidence submitted to a House committee would be treated as a ‘proceeding in Parliament’ and therefore be protected by parliamentary privilege. Presuming that Dalyell was as good as a committee chairman, Ponting sent him copies of his latest Defence minutes, which included his advice to his superiors on the correct substance as well as the due process of parliamentary answers.

S t a t e i n t e re s t s a n d o f fi c i a l d u t i e s Under the then existing provisions of the British Official Secrets Act, it was an offence to communicate without authority any official information to any person – a provision which if enforced would have effectively closed down most public agencies.The Act permitted two general types of defence against illegal communication of official information.The first was based on the status of the communicator as an ‘authorised person’. The second was based on the status of the recipient as a representative of ‘the interests of the State’ who was owed duties by the communicating official.This second category of defence legitimated the communication by a civil servant of official information to ‘a person to whom it is in the interests of the State his duty to communicate it’ (under section 2(1)(b)). In August 1984 Ponting was charged under section 2(1)(a) of the Official Secrets Act with communicating official information to an unauthorised person, Tam Dalyell, the opposition backbench member of the House of Commons foreign affairs committee.The prosecution did not allege that Ponting had communicated ‘secret’ information, merely ‘official’ information. Shortly after this hearing, Ponting stated his case with characteristic firmness. ‘My conscience is clear. In my view, a Civil Servant must ultimately place his loyalty to parliament and the public interest above his obligation to the interests of the Government of the day.’25 The jury trial began on 28 January 1985. At the prosecution’s request, parts of the proceedings were held in camera in order to examine disputes over the content and place of British intelligence in decisions affecting the sinking of the Belgrano and its subsequent public justification. Of the two possible defences available to Ponting, all sides agreed that the only possibility was the second one, as the initial defence of ‘authorised’ disclosure was invalidated by the defence’s admission that Ponting had no official authority to act as he had done.The more ambitious second defence at least

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required the prosecution to carry the burden of proof and to disprove that a parliamentarian was a relevant person to whom Ponting had a duty to communicate the information. On 11 February, after ten days of trial, the jury retired to make its decision, and reached its ‘Not Guilty’ verdict over the time of a lunch break.As has been said, the thrust of the jury’s decision was not so much to exonerate Ponting as to establish ‘that ministers were equally at fault’.26 Ponting was acquitted, and within a week he had resigned from the civil service. The three trial presentations of the prosecution, the defence and the judge’s final summing up stand as exemplary statements of the competing ethical perspectives. The tone of each of these presentations is best given through selective quotations illustrating the basic clash of administrative and constitutional principles. The judge tended to side with the view of the prosecution on the key issue of the loyalty owed by public servants to the government of the day. His rather strained emphasis on the requirements for official secrecy and government trust might well have forced the jury to adopt a renewed appreciation of the wider public trust required of officials, including parliamentarians as well as career civil servants. The prosecution case: government interests

In the prosecution’s view, the issue was whether the recipient of the government information distributed by Ponting was a person referred to in the Act as one ‘to whom it is in the interests of the State that Ponting communicate the information’.27 The prosecution argued that the key phrase ‘interest of the State’ could only ‘mean the interests of the State according to the policies laid down for it by the recognised organs of Government and authority … as they are, not as they ought to be. In other words, it does not mean some all embracing public interest’ (emphasis added). In this view, interests of the state essentially mean the interests of the government of the day, as expressed in public policies lawfully determined by ministers and faithfully implemented, always of course within the limits of the law, by the public service. The prosecution drew a distinction between the wider political interests and the narrower administrative interests of the state, the former being the legitimate province of ministers and the latter being the appropriate province of the civil service, as instructed and led by the relevant portfolio minister. The ‘wider interests of the state’ require complete confidentiality

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of official information, in order to build that degree of trust between ministers and officials which all governments have a right to expect in the public management of their processes of policymaking. But public servants have an equally onerous duty to observe the administrative requirements of the other, lesser but equally legitimate sphere of public (or at least government) policy.This refers to the ‘narrower interests of the State, as reflected by the policy of the Head of Mr Ponting’s department.That is the Secretary of State [Mr Heseltine who held that] … there was to be no disclosure … [and] Mr Ponting knew full well that in leaking the documents he did he was in breach of the clear policy – the clear decision – of his ministers.’ Although public servants do ‘play a part in the policy making process by providing advice’ to ministers on public policies, responsibility for decisions – on what advice to use, how and when and in what circumstances – rests with ministers. In this case, the prosecution alleged that Minister Heseltine and other government ministers had carefully and deliberately decided not to reveal to parliament the full details surrounding the sinking of the Belgrano on grounds of national security – grounds purportedly established as reasonable on the basis of evidence brought before the jury during the in-camera sessions. The prosecution concluded by suggesting that Ponting’s own actions made more sense as examples of partisan political activity than as principled supports for parliamentary accountability. After all, he had sent the partial information not to the committee chairman but to a controversial and prominent antigovernment campaigner, who merely happened to be a member of the relevant House of Commons committee. The defence case: public interests

In the defence’s view, the fact that the onus of proof lay on the prosecution to make their case that Mr Dalyell was not such a person as was covered by the Act reinforced the vitality of the wider public interests officially expected of public servants. The Act recognised that there would be exceptional circumstances in which public servants would have a duty to communicate official information to persons not expressly authorised by government. Ponting’s lawyers gave as examples of public interest communications those leakages of official information relating to British military unpreparedness given by public officials to Winston Churchill when simply a backbench member of the House of Commons in the 1930s. During

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much of the 1930s, the head of the British Government’s Industrial Intelligence Centre, Desmond Morton, provided Churchill with government information indicating the truth about Britain’s parlous military condition, a matter which the government of the day refused to acknowledge. If the Act contemplated such circumstances, then it was the task of the prosecution to disprove Mr Dalyell’s right to receive Ponting’s information in the current circumstances. As to the meaning of the difficult phrase about the interests of the state, the defence argued that parliament ‘is one of the supreme organs of government’ – indeed, parliament is properly identified as ‘the principal organ of government’. Parliament is so fundamentally part of the foundations of the British polity or regime that policies of all governments must be implemented through strict observation of ‘the principles and spirit of Parliamentary democracy … [and] the established constitutional rules and conventions’. Among the sources of public policy legitimacy was that ‘absolute prerequisite’ of ‘telling the truth to Parliament’. As to the bureaucratic loyalties of public servants, the defence argued that as servants of the crown (as distinct from servants of the government or ministers of the day) civil servants ‘owe their duty … to the Queen in Parliament’. For Ponting, this meant that in the event of a crisis of obligation between conflicting demands of ministers and parliamentarians, he must honour his higher loyalty to parliament. And why did he not do this by sending the material to the head of the relevant committee, rather than to a vocal opposition critic of government policy? According to the defence, Ponting thought it prudent to send the material to ‘a specialist and also an expert’ in Defence matters, whereas the committee chairman was, in Ponting’s view, not in a situation fully to appreciate the significance of the information.28 The judge’s summing up: official, not moral, duties

Mr Justice McCowan’s summing up agreed that the prosecution had to prove that Mr Dalyell was not a person to whom Ponting had a duty ‘in the interests of the State’ to communicate.29 McCowan argued that in this important phrase the word ‘interests’ meant ‘policies of the day’ and not needs or requirements as seen by anyone outside the government of the day. He contended: ‘The policies of the State mean the policies laid down for it by its recognised organs of government and authority.’

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But does this not include Parliament as one of the ‘recognised organs of government’? No, because the elected government of the day acts on the authority of the House of Commons for as long as it has the confidence of that House: the government’s policies ‘are for the time being the policies of the state’. The state is what the government states it to be. Public servants no doubt from time to time ‘think themselves infinitely more intelligent and wiser than their Ministers. They may be, but that is not the point.’ Ponting found himself in a position where he could not give conscientious support to government policy, yet the Act did not make allowances for an official’s state of mind or principled intention – although good intentions might be one of the mitigating factors affecting sentencing. Ponting’s duty under the Act referred to his official duties as an official in the Ministry of Defence – that is, his duties ‘imposed on him by his office’ – and not any unofficial or ‘moral duty’.The place of conscience in official life is properly located in the official’s conscientious commitment to the public policies determined by the government of the day.

D e fi n i n g p ro fe s s i o n a l e t h i c s i n gov e r n m e n t Ponting later reflected that British public administration sorely needed an explicit code of ethics to bring greater public accountability to administrative norms, where pride of place was given to the crafty ability to ‘economise elegantly with the truth’.30 Two weeks after the acquittal, the head of the Home Civil Service and Cabinet Secretary, Sir Robert Armstrong, issued his Note of Guidance on the Duties and Responsibilities of Civil Servants in Relation to Ministers, which has become known as the Armstrong memorandum.31 This remarkable document was the first British attempt to state publicly the norms and conventions of public service in a service-wide code of conduct. It won the immediate war against whistleblowers but lost the peace that followed, when this edict was replaced by the first version of the current Civil Service Code, which is more compatible with democratic ethics of accountability.The Armstrong approach was anchored in a traditional commitment to ‘passing the buck up the hierarchy into oblivion’. According to Ponting, the memorandum rested on ‘a convenient and cynical concept’ of conscientious loyalty to the government of the day, regardless of the integrity of the government’s conduct.32 The Armstrong memorandum is only a few pages long, and modestly claims merely ‘to restate’ administrative responsibilities to ministers.

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Generous souls might think that the document is an intentionally incomplete restatement because it tends to leave out responsibilities to parliament and the public.The theoretical premise of the restatement is that civil servants ‘are servants of the Crown’, which for all ‘practical purposes … means and is represented by the Government of the day’.The bureaucracy is not an independent branch of government, and the legislative branch is held to have little authority to extract public service compliance. In this view, the civil service ‘has no constitutional personality or responsibility separate from that of the duly elected Government of the day’ (paras 1, 2). Armstrong lists the three basic categories of public service responsibility as: policy advice; program implementation; and public management of government services. This listing might appear to render them neutral or even amoral instruments of political convenience, but the restatement contains an important version of the ethic of integrity around which so much ink and perhaps not a little blood has been spilt.The three basic professional duties to government are listed as: providing advice on policy formulation – clearly distinguished from ‘determination’, which is a government responsibility; providing assistance in ‘carrying out’ decisions of government; and providing essential management of public services delivered to the community (para. 3). Ministers are solely responsible to parliament ‘for the conduct of the department’s affairs and the management of its business’, and therefore have a right to expect of civil servants complete confidence and trust. But are the two causes of government confidence and official integrity necessarily or inevitably compatible? According to the Armstrong doctrine, the path of official integrity is confined within narrow and clearly visible borders marking the limits of official responsibility. Many of its critics have overlooked this moral benchmark, softly spoken as it is. But the memorandum does identify three irresponsible activities as breaches of official integrity: activities by officials which (1) ‘withhold relevant information’ from ministers; (2) give ministers less than the best advice ‘they believe they can give’; or (3) seek ‘to obstruct or delay a decision simply because they do not agree with it’ (para. 5).Admittedly, each breach is a breach of faith with ministers. There are no identified breaches of faith with the public. The Armstrong doctrine focuses on the political management of information, identifying administrative sources of potential frustration or obstruction. Civil servants have duties of trust and confidence to government; in the event of consci-

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entious objection, officials can seek service counselling or accept the choice of resignation, and with it, a continuing duty of public silence (paras 1011). Speaking out to parliament or other public bodies is intolerable, because ministers alone have the right to determine what information will be released, to whom, when and under what circumstances. The duties of officials are instrumental to that ministerial will. Thankfully, this rendition of public service ethics has been overhauled. The current UK Civil Service Code is a substantially rewritten version with considerably greater protections for public-interest professionalism. The Thatcher government also moved to update the Official Secrets Act, although never to Ponting’s satisfaction. The new civil service code and a companion code of conduct for ministers became public documents reflecting the new orientation towards the end of the post-Thatcher conservative rule of Prime Minister John Major.The following comments indicate some of the grounds of misgiving that arose in the immediate wake of the Armstrong memorandum, and the role of parliamentary scrutiny in bringing greater public accountability to bear on official conduct.

Po l i t i c i s a t i o n a n d e t h i c a l re s p o n s i b i l i t y The Armstrong doctrine accepts that the official has a professional duty to promote government policies. The British parliamentary committee then responsible for taking up the policy implications of this doctrine was the House of Commons treasury and civil service select committee.This committee’s May 1986 report Civil Servants and Ministers appears more sensitive to the risks to public service professionalism that such an approach might foster.The committee addresses two particular aspects of information management: what policy information gets through the bureaucracy to ministers, and what policy information is delivered by ministries to the public. Organisations can be just as obstructive of public policy as individuals. Part of the committee’s motivation might have been to assist the political side of the policy process by devising some mechanisms which could free up the policy process within the bureaucracy. Ministers too often receive one line of advice, ‘the departmental view’, as though there was only one policy option held within any organisation (paras 5.1–5.6). To the limited extent that the committee flagged this issue, Ponting could be made to represent not the obstructor but the obstructed, the beleaguered policy critic whose views are overridden by the organisational ethic of his own bureaucracy.

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The other side of the information management issue concerns ‘politicisation’, understood in the sense of government manipulation of public office or officials, justified by reference to the ‘information need’ governments have for spirited and committed marketing of their policies – or ‘spin’, to use the emerging jargon.The committee’s argument here is noteworthy in that it supports the call for greater numbers of political appointments in senior policy posts within the bureaucracy (paras 5.7–5.45). Part of the post-Ponting debate focused on the legitimacy of ministerial use of public servants as policy publicists, with Armstrong defending the practice as a legitimate service to any duly elected government of the day, and the civil service unions protesting that it was a form of political manipulation. The committee’s recommendation is understandable in that it shortcircuits the fruitless debate over politicisation by authorising the executive to ‘top up’ the bureaucracy with policy loyalists (that is, ministerial staff, called ‘special advisers’ in the UK) who would save careerists this risk of soiling their professional consciences. The price paid by ministers for this widened zone of executive energy, however, would be increased parliamentary diligence in ‘oversighting’ the public integrity of the career civil service. This implies greater parliamentary scrutiny of the public service to establish its professional integrity and freedom from manipulation by governments.The many exchanges that have recently taken place between the current public administration committee of the House of Commons and Prime Minister Blair over more direct public service accountability to parliament illustrate an escalating dispute over the ethics of accountability. In the Ponting context, ‘politicisation’ has not meant party-political appointments but has been discussed in terms of a trend away from traditions of objectivity, neutrality and impartiality towards practices of ‘committed’ administration. As ever with the topic of politicisation, it is often difficult to appreciate the precise nature of the changes in dispute, although it is clear that British administration is frequently understood as being transformed from a somewhat ‘negative’ to a more ‘positive’ culture. Opinions differ on the merits and indeed the design of the changes.The altered ethos is defended in terms of managerial commitment to the ministerial agenda and the tradition is criticised for its obstructive policy pretences. Although ‘politicisation’ is the attention-seeking idiom, it helps to recognise that the real threat is not external manipulation – for example party-political appointments – but internal surrender by public services of their public-

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interest professionalism. The deeper ethical complaint is not really one of politicisation but of the reverse,‘neutralisation’, understood as the substitution of a specious policy ‘neutrality’ in place of the traditional ‘public interest’ ethos and orientation. But perhaps it is prudent to remember the words of the then editor of the journal of the Royal Institute of Public Administration:‘There has never been really any massive support inside the service for the argument that senior officials act as a constitutional check upon the arbitrary power of ministers. Such a view tends to be an outsider’s rationalisation.’33 The Ponting affair confirmed that in the United Kingdom, as it were at the heart of the Westminster system, there was no real consensus on the substance of public service professionalism. The deeper fault was the increasing separation between traditions and tendencies regarding the constitutional character of the public service.Variations of this clash of principle can be found in most jurisdictions, but the clear advantage of examining the Ponting affair is that it gave rise to a rare political debate over the professional ethics appropriate to public servants.

The implications for Australia Australian bureaucratic life might have thrown up a handful of Pontings, but it has not yet found its Armstrong doctrine, although I suspect that this doctrine represents something of a default position which executive governments generally find hard to resist. Thankfully, many of the existing Australian equivalents are remarkably supportive statements of a public service professionalism which holds the ethic of public accountability in high regard, as illustrated shortly after the finalisation of the Ponting saga in a monograph on the role of departmental secretaries by Mike Codd, secretary to the Department of Prime Minister and Cabinet under the Fraser and Hawke governments.34 To take only one example, Codd’s section on administrative leadership begins with a non-managerial restatement of officials’ prime task of policy advising, and ends with comment on the ethics of non-partisanship. Official responsibilities are modelled by agency leaders whose core activities are framed, as it were, by frank advice on the merits of public policies and commitment to the ethics of public trust and accountability. Codd’s successor, Michael Keating, supervised the production of a remarkably important publication, Ethical Standards and Values in the

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Australian Public Service, launched by Prime Minister Howard in 1996.35 This report is, in my experience, one of the most mature international public service statements on public service ethics and values. It addresses contemporary challenges such as ‘ensuring that the community has trust in the integrity and fairness of the public service and therefore in the process of government’. Note this emphasis on the democratic value of community trust and not simply government trust in public processes.The report investigates the importance for public servants of ‘responsiveness to ministers and the community’ to reinforce the more fundamental issue of ‘public trust and confidence’. Or again, when speaking of this fashionable value of responsiveness, the report puts it in the context of ‘responsiveness and direct service to the public’, thereby strengthening the importance of public accountability as a vital democratic value missing in many discussions of the norms of responsible government.36 Of even greater interest is the report’s theme of the inevitability of ethical judgment in the professional lives of public servants. The report acknowledges the contribution of legislated values and codes in establishing known standards for assessing official conduct. But it also acknowledges that values-based legislation tends to increase rather than decrease the discretionary judgment of officials, because each officer is meant to act on the core values and apply them in ways that are distinctive to their spheres of official responsibility. Detailed rules have given way to general values, with the result that ‘judgment becomes the vital ingredient in defensible decisions when public servants simply cannot apply rules’. In an important section entitled ‘the complexity of ethical judgments’, the report lays out the framework for an examination of many case studies, separating out options in order to identify ‘defensible decisions’ that measure up to a test of ‘proper and justifiable conduct’. As we saw in chapter 5 when examining the Howard ministerial code, this Canberra concept of ‘defensible decisions’ is open to a range of interpretations, depending on whether the emphasis is placed on decisions that should be defended on their merits or decisions that can be defended on the available evidence.The report favours the higher standard, conveyed in its argument about the importance of being ‘able to justify decisions publicly’. Sensing that the ethic of responsiveness might occasionally get in the way of sound public justification, the report warns that responsiveness to ministerial priorities ‘does not remove the need for critical examination of and forthright advice on policies and their implementation’.37

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Almost by way of anticipation of later events in the life of the Howard government, the report argues that responsiveness does involve ‘more than an absence of hindrance either by action or omission’. It is reassuring to find a government policy document acknowledging that public servants ‘must strike a balance between responsiveness and independence of judgment in serving the government’. Even more reassuringly, we find that the balance turns on the public-interest concept examined in chapter 1. The report notes that ‘while not the deciders of the public interest, public servants have as much duty to advise on the public interest factors of an issue as on any other factors. Their role is not passive, in that they carry a responsibility to promote good policy, which is directed at the national interest and which looks beyond the immediate future.’38

Conclusion Deception rather than secrecy is the real enemy of trust, argues British philosopher Onora O’Neill.39 National security may require secrecy by government and even within government, but public trust in government is ruined by the discovery of active and wilful deception. As O’Neill argues, governments have no ‘licence to deceive’. Decisions over war and peace provoke heartache in government, as well as in the broader community.This chapter has examined the situation experienced by many public officials forced to consider their conscience when ministering (former UK Defence minister Heseltine) or managing (former UK civil servant Ponting) government services. An important lesson is that while ethics is a deeply personal issue, ethical conduct is a matter of interpersonal relations. Ethics is about right conduct and almost always that conduct is part of a relationship between the person in our focus (Heseltine or Ponting) and the many others sharing responsibilities with that person. Ethics in government is not a matter of being right or wrong about some government initiative (for example abortion: for or against?) but of managing relationships with others who share public power and responsibilities. We judge Ponting’s ethics in government not by what we think of his attitude to the Falklands War but by what we think of his conduct in managing his relationships with public service colleagues and the three ‘ms’ – ministers, members of parliament and the media. Judgments will differ about the appropriateness of Ponting’s official and unofficial relationships. But the larger lesson here is that public officials have

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choices in how they manage their relationships with other holders of public power, including those holding media power. This observation applies, albeit in different ways, as much to heads of governments as to junior officials. Ethics in government is not simply a matter of complying with the rules, although there will be plenty of occasions when rule-compliance is the required course of action.The cases examined in this chapter are exceptional, illustrating a number of exceptions to the normal rules.The benefit of examining exceptionally hard cases is that they help us appreciate the limits of rules and renew our appreciation of the role of judgment in interpreting rules and guidelines about ethical conduct.The following and final chapter examines ethical judgment at the heart of personal integrity in systems of democratic government. The Ponting principle is not the last word on ethics in government. But it does serve as a reminder of the agony of accountability that officials can find themselves in. The Ponting principle holds that public officials have duties to speak up, ultimately supported by the option to speak out if circumstances warrant it. By contrast, speaking out can be harmful to the public interest and it is important to remember that Ponting did not leak government information to the press or media. In his view, he was speaking up and not speaking out because he regarded parliament as a fundamental constitutional institution with legitimate claims on his professional competence. Ponting spoke up because his colleagues refused to. He was unable to convince his Defence colleagues to take official action within government to inform ministers that they were acting on incorrect advice. His colleagues defended their silence by claiming that their duty was to serve government, to respond as requested but not to nag ministers. In this view, ministers were entitled to put their spin on events, and the chief obligation of officials was to be ready to respond as and when required, if and only if asked. Ponting dissented, claiming that as public servants they had publicinterest obligations to ensure that ministers were fully advised of the realities of Defence intelligence. Ministers were directly accountable to parliament for the spin they put on government policy, but officials had a part to play by providing ministers with timely, accurate and correct information on events. Perhaps ministers were not lying but simply mistaken: the obligation on officials was to get them at least to face the facts, so they could act with open eyes when promoting government policy, fully aware of the

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possible costs of their preferred version of events. Ponting’s deepest insistence was that ministers should not misuse Defence intelligence to mislead public opinion. Officials had a duty to warn, which Ponting’s colleagues saw as ethical over-reach. Ponting’s view was that officials had a duty to advise ministers privately of mistaken advice and of potentially misleading ministerial statements. The ‘public’ in the concept of public service meant that ministers should have impartial analysis of the public-interest impacts of government decisions.The opposite is ‘government service’ where officials narrow their focus to the impacts on the governing party they serve. The situation in Australia today differs in many important respects. But one constant is the political pressure officials feel themselves under to stay in tune with government. Nobody expects officials to play their own tune according to their own personal preferences, regardless of government policy.The issue is about getting officials to speak up, not speak out. Speaking up means acting professionally within government and keeping ministers fully informed. Speaking out is different: Ponting tried to speak up but was forced into speaking out, by leaking government information to the government’s parliamentary critics. Predictably, the system closed in on him, but the circumstances were such that his jury excused him of official misconduct. The lesson is that public service systems that do not protect the duty to speak up will eventually encourage officials to speak out. Better to get the house in order first, by strengthening internal public service professionalism. As this chapter has shown, there are compelling public-interest reasons for officials to adopt a professional approach that keeps government fully informed of the best available intelligence and advice, even when that is inconvenient to a government’s short-term interests and inclinations.

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PA RT I V

REFRAMING G OV E R N M E N T AND ETHICS


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Chapter 8

P U TT I N G I T A L L TO G E T H E R Public and Personal Integrity

This final chapter revisits the theme of the opening chapter,‘taking ethics seriously’.The basic problem I have been investigating is this very turn to ethics by democratic governments, illustrated in rich detail by the experience of Australian governments. Governments see ethics as the solution to the problem of maintaining public trust in the integrity of the systems of government. By contrast, I have argued that ‘taking ethics seriously’ is itself a problem in that, depending on the form and substance of the ‘terms of trust’, it can deepen public distrust of government.This spiral in distrust might even be justified in those cases where governments use ethics for cynical exercises in window-dressing. But this new sense of distrust can do little to displace political cynicism or to restore ethical decency. Although distrust is a useful corrective to irresponsible government, the real challenge is to rewrite the ‘terms of trust’ so that governments act with greater ethical responsibility. I admit that distrust can be used to add value to government through various mechanisms of public accountability, but it can just as easily corrode even those corrective mechanisms. As I have argued, the secret of ethical government is finding the right balance between external public accountability and internal personal responsibility. In this final chapter, I want to lay out a more philosophical approach to this balancing act. Earlier chapters have reviewed a wide range of public policy instruments illustrating the contribution of the complementary values of responsibility and accountability. My aim has been to examine those policy frameworks that most effectively promote personal ethical responsibility in government. In this concluding chapter, I want to provide a final

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PA R T I V • R E F R A M I N G G O V E R N M E N T A N D E T H I C S

lesson on ‘taking ethics seriously’ by taking this personal element considerably further. Ideally, personal ethics comes into its own as the highest expression of the ethic of responsibility, where individual officer-holders are prepared to take full personal responsibility for their part in government. And again ideally, this willingness to take a high degree of personal responsibility also commits officials to corresponding burdens of personal accountability. In this final working through of relationships between the values of responsibility and accountability, I want to push back the boundaries marked out by these complementary values to give ‘public integrity’ room to move. There will be accountability versions of public integrity located a long way from the responsibility end of things; and there will be responsibility versions located a long way from the accountability end; and of course many versions in between. I want to bring some definition to the neglected versions at the high end of personal responsibility. Why bother with concepts of public integrity? In many ways, the most widely copied and admired case of governments ‘taking ethics seriously’ are those associated with this core value of public integrity. Indeed, the leading international journal devoted to ethics in government is called, simply, Public Integrity.1 Concepts of public integrity now circle the world as internationally agreed models of democratic public ethics which governments should be striving to promote. For most practical purposes, existing notions of public integrity serve democracy well and I have no immediate interest in calling them into question. But practical policy concepts are often theoretically underdeveloped, despite their practical utility. The concept of public integrity falls into this category. Analysts and government officials can read into it pretty much whatever they want and adapt it to serve a wide range of public policy goals. For the most part, democratic governments like Australia think of standards of public integrity as somehow ethically neutral, at a mid-point halfway between the accountability pole measuring official criminal misconduct and the responsibility pole measuring official compliance with the letter and spirit of the law. This rough-and-ready approach has plenty of useful consequences, but one defect I want to explore is that it does not show up the higher limits of ethical possibility that I will argue are associated with personal integrity. I contend that our systems of public integrity will be all the more sustainable when we appreciate the contribution of personal integrity to regimes of public integrity. Democratic governments can get along

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well enough in the absence of such an appreciation of personal integrity, but the limits to conventional approaches will only emerge in light of a ‘regulative ideal’ drawing on the personal as well as the political.

Public and personal integrity The last chapter examined professional ethics in government under stress during international conflicts.This chapter rounds out this picture by moving beyond the professional protections of office to examine deeper issues of personal integrity in government – beyond the ethics of role.The theme of public integrity arose in the first chapter as a useful way of putting a frame around government ethics. In this concluding chapter, I want to put a frame around public integrity itself. Chapter 1 investigated ways that governments can promote public integrity through a balance of regulatory mechanisms – some elevating the scope for official responsibility, others clamping down on threats to public accountability. This final chapter returns to the theme of public integrity but with a change of focus from the machinery of government to personal dimensions of character and conscience. I am not overturning my earlier interest in the ethics of role, which has the great advantage of helping officials think concretely about public ethics. The most common alternative is some sort of universal ethical system (utilitarianism is the usual suspect but it could just as possibly be a religious ethic) with abstract principles. I want to retain my preference for the concrete principles of institutional ethics, aiming to rediscover the personal ethics necessary if and when (more likely ‘when’) institutional ethics lose their own ethical integrity.2 I have been sceptical of aspects of ethics laws, in part because I share that very traditional suspicion that ‘you can’t legislate ethics’. Governments get ethics wrong when they think that the problem is solved by more rules and regulations, more elaborate guidelines and more detailed sets of aspirational values. My criticism is not that governments are self-serving in their ethics policies but that they are actually letting themselves and the community down by reducing ethics to compliance with rules and regulations. Rules are just the beginning: they can help frame expectations of official conduct but they can do little to motivate or sustain ethical conduct, which calls on the character of individual officials. This is not to discount what I had to say in chapter 1 about the importance of institutional impacts on individual choices – or the importance of ‘structure’ in conditioning the

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options for ‘agency’, to use grander social science categories. But at the end of the day, ethics in government depends as much on the relationships of responsibility by officials sharing power in offices of public trust as on rules and regulations, however values-based the rules might be. I think that whatever affects the quality of these working relationships is more decisive than the quantity of ethics law in rules, regulations, guidelines and directions.This might sound soft-headed but it is consistent with the recommendations of influential hardnosed critics of ethics laws. I have emphasised that ethics in government requires a substantial degree of trust so that officials can exercise their discretion and judgment, aware that their responsibility in office is balanced by burdens of public accountability.At its best, accountability tests the trustworthiness of those exercising public powers. At its worst, it robs office-holders of their discretionary responsibility, imposing a ‘zero tolerance’ regime of strict compliance. Ethics laws work best when policymakers appreciate the limits of the law and provide officials with opportunities to demonstrate their capacity for trust, including their capacity to accept public accountability for their discretionary exercise of public power. Critics of ethics laws like Mackenzie & Hafken argue that when it comes to ethical governance, ‘the hard part is accomplishing what the law cannot guarantee’.3 Ethical conduct is ultimately a matter of personal self-regulation, where the capacity for self-regulation is displayed by the quality of discretion and judgment individuals bring to the job, including the capacity for justification of job performance displayed through dialogues of accountability among relevant stakeholders. In teasing out the personal dimensions of public integrity, I will now consolidate many of my earlier sets of distinctions into one final and deliberately exaggerated set – pushing all the accountability elements into a loose coalition with an anti-corruption orientation, and pulling all the responsibility elements into another loose coalition with a pro-ethics orientation. This consolidated contrast makes bolder that earlier contrast between James Bryce’s realism and Henry Jones’ idealism. In chapter 2 I argued that both perspectives were necessary if we wanted to be true to the behaviour and potential of ethics in Australian democracy. Bryce’s realism keeps us alert to the role of constitutional institutions in moderating, at least up to a point, irresponsible politics. And Jones’ idealism reminds us of the need for an ethos of civic virtue, among electors as well as governing politicians, if popular government is to prosper.Although both perspectives high-

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light important features of Australian politics, realism seems closer to the actual provisions of Australian institutions of government.This is the default position, if you like, where the checks and balances of countervailing institutions do their best to restrain political irresponsibility. The Australian government system has shown that it can perform quite well.4 But Bryce knew that there would be limits to the power of constitutional institutions to curb the irresponsibility of governing parties. Bryce noted that the Australian constitutional order traced its legitimacy quite directly back to popular sovereignty and he feared that populism would emerge as the most characteristic Australian form of political irresponsibility. As I have noted, Bryce suspected that elected politicians and not the people themselves would be the primary agents of Australian populism. He feared that the constitutional order would do little to stop the damage to Australian democracy from wily demagogues. For his part, Jones held quite different fears: no system of institutional arrangements could ever be expected to stay true to the spirit of the laws, and this expectation meant that the ideals of democracy had to be cultivated through public education in appropriate democratic forms of civic virtue. Clearly, in every democratic system the spirit of the laws ought to guide the development of a democratic constitutionalism. Jones helps by relating personal ethics to social ethics and by linking the written constitution to the larger cause of the community. But it is an open question just how much potential Jones’ Idealism as a Practical Creed has to help devise a program of democratic political education, either for the citizenry at large or for the political class who inevitably think that the system exists for their benefit.

Reframing integrity The ‘terms of trust’ used by governments imply that ethics is good for government. Perhaps it is, but does this mean that it is good for the rest of us? We have seen in earlier chapters that there are good political reasons why governments believe that talk about ethics is good for government. Sometimes the talk means that governments are taking ethics seriously and at other times it means that governments are simply taking political advantage of the public expectation that ethics will be taken seriously. And even when ethics is taken seriously, it can be misunderstood as something more instrumental than inspirational. Clearly, there is plenty of space between these poles of the instrumental and the inspirational, to highlight yet

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another set of distinctions.We have to ask about the larger implications of ethics in government, and we can do this best by investigating the mound of hidden meanings beneath the concept of public integrity which increasingly dominates discussions of ethics in government. Integrity, a term that refers to wholeness (either the presence of completeness or the absence of undividedness) has emerged as the shorthand word for the desirable ethical quality required of persons and processes in the public sector. Public integrity means that officials and their decision-making processes are ‘whole’ in the sense of wholly focused on public duty, and not divided or conflicted or undermined by competing private interests. Integrity in this sense sounds not simply cool but positively cold, as though we were talking about servants of ‘the system’ rather than servants of the people.The rather austere ethical cast of public integrity is conveyed by the frequency with which ‘probity’ emerges high on the list of required qualities expected of persons and processes in government. Probity is more than just honesty and open dealing. Probity refers to an overall completeness or wholeness of dedicated public service promoted by campaigns for integrity – it means doing what you say you will do without deceit or dishonesty. But the underlying ethical quality is the rather off-putting one of ‘rectitude’, which is a very suggestive term because it hints at the stiff and uncomfortable posture of righteous conduct, perhaps even suggesting the importance of the external appearance of ethical character. Alas, yesterday’s good appearances might linger longer than they should, preventing the good won by yesterday’s reformers from being supplemented by new goods representing emerging interests and issues.At this stage, we can simply note that integrity, probity and related ethical qualities are now the subject of a wide range of regulatory instruments across government, from the strict letter of the law with cold, hard penalties to less formal guidelines with recommended codes of practice, like those for Australian cabinet ministers, which often seem to be written in invisible ink, as chapter 6 showed. Ethics as substance as distinct from appearance enters when we try to find appropriate standards for answering the question ‘how good is government?’ Ethics here means the proper conduct expected of public officials when on the job, performing their part in our public business, whether it be the most powerful and independent of judges or the most junior and powerless of public employees. The term ‘ethics’ generally refers both to right conduct and also to the philosophical study of right conduct, includ-

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ing investigation of competing standards associated with various ethical systems. Are the standards used by governments themselves when engaged in the ‘goodness’ business those of high ethics or low politics? It is hard to answer, especially when the talk is all about ‘good governance’, which falls between the highs of ethics and the lows of politics. The sort of ‘ethics experts’ responsible for designing and managing the ethics regimes which have set standards of official conduct across our governments are more likely to be experts in ‘good governance’ than experts in ethical philosophy. But for us on the outside looking in, the standards we bring to bear will have to be internal enough to capture the policy dynamics of ethics regimes and external enough to allow critical judgment, including the possibility that ethics regimes fall short of the standards of genuine ethics. The focus within government on the value of integrity leaves open and unanswered the question of just how real is the ethics that governments are promoting. Cynics suggest that all we are really addressing are fancy new terms and conditions of employment, with most of the obligations falling on the shoulders of the vast bulk of ordinary public employees – rather than on the higher managers and chief executives, not to mention the elected politicians, who seem slow to bind themselves with ethical codes. Public integrity is usually justified as a shared commitment among public officials not to abuse their power for private gain, which makes the cause sound like a negative approach to ethics, more akin to vice-prevention than virtuepromotion.This focus on vice-avoidance captures the mood of policymakers who have been responding to public concerns about ethical issues to do with unrepresentative government, in other words officials and processes that use public power to represent their own rather than public interests. The problems to which ethics regimes have arisen as possible solutions are ones of public distrust in government, based on persistent community suspicions that public officials have lax views about their public duties, allowing their private interests to colour or even bias their public tasks.

Personal ethical responsibility Faced with sustained public distrust of government, policymakers have options and choices. One option is to crank up accountability, for example by subjecting public officials to more frequent and more onerous inspections and reviews of their work performance.This can go to the lengths of putting the onus of proof on officials to persuade their reviewers that they

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have never failed to comply with relevant authority. Onora O’Neill describes this variously as the growing ‘culture of suspicion’ or the ‘culture of accountability’ capable of ‘damaging professional pride and integrity’.5 According to this approach, unauthorised conduct is a breach of the appropriate rules, resulting in either small matters of theft and fraud by officials, or larger matters of sleaze and corruption by those either greedy to use their official powers for personal gain or zealous enough to want to subvert due processes to promote their favoured sectional interests.This approach is based on the view that, when left unchecked, unauthorised conduct trends in the direction of corruption, and that accountability agencies should get in first to make sure that corruption does not take root among public officials, high and low. Another option brings us closer to the current preoccupation with ethics regimes, detailed in chapters 5 and 6. This is the alternative view which holds that a better strategy than this reactive one of overloaded accountability is the more proactive one of reinforcing responsibility through a conscientious sense of duty among public officials. Using ‘conscience’ loosely, we might hope that cultivation of an official conscience among officials might work more steadily and effectively than armies of inspectors. Conscience, of course, is the stuff of real ethics and is often pictured as the inner voice of deeply held personal morality. Many government reformers of old expected that probity and integrity would draw upon just such consciences and the background morality that informed them. But contemporary governments know that personal conscience is too variable a guide to the sort of conduct now expected of officials. Standards have to be carefully crafted – authorised according to public law, formulated by independent experts, credentialled by relevant professions, and implemented by public employers, with agency-specific adjustments for local priorities. At their best, professional codes of conduct try to standardise a shared professional conscience.Although generalist public servants or even elected politicians are not professionals in the same way that, say, lawyers or doctors are, governments too can do their bit to build an official conscience for many government officials.This conscience approach contrasts with the former compliance approach. Where the accountability and anti-corruption approach tries to promote greater compliance with authority, this alternative conscience approach invests in incentives, hoping to inspire right con-

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duct through a shared sense of public responsibility. Governments have experimented with many schemes to try to set a tone of public responsibility to inspire the professional life of their officials, with distinct realms of responsibility for different types of public officials. My support for these pro-responsibility approaches is based on a belief that they make for smarter regulation.6 Laws, even ethics laws, can not cover every contingency, with the result that a great deal of public decision-making calls on the discretion and indeed prudence of many participating officials, who have to act consistently with the law but in areas where the law is either silent or at best vague. Lawmakers themselves often acknowledge that those responsible for implementing the law are in effect policymakers because they have to do what the law can not do, which is apply the spirit of the law to changing concrete circumstances and make the legislative framework fit the unfolding policy circumstances. Officials have no alternative but to exercise discretion, which is the lifeblood of government operations and a welcome step forward from the ‘going by the book’ favoured by so many accountability agencies. Thus although we can think of accountability and responsibility as companion components of integrity systems, I hold that there are sound policy reasons for leading with responsibility and reserving accountability as a check against lapses of responsibility.7 The practical effect of this preference for responsibility can be seen in the integrity and ethics regimes that increasingly hold government together. Codes of conduct specifying core values play the part of coaches of good conduct, supplemented in the background by accountability mechanisms which have important supporting roles as safeguards against misconduct. An ideal governance arrangement would make use of both as each has distinctively valuable attributes, so that a balance using both would protect against misconduct while promoting good conduct.

Anti-corruption versus pro-ethics Anti-corruption approaches emphasise the external checks of public accountability, while pro-ethics approaches prefer to cultivate the internal checks of personal responsibility. Frameworks for public integrity get pulled in different directions, trying to satisfy the demands of both approaches. Ideally, both approaches should be made to work together, but this is rarer than one might think. Analysts of corruption tend to see public integrity

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quite differently from analysts of ethics. They identify different strengths and quite different weaknesses. Both perspectives share an interest in strengthening public integrity, but the two analytical orientations work from different models of integrity. They target different risks to public integrity and advocate different policy responses. But difference does not necessarily mean an either/or set of alternatives. Unfortunately, the persistence of these two quite distinct models of public integrity puts at risk our expectations for a comprehensive public policy approach to integrity in public life. It is a puzzle that the study of public integrity falls into two often distinct and separate approaches, with very few analysts competent in both.Very few academic analysts have contributed in equal measure to the literature on ethics and on corruption in public life.8 Australian public policy mimics this division, with two State legislative regimes illustrating the alternatives. On one hand, New South Wales has a strong anti-corruption law and a dedicated agency, the Independent Commission Against Corruption, to take responsibility for the anti-corruption campaign. On the other hand, Queensland has a range of supplementary approaches, including a Public Sector Ethics Act. Both jurisdictions see the need for a balance of anti-corruption and pro-ethics activities, but each legislative regime approaches public integrity from a distinct perspective, either mainly by combating corruption or mainly by encouraging ethics.9 Public policy requirements of integrity vary according to the model underlying the policy framework. Ethics advocates and anti-corruption strategists identify different benchmarks of compliance. One can meet the anti-corruption benchmark of integrity by avoiding criminal misconduct, but this falls far short of the ethics benchmark. For example, the ICAC framework defines public integrity in negative terms of avoiding corrupt conduct as specified in the relevant legislation. But under the Queensland legislative framework, which defines integrity in positive terms of striving for ethical conduct, the benchmark is much higher. Under the Public Sector Ethics Act, the obligation of integrity requires officials, among other things, to ‘advance the common good of the community the official serves’, as reported in chapter 5.Thus the measure of compliance with integrity standards varies considerably, depending on the model of integrity used in the policy framework. Consider the following itemisation of typical policy contrasts, beginning with the threshold issue of lawfulness. Is it better that our requirement

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for public integrity draw on the anti-corruption approach (no criminal misconduct) or the ethics approach (promotion of the common good)? The answer is probably that we can, indeed should, have both, but only if we are prepared to acknowledge the relative contribution of each approach to public integrity.The worst answer is to reject one and adopt its alternative as the sole guide to the practical meaning of public integrity. But between the best and worst answers there will be a wide range of competing balances, the appropriateness of which will depend on the type of risk to public integrity under consideration.

Lawfulness versus disobedience An initial contrast of policy perspectives relates to the law. Both anti-corruption and pro-ethics approaches might provisionally define public integrity in terms of upholding the law, but thereafter this consensus tends to break down. Anti-corruption analysts frequently take a stricter line than do their ethics counterparts. Corruption itself is defined in terms of criminal misconduct, so that integrity begins with legal compliance and corrupt conduct begins with unlawful activity. This is less true for ethics analysts, who commonly argue that compliance with the law is a necessary but not a sufficient requirement of ethical integrity. In fact ethics analysts often go further and argue that the law provides no more than a guide to minimal compliance with integrity. For ethics analysts, it is not the case that whatever the law does not forbid is therefore permitted. This spirit of achievement above and beyond the law is even more evident when ethics analysts go further and document case studies of integrity. Many of the best of these case studies involve clear breaches of the law where considerations of justice might require a ‘higher duty’ over and above the law.10 For instance, US legal scholar Stephen Carter examines the integrity of civil disobedience as one way of demonstrating the limits of obedience to law and conventional authority. This is in the context of a book which is somewhat conservative in its respect for tradition and religious authority, but more than aware of the defects of established power. Carter warns us not to forget ‘the great civil disobedients of our history’ and always to admire ‘the integrity of lawbreakers who stand up against unjust laws, the civilly disobedient who face punishment unflinchingly’, such as Martin Luther King, who rewrote the textbook on ‘nonviolent civil disobedience’.11

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P u b l i c i n t e re s t v e r s u s p r i v a t e i n t e re s t s Another policy contrast relates to the public interest, examined initially in chapter 1. Ethics approaches place great store in the concept of the ‘public interest’ as the anchor of loyalty for public servants. So also do anti-corruption approaches, which frequently define corrupt conduct not simply as illegal action but as action that is illegal because it goes against the public interest. Note, however, this difference in emphasis. Pro-ethics approaches tend to define the ideal of integrity as conduct which promotes the public interest, whereas corruption approaches tend to turn the definition around so that corrupt conduct is action that impairs or breaches the public interest. Ethics deals with the positive version and anti-corruption deals with the negative version. One can reformulate this as a contrast in elevations. Ethics approaches see integrity as a move up from individual interests to the higher plane of the public interest.Thus ethics analysts measure integrity in terms of access to the upward escalator taking individual officials up from their private interests to the higher level of responsibilities relating to the public interest. By contrast, corruption analysts tend to measure integrity in terms of the pressures to take the escalator down from protection of the public interest to the lower level relating to inappropriate private interests. In both formulations, one can sense another difference, in that ethics analysts focus on opportunities for officials to promote the public interest in order to ‘add value’ to the common good, whereas corruption analysts focus on duties to protect the public interest from potential harms associated with improper private interests. Wholeness versus wholesomeness A related difference concerns the concept of ‘the whole’ used to define the ‘wholeness’ at the heart of integrity.As British novelist and philosopher Iris Murdoch notes, integrity is like sincerity in that it ‘is an ambiguous concept’, wavering between a sense of genuine dedication to a cause – any cause – and a sense of commitment to wholly decent causes.12 Sincerity is a kind of transparency, but whether we like what we see depends on how we rate what we see, not on how we rate sincerity. Sincere zealots are no less a worry because of their sincerity. Sincere racists are still odious, which is one of the reasons that so many populist leaders pretend over and over that they are no friends of racism. Even tyrants can be quite sincere about

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their crazy ideologies. Integrity is like sincerity in that both terms are ambiguous because they clarify something about the means but little about the ends of moral conduct. A similar ambiguity can be seen in the contrasting accounts of integrity in anti-corruption and pro-ethics approaches. For corruption analysts, integrity is often seen as the convergence of self and system, as in the example of a good public employee who works for the good of the agency where she is employed.Taken to a larger dimension, this is also seen in the convergence of public employees generally and the public sector system as a whole. Corrupt conduct fragments this unified commitment, placing interests of self ahead of those of the employing agency and of the wider system of public sector agencies under the legitimate authority of elected public officials. Ethics analysts can accept all of this but tend to move significantly beyond it, drawn by a different definition of ‘the whole’ relevant to public service. For simplicity’s sake, I can call this a model of ‘wholesomeness’ as distinct from the anti-corruption model of ‘wholeness’. Ethics analysts examine competing interests across public sectors, noting the many tensions between loyalty to the employer and to the larger system-wide principles. Not all agencies deserve unconditional employee loyalty. But it does not stop there. Many ethics analysts document more fundamental tensions between loyalty to the system and loyalty to higher principles beyond those recognised by the system.The wholesomeness of the regime itself becomes an object of close analysis. Not all public sectors and not all political regimes deserve unconditional loyalty from employees. For ethics analysts, integrity is related to the specific values of the political regime, with the clear implication that integrity might well require degrees of disloyalty to defective regimes displaying systemic corruption. Thus at their extremes, both ethics and corruption approaches deal with the vexed issue of legitimate subversion, which attracts such labels ranging from the polite ‘public interest disobedience’ to the more rousing ‘noble cause corruption’.

Incentives versus sanctions Another difference deals with the balance of incentives versus sanctions. Ethics approaches focus on incentives for the achievement of integrity, while anti-corruption approaches focus on penalties for the non-performance of integrity. Corruption is seen in terms of criminal misconduct which can be

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minimised by clear and present sanctions. Ethics differs in being seen as conduct above the legal minimum, so that there are not really penalties for nonperformance. Hence the importance in the ethics literature of trying to look to the positives rather than the negatives and to devise incentives to motivate officials to ethical performance. This leads us into the area of valuesbased approaches to public integrity now widely evident in ethics regimes in many public sectors.The hope here is that public articulation of the right principles will set the tone for appropriate conduct. The ethics approach to public conduct based on values and principles is balanced by the anti-corruption approach to enforcement and strategies for compliance with principles. Both accept that principles-based regulation is preferable to strict ‘by the letter’ prescription, but they tend to differ when dealing with non-compliance. Anti-corruption approaches look to (but do not take complete comfort from) codes of conduct: policing and oversight and inspection are required to monitor compliance. Ethics approaches differ again, expecting great things from codes which are often explicitly called codes of ethics so as to reinforce their moral authority and power to inspire and set incentives.

Individuals versus institutions A further difference of policy perspectives relates to individuals versus institutions.Where ethics analysts define integrity in personal terms, corruption analysts define it in institutional terms.When each approach brings forward examples of integrity, we find on one side examples of exemplary individuals and on the other side examples of effective institutions. Ethics analysts try to identify leading practitioners – ‘exemplary public administrators’, to use Terry Cooper’s language in his co-edited book of studies of ethical leadership.13 Integrity is personified in the ethics approach, which tends to document instances and practices of ethical leadership as the most valuable case studies of public integrity. Corruption analysts tend to look beyond individuals to institutions, such as the ‘pillars of integrity’ formulated by the influential international private organisation Transparency International. In this approach, individuals perform their important role by maintaining institutions and improving the reach of institutional values. Corruption analysts know that virtuous individuals are a scarce commodity and that friends of integrity should not rely on or presume that virtuous individuals will always be in place to safe-

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guard integrity. More reliable are institutions or indeed a framework of institutions which can hold misconduct in check.

V i r t u e v e r s u s p ro b i t y Another difference relates to virtue versus probity. As seen by ethics analysts, integrity is a matter of individual choice or commitment to ‘do the right thing’. Again,Terry Cooper’s gallery of exemplars serves to make the point that personal virtue animates public integrity and that the ideal case is one where personal and public qualities converge. Thus it comes as no surprise that many ethics analysts favour one or more of the varieties of ‘virtue ethics’ and that examinations of personal character feature prominently in many ethics contributions to the integrity literature. By contrast, the anti-corruption approach tends to stop at lower levels of expectation of personal virtue, with a focus on personal probity rather than individual ethical excellence. Integrity understood in terms of probity has a lower but more achievable and therefore more feasible profile. Probity here refers to the absence of personal gain, in contrast to ethics’ models of virtue which focus on the presence of an ethical character. In the anti-corruption approach, probity takes on a self-effacing look consistent with this model of integrity as the avoidance of self-interest. In contrast, the ethics approach assembles a wide range of stories about different substantive virtues to illustrate the public benefits of private character. The virtue of courage might appear common to both approaches, but the versions of courage found in the anti-corruption approach usually have to do with the very real hazards of law enforcement, unlike the versions in ethics approaches which go further into the courage of lawmaking and, occasionally, even law-breaking. Te m p t a t i o n v e r s u s i n s p i ra t i o n Finally, in this round-up of contrasting perspectives, it is worth noting the subject of ‘integrity testing’ in another twist in our story of differences.The practice of ‘integrity testing’ is common in anti-corruption approaches but uncommon in ethics approaches. Anti-corruption approaches put integrity to the test by tempting officials with opportunities for illicit gain under carefully monitored circumstances. Ethics approaches pay much less attention to this sense of integrity testing. This reveals a larger difference over public duty and private interest. Anti-corruption approaches rely on

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accountability mechanisms to test one’s temptation to put self-interest ahead of the public interest; pro-ethics approaches try to arouse responsibility through inspiration to contribute to the public interest. Both approaches appreciate that integrity is displayed when public duty wins out over private interest. But the reliance on ‘integrity testing’ in anticorruption approaches indicates that the corruption focus is on private interest as the driver, with public duty as the restraining brake. By contrast, ethics approaches place greater importance on education and training than on this sort of testing of job fitness. In ethics approaches, the driver is public duty and the restraining brake is private interest. Hence the ethics approach with its preoccupation with general motivating principles stands in contrast to the anti-corruption preoccupation with its systemic vulnerability to the stealth of self-interest. One can dramatise this difference between these approaches in terms of two contrasting portraits of Socratic integrity. The ethics approach reflects the image of Socrates in Plato’s Apology where we see Socrates defending himself against charges of subversion: subverting the gods of the city and corrupting the young. Socrates takes it up to Athens and defends his philosophical vocation as a model of integrity, even if it breaches the laws and the authority of the Athenian regime. In this picture, the self-possessed Socrates and not the paternal Athens is the model of integrity. By contrast, the anti-corruption approach reflects the quite different situation illustrated in Plato’s short dialogue the Crito, where Socrates faces a bit of ‘integrity testing’ of his own. His friend Crito bribes his way into the jail where Socrates is being held after his conviction and reveals a plan to bribe their way out again, allowing Socrates a chance to flee Athens and escape the death penalty. Socrates passes this integrity test because he refuses to act on Crito’s scheme of corruption; in fact Socrates lectures Crito about the importance of civic loyalty and compliance with legitimate authority. By trying to reconcile these two classical accounts of Socratic integrity we can begin to appreciate the subtle relationships between the two faces of integrity.

A new beginning: from ethics to morality I have tried to demonstrate that ‘taking ethics seriously’ can take us above or below the usual bar of public integrity. Most conventional ethics strategies hover around the bar, with little attention to the vices of corruption or

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even less to the virtues of ethical responsibility.This demonstration alerts us to the options above and below the bar. In what follows, I want to take the least-favoured option and stretch public integrity northward above the bar. While accountability is external, responsibility is internal; while accountability is something demanded or asked of officials, responsibility is something delegated or given to officials.14 They come together when processes of accountability demand an account of the use of official discretion within the responsibility of public officials. In the world of anti-corruption programs, public integrity is advanced by forms of external accountability that hedge in undue private interests which detract from official responsibility. In the ethics world, public integrity is advanced by a sense of internal responsibility motivating officials and restraining them from irresponsible conduct. Governments proclaim their goodness, but I have suggested reasons why we might be sceptical about taking at face value what governments have to say about their performance in the ‘goodness business’.Another way of formulating this is to state my own suspicion that governments are not so much in the deep waters of this or any other ‘goodness business’ as in the shallower waters of the ‘rightness business’. Philosophers have long argued about the importance of distinguishing between concepts of the right and the good in ways which I think still have value.15 We can treat this distinction between the right and the good as one of the many attempts to distinguish an ethically rich version of public integrity from the adequate but ordinary corruption-free versions. Distinctions between rightness and goodness roughly parallel my distinction between thin versions of public integrity and these richer versions well above the usual bar. Typically, when systems of governments really do mean to ‘take ethics seriously’ they mean ethics as rightness based on an ethics of role. This is the necessary but insufficient basis for individuals who want to ‘take ethics seriously’.At some point, individuals have to judge the worth of being right according to the ethics of role: that is, they have to judge the goodness of being right, judged according to some higher standard than what is convenient to systems of government. I now want to clarify this distinction between the ethics of role-rightness and the ethics of individual goodness by making a useful but rather artificial distinction between ‘ethics’ and ‘morality’.Thus far we have been discussing ‘ethics’ and I now want to put that into perspective by focusing on ‘morality’.

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I acknowledge that, for all practical purposes, the two terms ‘ethical’ and ‘moral’ are interchangeable, the former deriving from classical Greek terminology and the latter from classical Latin terminology, both dealing with proper conduct. In fact ‘morality’ reflects Cicero’s sensible attempt to find a Latin equivalent to Aristotle’s term ‘ethics’.16 So for most purposes, the two terms cover the same territory. But there are useful reasons for discriminating between ethics and morals, as well as the right and the good. Modern philosophers have been impressed by studious attempts by the great German philosopher Immanuel Kant (1724–1804) to put a little distance between the social conventions of ethics and the sterner obligations of morality. From another direction, the great 19th-century British ethics scholar Henry Sidgwick (1838–1900) held that the good is more encompassing than the right, referring as it does to personal happiness and not simply to conventional duties.17 This is but one example of the tendency among modern authorities, of whom RM Hare is a contemporary voice, to endorse Kant’s distinction between the ethics of right conduct and the morality of good conduct. Onora O’Neill is a more recent voice reviving Kantian distinctions between conventional rights and moral duties.18 The general point flowing from Kant is that right conduct is consistent with morality but is not motivated by morality, and therefore falls short of genuine goodness. ‘Ethics’ in this sense refers to outwardly correct conduct complying with appropriate standards, while ‘morality’ refers to similar conduct when properly motivated by deeper moral purposes.19 For example, a public official who does not break the law might display correct conduct and therefore be ethical. But while this correct conduct might be right, it falls short of being really good because it lacks deeper moral motivation. Following Kant, we can see ethics as a test of compliance and morality as a test of character. In this view, ethics tests one’s compliance with due authority whereas morality tests one’s character in complying with stricter duties calling on one’s deepest moral commitments. Even though right conduct is ethical, it is less worthy because it is less morally admirable than good conduct. For Kant, although right conduct is consistent with duty, often it is not motivated by a sense of duty. Right conduct is commendable but it is not admirable: it is simply doing what is expected of one in a particular role. Right conduct is more worried about what could go wrong (bad consequences) than with what should go right (good inten-

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tions).Accordingly, good conduct is closer to moral excellence than is ethical or right conduct because good conduct is distinguished by the moral deliberation, or what I can call the might of motivation, driving the conduct. Thus ethical conduct is driven by self-regarding interest in authority, including fear of the consequences for oneself in the event of non-compliance with authority. By contrast, good conduct is driven by its comparatively selfless devotion to moral principle, which explains why it is more admirable and indeed more rare than merely correct conduct. In Kant’s view, commitment to the fundamental moral principle of duty for duty’s sake is the defining feature of good conduct – performance of one’s duty for any other sake might superficially resemble morality but is merely correct rather than conscientious. The 19th-century German philosopher Hegel (1770–1831), who was one of Kant’s successors (but not one of his followers) also distinguished between two realms of ethics and morality. But because of his opposition to Kant, Hegel somewhat reverses the relationship so that morality refers to the good of individuals taken abstractly as isolated universal selves and ethics refers to the good of individuals in their concrete social capacities. Morality measures individual conduct in the abstract; ethics measures social relationships. For Hegel, the ‘good’ captured by morality is less valuable than the ‘right’ of the social relationships captured by ethics. Both target individual performance; but whereas morality is a formal test of individualised conduct, ethics is a test of personal contribution to the ethos or mores of collective conduct. Morality is personal; ethics is political. Searching for a means of reconciling these two modes of moral thinking, Hegel held out the prospect of an ideal state of affairs where the ethical and the moral would merge. But for all practical purposes, in this less than ideal world, most of the ethical structures of social life exist in tension with the moral demands with which individuals saddle themselves. For Hegel, the cool realm of ‘oughts’ and moral duties tends to be an abstraction from the concrete ethical relationships experienced in the warmth of everyday social life, where social roles bring with them corresponding responsibilities of a more immediate and binding nature than the distant region of duties. Ethical conduct is in conformity with the highest standards of civil society, varying from nation to nation; morality refers to a potentially higher plane of conscientious reflection on the larger significance of conduct when seen from the perspective of the soul or spirit.20

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Drawing on this philosophical tradition but using it to suit contemporary policy issues, we can think of ‘rightness’ as referring to the important shallows of doing the correct thing under the circumstances we find ourselves in, and ‘goodness’ as referring to the deeper challenges of doing the virtuous thing. One can aspire to be a good person and one can strive always to do the right thing; but one can not really aspire to be a ‘right person’.The very term grates, implying that what is right varies with circumstance, whereas what is good relates more fundamentally to whatever it is that human beings desire in order to be true to their humanity. Both the right and the good capture important aspects of ethics and morality. Rightness relates to duties of office or role; goodness relates to desires for wholeness and complete humanity – virtue understood in its original sense of human excellence. With this distinction in mind, we can see that many public integrity programs target rightness rather than goodness. Public integrity thus usually deals more with public ethics than with personal morality. Integrity programs try to strengthen officials’ commitment to doing the right thing by reference to the duties of their specific public office. Rightness is certainly worthy of policymakers’ preoccupations. Rightness is, to coin a phrase, good as far as it goes.This is not to slight current public integrity programs or the public policies generating them. But it is to suggest that we should not expect too much goodness from strategies dealing primarily with rightness, which is probably rare enough in public life for us to treasure it wherever we find it. Following the lead of philosopher Dorothy Emmet, we can say that doing what is right means doing what is expected of one, whereas doing what is good means doing what one should do in order to complete oneself as a human being.21 In some respects, this is a contrast between duty and desire. The right deals with duties to observe extrinsic values, while the good deals with desires for intrinsic values. Both sets of values have worth and the moral ideal would be a good person doing the right thing. But doing the right thing might not always require being a good person and it is possible for good persons to fail to do the right thing.This set of distinctions between the right (ethics) and the good (morality) is consistent with much of current policy usage. For instance, public policy requires that many public organisations have ‘ethics committees’ to advise on the implementation of codes of conduct. Policymakers do not require the establishment of ‘morals committees’ and usually do not push beyond codes of ethics to

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explicit ‘codes of morality’.This policy usage reflects the analytical distinction I have been making between the right and the good, and supports my contention that ethics regimes have more to do with shoring up right conduct than with transforming the personal morality of public officials. Some readers will have discerned that my approach resembles that of Iris Murdoch when attempting to locate ‘the place where the concept of good lives’.22 Sound ethics are all right in their place, but determining that place requires keeping alive the distinction between the means of ‘doing right’ and the greater end of ‘being good’.

Conclusion This final chapter has rounded out my investigation of government ethics by locating two limits of public ethics: the first derived from the personal dimension to public office and the second derived from the convenient distinction between the world of private morals and the world of public ethics. Why so many competing and overlapping perspectives? My answer is that ethics is primarily about relationships and that analysts of ethics have to chart the web of relationships expected of those whose ethical conduct is under scrutiny. I end with the theme of the personal because it raises many of the most important yet least studied of ethics relationships. I concede that my contribution, in this chapter but also in the book overall, is no more than a beginning to a comprehensive chart of ethics relationships in democratic government. This chapter has allowed me to investigate arguments over standards of personal integrity in public life. Democratic governments construct ethics regimes according to standards of public integrity they consider appropriate to democratic systems. My thesis has been that it is an open question exactly how compatible with democratic principles such regimes and their background standards are.This doubt is in the mind of many citizens when they ponder the ‘terms of trust’ claimed by governments when justifying their commitment to ethics. But in chapters 5, 6 and 7 I have also argued that doubts over ethical standards can rise in the minds of conscientious public officials, some of whom might wonder about the lack of compliance by governments with their declared standards and others of whom might question more radically the compliance of government standards with ethics as such.

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This line of questioning takes us beyond Australian arguments over ethics regimes and beyond most conventional frameworks for ethics in democratic government. My useful fiction in the distinction between ‘ethics’ and ‘morality’ serves to keep open this theoretical scepticism about the use and abuse of ethics. Contemporary governments entertain quite extensive policy discussions over ‘values’ but they are generally reluctant to speak openly about their official conduct in terms of ‘morality’, preferring to avoid these deep waters and to stick to the shores of ‘ethics’. Anthropologists investigate ‘moral codes’ in every society, with the aim of identifying the power of the social mores at work in social regulation. But even though contemporary democratic governments regulate extensive aspects of their citizens’ ethical conduct, rarely does this attract the label ‘moral regulation’. Anthropologists might be correct to see these forms of government regulation (for example the ‘mutual obligations’ of those receiving government assistance for income support, housing or job training) functioning as ‘moral codes’. But governments themselves operate on liberal distinctions that leave morality to personal choice about private conduct, so long as it does not interfere with civil peace, with ethics the accepted term for responsible public conduct. We can see governments framing policies to regulate various ethics of office or public role but we do not see them regulating the personal morality of professionals performing the relevant role. Professional conduct is meant to be impersonal in the sense that the power of the profession is expected to be used without any irrelevant partiality, with no personal considerations getting in the way of impartial service. This sort of impersonality is the stuff of professional or role ethics, with morality reserved for matters of personal or self-identity.23 I see this formal distinction between ethics and morality as a backhanded compliment to the pre-eminence of morality over ethics.The language of morality is reserved for the deepest matters of value in public and personal life. For instance, we can see integrity at work when we come across persons exercising ‘moral authority’ in public life. An alternative term is ‘moral stature’, with no equivalent term of ‘ethical stature’.To speak of ‘ethical authority’ would demean the sense of personal integrity on display, just as ‘the morality of role’ conflates the two distinct aspects of personal morality and public role.When we speak of the place of moral purpose in public life, we really do mean something weightier than compliance with ethical rules and guidelines.When citizens reach for standards of morality, they

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are making useful distinctions between ethics standards promoted by governments and more crucial, external standards of public morality. Democratic governments want us to trust them to get on with their exercises in self-regulation. The ‘terms of trust’ invoked by governments presume that public ethics lends itself to this sort of professionalised standards-setting and regulation. Onora O’Neill represents the best case against external accountability made in the name of professional self-regulation.24 This chapter has revealed another dimension to ‘self-regulation’ in the personal characteristics of the ‘self ’ behind the public mask or official persona or government role.The model of professional self-regulation has its limits because finally public office-holders manage their powers according to their political judgment about the balance of responsibilities and accountabilities. There is no exact professional model for the exercise of political judgment, as is shown in Aristotle’s anatomy of practical wisdom, examined in chapter 2.Thus my concluding theme of personal morality links back to Aristotle’s theme of political judgment, where prudence stands out as a model of careful personal judgment about what we might think of as ethical relationships. Although I do not want to reopen the whole discussion of public and private, I admit that for Aristotle, prudential leadership could not but be affected by the personal values – or personal virtues to use the older and better term – that leaders bring to the job. The various schools of virtue ethics rest on this pre-liberal view, which is compatible with notions of personal responsibility in many models of ethical public service. Democratic governments can do no better than reconsider classical models of prudential leadership when they wonder about the temptations that so many individuals, in and out of government, have to break ranks with their ethics of political role and to rebuild the ‘terms of trust’ around more substantial moral virtues than are found in many conventional accounts of ethics in government.

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N OT E S

I n t ro d u c t i o n 1 2 3 4

5

Hon. John Howard, National Press Club Address, 7 October 2004, available at <www.pm.gov.au>. Jennifer Byrne, ‘Lunch with Jennifer Byrne: Mark Textor’, Bulletin, 1 September 2004. Mark Latham, National Press Club Address, 6 October 2004, available at <www.alp.org.au>. Senate Select Committee on the Scrafton Evidence, established 30 August 2004, with an initial public hearing held on 1 September 2004: see Committee Hansard, available at <www.aph.gov.au/Senate/committee/scrafton_ctte>. Quoted by Elizabeth Colman, ‘Writing on wall for committees’, Australian, 13 October 2004.

Chapter 1 1

2 3 4 5

6

A useful overview of the evidence is Murray Goot, ‘Distrustful, disenchanted and disengaged?’, in David Burchell & Andrew Leigh (eds), The Prince’s New Clothes: Why do Australians dislike their politicians? UNSW Press 2002, pp. 9–46. An important British study of so-called ‘club government’ is Michael Moran, The British Regulatory State, Oxford University Press 2003, especially pp. 124–54. Quoted by Laura Tingle, Australian Financial Review, 19 August 2004. Mackenzie, Scandal Proof, p. 53. On the balance of responsibility and accountability, see Richard Mulgan, Holding Power to Account: Accountability in modern democracies, Palgrave Macmillan 2003, particularly pp. 15–22, 236–40. A similar balance between accountability and trust is the subject of the 2002 BBC Reith Lectures by Onora O’Neill, A Question of Trust, Cambridge University Press 2002.A fundamental philosophical source is Annette C Baier,‘Trust’, Tanner Lectures on Human Values, 13: 1992, University of Utah Press 1992, pp. 109–74. Helpful guides to the international debate over the state of public trust in contemporary democracy include: Francis Fukuyama, Trust:The social virtues and the creation of prosperity, Hamish Hamilton 1995; J Nye, P Zelikow & D King (eds), Why People Don’t Trust Government, Harvard University Press 1997; Valerie Braithwaite & Margaret Levi (eds), Trust and Governance, Russell Sage Foundation 1998; Mark Warren (ed.), Democracy and

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N O T E S T O PA G E S 2 9 – 4 8

7 8

9

10

11 12 13

14

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Trust, Cambridge University Press 1999; Susan Pharr & Robert D Putnam (eds), Dissaffected Democracies, Princeton University Press 2000; and the very readable Kieron O’Hara, Trust: From Socrates to Spin, Icon Books 2004. My approach also draws on a classic but now forgotten book defending the value of public distrust:Vivien Hart, Distrust and Democracy: Political protest in Britain and America, Cambridge University Press 1978. One of the best guides to the Australian state of public trust is Murray Goot,‘Distrustful, disenchanted and disengaged?’ A sobering study is Mackenzie, Scandal Proof. An older model of the study of ‘ethics in government’ is Mark Moore & Malcolm Sparrow, Ethics in Government:The moral challenge of public leadership, Harvard University Press 1990. One fascinating model of mature muckraking is provided by the US organisation dedicated to ‘investigative journalism in the public interest’: the Center for Public Integrity, in Washington DC, on line at <www.publicintegrity.org>. Of the many studies, pride of place goes to Richard E Flathman, The Public Interest: An essay concerning the normative discourse of politics, John Wiley & Sons 1966. See also Carl J Friedrich (ed.), The Public Interest, Nomos V: Yearbook of the American Society for Political and Legal Philosophy, Atherton Press 1962; and Virginia Held, The Public Interest and Individual Interests, Basic Books 1970. For one approach, consider John Uhr, Deliberative Democracy in Australia: The changing place of Parliament, Cambridge University Press 1998, especially pp. 3–31. ibid., pp. 214–31. Among the most important theoretical studies is J Patrick Dobel, Public Integrity, Johns Hopkins University Press 1999. An accessible introduction is Stephen L Carter, Integrity, HarperPerennial 1996. I know of no better Australian introduction than Damian Grace & Stephen Cohen, ‘Ethical Reasoning in Business’ In their Business Ethics: problems and cases, Oxford University Press 2005, pp. 1–32. Following the practical lead of Robert C Solomon, ‘The Six Parameters of Aristotelian Ethics’, in Ethics and Excellence: Cooperation and integrity in business, Oxford University Press 1992, pp. 145–86. For greater diversity, consider Amelie Rorty (ed.), Essays on Aristotle’s Ethics, University of California Press 1980; for greater cohesion, see Wilfrid J Waluchow, ‘The Virtue Ethics of Aristotle’, in The Dimensions of Ethics, Broadview Press 2003, pp. 201–22.

Chapter 2 1

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The field of public accountability is surveyed in Richard Mulgan, Holding Power to Account: Accountability in modern democracies, Palgrave Macmillan 2003. On the subfield of parliamentary accountability, see also J Uhr, Deliberative Democracy in Australia: The changing place of Parliament, Cambridge University Press 1998, chapters 7 and 8. On responsibility, see JR Lucas, Responsibility, Clarendon Press 1993, especially ‘The Responsibilities of Office’, pp. 182–203. On the general topic of the balance of trust and accountability, see Annette C Baier, ‘Trusting People’, in Moral Prejudices: Essays on ethics, Harvard University Press 1994, pp. 183–202. A valuable study of ethics reform and persistent decline in public trust in government is Mackenzie, Scandal Proof, pp. 107–114. Standard political science accounts of trust theory include Russell Hardin, ‘Do we want trust in government?’ and Mark Warren, ‘Democratic theory and trust’, in Mark Warren (ed.), Democracy and Trust, Cambridge University Press 1999, pp. 22–41, 310–45; and Russell Hardin,‘The Public Trust’, in Susan

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Pharr & Robert D Putnam (eds), Dissaffected Democracies, Princeton University Press 2000, pp. 31–51. More philosophical are Martin Hollis, Trust within Reason, Cambridge University Press 1998; and Eric M Uslaner, The Moral Foundations of Trust, Cambridge University Press 2002. M Sawer, The Ethical State? Social liberalism in Australia, Melbourne University Press 2003. Francis G Castles, ‘Social laboratory’, in Graeme Davison, John Hirst, Stuart Macintyre (eds), with the assistance of Helen Doyle, Kim Torney, The Oxford Companion to Australian History, Oxford University Press 1998. James Bryce, Modern Democracies, Macmillan 1921. Henry Jones, Idealism as a Practical Creed, Glasgow University Press 1910. James Bryce, ‘The Constitution of the Commonwealth of Australia’, in Constitutions, Oxford University Press 1901, pp. 270–341. ibid., pp. 327–28. Bryce, Modern Democracies, vol. 2, pp. 394, 511, 543–44. Compare HG Brennan & A Hamlin, Democratic Devices and Desires, Cambridge University Press 2000, pp. 195–96, 201–03. James Bryce, Hindrances to Good Citizenship,Yale University Press 1909. James Bryce, ‘The Relations of Political Science to History and to Practice’, American Political Science Review, 3(1) 1909, p. 18. David Boucher,‘Practical Hegelianism: Henry Jones’s Lecture Tour of Australia’, Journal of the History of Ideas, 51(3) 1990, pp. 423–52 at 450. Boucher, ‘Practical Hegelianism’, pp. 444, 451–52. See also JA La Nauze & Elizabeth Nurser (eds), Walter Murdoch and Alfred Deakin on Books and Men, Melbourne University Press 1974, pp. 35–37, 43. David Boucher (ed.), The British Idealists, Cambridge University Press 1997, pp. viii–ix. Boucher,‘Practical Hegelianism’, pp. 433–34, 438–39, 451–52. See also Sawer, The Ethical State?, pp. 40–41, 43, 64. Jones, Idealism, p. 116. ibid., p. 110. ibid., pp. 220, 211. ibid., pp. 5–6, 9, 53, 136, 298. ibid., pp. 110, 113. ibid., p. 113. ibid., pp. 87, 89. ibid., pp. 28, 221, 222, 299. ibid., pp. 86, 114–15. ibid., pp. 86, 93, 220, 219, 52. John Braithwaite,‘Institutionalizing Distrust, Enculturating Trust’, in Valerie Braithwaite & Margaret Levi (eds), Trust and Governance, Russell Sage Foundation 1998, p. 343. See also John Uhr, Creating a Culture of Integrity, Taking Democracy Seriously series, no. 2. Commonwealth Secretariat 2003. Bryce, ‘Relations of Political Science to History’, pp. 5, 343.

Chapter 3 1

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John Uhr, ‘Democracy and the Ethics of Representation’, in Noel Preston & Charles Sampford with C-A Bois (eds), Ethics and Political Practice, Routledge/Federation Press 1998, pp. 11–24. Exceptions include Graham Maddox, ‘Political Leadership’, in Australian Democracy in

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Theory and Practice, 3rd edn, Longman 2000, pp. 484–513; and John Kane, The Politics of Moral Capital, Cambridge University Press 2001. Consider Barry Hindess, Corruption and Democracy in Australia. Report no. 3 for the Democratic Audit of Australia, Australian National University 2004. The acknowledged leader is Ethan Fishman; see his The Prudential Presidency: An Aristotelian approach to presidential leadership, Praeger 2000 and his edited collection Tempered Strength: Studies in the nature and scope of prudential leadership, Lexington Books 2002. See also Timothy Fuller (ed.), Leading and Leadership, University of Notre Dame Press 2000, and Edwin C Hargrove & John E Owens (eds), Leadership in Context, Rowman & Littlefield 2003. The source is Cicero, On Duties, ed. MT Griffin & EM Atkins, Cambridge University Press 1991, pp. 59–62; the history is from Alasdair MacIntyre, A Short History of Ethics, Routledge 1967, p. 74; and JP Dobel, Public Integrity, Johns Hopkins University Press 1999. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. JH Burns & HLA Hart, Methuen 1982, pp. 289–91. Henry Sidgwick, The Methods of Ethics, 7th edn, Macmillan 1967, p. 328. Peter J Steinberger, The Concept of Political Judgment, University of Chicago Press 1993, pp. 125–27. John Casey, Pagan Virtue, Clarendon Press, pp. 146–47, 170–71. See more generally Aristide Tessitore (ed.), Aristotle and Modern Politics, University of Notre Dame Press 2002. Dobel, Public Integrity, pp. 193–211. See also John Uhr, ‘Just Rhetoric? Exploring the Language of Leadership’, in P Bishop, C Connors & C Sampford (eds), Management, Organisation and Ethics in the Public Sector, Ashgate 2003, pp. 123–44. Stuart Hampshire, Morality and Conflict, Blackwell 1983, p. 124. Dobel, Public Integrity, pp. 198–208. Instructive applications of Aristotle in the field of business ethics include Robert C Solomon, ‘The Six Parameters of Aristotelean Ethics’, in Ethics and Excellence: Cooperation and integrity in business, Oxford University Press 1992, pp. 145–86; Solomon’s ‘Business and the humanities: An Aristotelian approach to business ethics’, in TJ Donaldson & RE Freeman (eds), Business as a Humanity, Oxford University Press 1994, pp. 45–75; and Sherwin Klein, ‘Aristotelian reflections’ and ‘An Aristotelian view’, in Ethical Business Leadership, Peter Lang 2003, pp. 55–83 and 85–101. Aristotle’s classic account of prudence is in book 6 of his Ethics: see for example The Ethics of Aristotle, rev. edn by Hugh Tredennick, Penguin Classics 1976, pp. 203–25; or The Nicomachean Ethics, rev. edn by JC Ackrill & JO Urmson, Oxford University Press 1990, pp. 137–58. See also Michael S Kochin, ‘Individual narrative and political character’, Review of Metaphysics, 55(2) 2003, pp. 691–709. The most recent useful study is Carnes Lord, The Modern Prince:What leaders need to know, Yale University Press 2003. See more generally Carnes Lord, ‘Aristotle’, in Leo Strauss & Joseph Cropsey (eds), History of Political Philosophy, 3rd edn, University of Chicago Press 1987, pp. 118–54. Aristide Tessitore, Reading Aristotle’s Ethics, State University of New York 1996, pp. 47–50. My quotations are from the Nicomachean Ethics, book 6, ch. 12 in the Ross translation as contained in The Basic Works of Aristotle, ed. Richard McKeon, Random House 1941. Nicomachean Ethics, 6, 12. A good commentary is Richard Ruderman, ‘Aristotle and the Recovery of Judgment’, American Political Science Review, 91(2) 1997, pp. 409–20. Nicomachean Ethics, 6, 5; 12.A fine application of models of practical judgment to contem-

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porary politics is Henry S Richardson, Democratic Autonomy: Public reasoning about the ends of policy, Oxford University Press 2002. See also John Uhr, Deliberative Democracy in Australia, Cambridge University Press 1998, especially pp. 19–29. Judith A Swanson, The Public and the Private: Aristotle’s political philosophy, Cornell University Press 1992, pp. 142–44; see also Tessitore, Reading Aristotle’s Ethics, pp. 42–47, and Steinberger, The Concept of Political Judgment, pp. 106–27. Nicomachean Ethics, 6, 10. John Uhr,‘Political Leadership and Rhetoric’, in G Brennan & FG Castles (eds), Australia Reshaped, Cambridge University Press 2002, pp. 267–68. Nicomachean Ethics, 6, 5; cf. Donald Kagan, Pericles of Athens and the Birth of Democracy, Free Press 1991. Aristotle, The Politics, ed. Carnes Lord, University of Chicago Press 1984, p. 83. Tessitore, Reading Aristotle’s Ethics, p. 50. For a similarly sceptical account of Pericles as a model for today, see Marc Landy & Sidney M Milkis, Presidential Greatness, University of Kansas Press 2000, pp. 7–8, 37. Carnes Lord, ‘Bringing Prudence Back in’, in Fishman, Tempered Strength, pp. 71–83; Carnes Lord, The Modern Prince, pp. 21–32; Kenneth Winston,‘Moral Competence in the Practice of Democratic Governments’, in J Donaghue & J Nye (eds), For the People: Can we fix the public service?, Brookings Institution Press 2003, at pp. 182–84. More recent treatments of leadership as an aspect of democratic theory include: JM Burns, Leadership, Harper Colophon 1978; J Blondel, Political Leadership: Towards a general theory, Sage 1987; JR Pennock, Democratic Political Theory, Princeton University Press 1979, pp. 470–505; BD Jones (ed.), Leadership and Politics: New perspectives in political science, University of Kansas Press 1989; EC Hargrove,‘The presidency and the prime ministership as institutions’, British Journal of Politics and International Relations, 3(1) 2001, pp. 49–70. Bryce, Modern Democracy, vol. 2, p. 606 ibid., p. 607. ibid., p. 509. ibid., pp. 394, 511, 543–44. Compare G Brennan & A Hamlin, Democratic Devices and Desires, Cambridge University Press 2000, pp. 195–96, 201–03. Donald Horne, Looking for Leadership: Australia in the Howard years,Viking 2001, e.g. chs 6 and 11. Bryce, ‘Australia’, in Modern Democracy, chs 46–52, and ‘Leadership in Democracy’, in Modern Democracy, vol. 2, pp. 181–290, 605–17; and ‘The Constitution of the Commonwealth of Australia’, in Constitutions, Oxford University Press, 1905, pp. 270–342. James Bryce, Hindrances to Good Citizenship,Yale University Press 1909. The argument against undue abstraction is well put by Stuart Hampshire,‘Public and private morality’, in Morality and Conflict, Blackwell 1983, pp. 101–25. A fine application of role ethics is Andrew Sabl, Ruling Passions: Political offices and democratic ethics, Princeton University Press 2002. See also Michael Walzer, ‘Office’, in Spheres of Justice, Blackwell 1983, pp. 129–64; and Arthur Isak Applbaum, Ethics for Adversaries:The morality of roles in public and professional life, Princeton University Press 1999. On the norms of dispersed leadership see JR Pennock, Democratic Political Theory, Princeton University Press 1979, pp. 478–500; and on the limits of executive supremacy see G Anastaplo, The Constitution of 1787: A Commentary, Johns Hopkins University Press 1989, pp. 89–123.

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37 John Uhr, Deliberative Democracy in Australia, pp. 213–49. 38 Ann Millar (ed.), Biographical Dictionary of the Australian Senate, Melbourne University Press, 2 vols, 2000 and 2004. See generally BR Barber, ‘Neither leaders nor followers’, in R Beschloss & E Cronin (eds), Essays in Honor of J M Burns, Prentice Hall, pp. 117–32. 39 Relevant here is JR Pennock, Democratic Political Theory, Princeton University Press 1979, pp. 495–505. 40 See generally Uhr, ‘Political Leadership and Rhetoric’. 41 Dobel, Public Integrity, p. 211. See also Richard Ruderman, ‘Democracy and the Problem of Statesmanship’, Review of Politics, 59(4) 1997, pp. 759–77. 42 An excellent source is John Kane, The Politics of Moral Capital, Cambridge University Press 2001. See also Uhr, ‘Just Rhetoric?’, pp. 123–28. 43 Thucydides,The Peloponnesian War, ed. JH Finley,The Modern Library, 2.37 (at 104) and 2.66 (at 121).

Chapter 4 1

Three excellent US studies of political leadership are Edwin Hargrove, The President as Leader, University Press of Kansas 1998; Marc Landy & Sidney M Milkis, Presidential Greatness, University Press of Kansas 2000; and Carnes Lord, The Modern Prince, Yale University Press 2003. 2 An important Australian collection investigating the presidential tendencies of Australian prime ministers is Patrick Weller (ed.), Menzies to Keating, Melbourne University Press 1992. 3 Anthony King (ed.), Leaders’ Personalities and the Outcomes of Democratic Elections, Oxford University Press 2002, p. 220. 4 A very readable guide to the British debate over presidentialism is Peter Hennessy, The Prime Minister, Penguin Books 2000, especially pp. 56–60, 483, 549–50. 5 Judith Brett, ‘The New Liberalism’, in Robert Manne (ed.), The Howard Years, New Inc Agenda 2004, p. 86.This edited collection contains much of the best recent critical comment on Howard and populism.Also revelant to the debate over populism under Howard are: Robert Manne, The Way We Live Now, Text 1998 and Two Nations, Bookman 1998; Carol Johnson, Governing Change: Keating to Howard, University of Queensland Press 2000; D Fletcher & R Whip,‘One Nation and the Failure of Political Leadership’, in M Leach, G Stokes & I Ward (eds), The Rise and Fall of One Nation, University of Queensland Press 2000; Donald Horne, Searching for Leadership; and David Solomon (ed.), Howard’s Race, HarperCollins 2002. 6 John Uhr, ‘What’s so responsible about responsible government?’, in David Burchell & Andrew Leigh (eds), The Prince’s New Clothes, UNSW Press 2002, pp. 155–66. 7 Howard Gardner, Leading Minds:An anatomy of leadership, HarperCollins 1997, pp. 285–98. 8 ibid., pp. 41–65; see also Graham Maddox, Australian Democracy in Theory and Practice, 4th edn, Longman 2000, pp. 484–513; John Uhr, ‘Political leadership and rhetoric’, in HG Brennan & FC Castles (eds), Australia Reshaped, Cambridge University Press 2002, pp. 261–94; and John Uhr, ‘Just rhetoric? exploring the language of leadership’, in P Bishop, C Connors & C Sampford (eds), Management, Organisation, and Ethics in the Public Sector, Ashgate 2003, pp. 123–44. 9 A useful brief overview is I McAuley,‘Leading Questions’, Dissent, Spring 2002, pp. 17–19. 10 Giovanni Sartori, Theory of Democracy Revisited, Chatham House 1987, pp. 81–82; see also Uhr,‘Political leadership and rhetoric’, in Brennan & Castles, Australia Reshaped, pp. 267–68.

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11 Aristotle, The Politics, book 5, chs 5–6. For an Aristotelian defence of populism, see Harry Boyte, ‘Civic Populism’, Perspectives on Politics, 1(4) 2003, pp. 737–42. 12 Donald Horne, Looking for Leadership: Australia in the Howard Years,Viking 2001. See also Judith Brett, ‘The New Liberalism’, in Manne, The Howard Years, pp. 74–93. 13 Horne, Looking for Leadership, p. 30. Consider Leroy G Dorsey (ed.), The Presidency and Rhetorical Leadership,Texas A&M University Press 2002. 14 Horne, Looking for Leadership, p. 37 15 ibid., p. 112. 16 ibid., p. 11. 17 WK Hancock, Australia, London 1930, p. 243. 18 See for example James Bryce, ‘The Constitution of the Commonwealth of Australia’, in Constitutions, OUP, 1901; and ‘Australia’, in Modern Democracies, Macmillan 1921, vol. 2, pp. 181–290. 19 Hancock, Australia, pp. 64–66, 93, 193, 223, 244. 20 ibid., pp. 51, 257, 271. See also ‘Murdoch on Bernard O’Dowd’,‘Deakin on Lawson’ and ‘Deakin on Australian Literature’, in JA La Nauze & Elizabeth Nurser (eds), Walter Murdoch and Alfred Deakin on Books and Men, Melbourne University Press 1977, pp. 80–98. 21 Stuart Macintyre, ‘Full of hits and misses’, in DA Low (ed.), Keith Hancock, Melbourne University Press 2001, p. 34. 22 Hancock, Australia, pp. 235, 238. 23 ibid., p. 180. 24 ibid., p. 199. Compare FW Eggleston, Reflections of an Australian Liberal, Cheshire 1953, ch. 2. 25 Hancock, Australia, pp. 95–98. 26 ibid., pp. 58–59. 27 Paul Kelly, The End of Certainty, 2nd edn, Allen & Unwin 1994. 28 Aristotle, The Politics, book 5, chs 3, 10, 11. 29 These quotations come from an excellent article by C Ryan, ‘The new engagement’, Australian Financial Review Magazine, August 2002, pp. 24–30. 30 SMH, 5 November 2001. 31 Horne, Looking for Leadership, p. 10. 32 A measured account is James Curran, The Power of Speech: Australian prime ministers defining the national image, Melbourne University Press 2004, pp. 235–65. 33 David Solomon, ‘Election race or race election?’ In D Solomon (ed.), Howard’s Race, HarperCollins 2002, pp. 246–49. 34 SMH, 5 November 2001. 35 D Fletcher & R Whip, ‘One Nation and the failure of political leadership’, in M Leach, MG Stokes & I Ward (eds), The Rise and Fall of One Nation, University of Queensland Press 2000, pp. 73–85. 36 Michelle Grattan, Two Nations, Bookman 1998, p. 75; see more generally Horne, Looking for Leadership, pp. 51–72. 37 Peter Charlton, ‘Tampa: the triumph of politics’, in Solomon, Howard’s Race, p. 83. 38 Solomon, Howard’s Race, pp. viii (David Solomon), 5 (Peter Charlton & David Solomon), 220 (Dennis Atkins). 39 Quoted by Ryan ‘The New Engagement’, p. 30. 40 Solomon, Howard’s Race, p. 235. 41 Greg Barns as quoted in David Solomon, ‘Election race or race election’, in Solomon, Howard’s Race, p. 245.

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42 George Walden, The New Elites, Penguin Books 2001, p. 40. For a democratic defence of populism, see Henry S Richardson, ‘The case for a qualified populism’, in Democratic Autonomy: Public reasoning about the ends of policy, Oxford University Press 2002, pp. 56–72. 43 David Laycock, The New Right and Democracy in Canada, Oxford University Press 2002. 44 Margaret Canovan,‘Trust the people! populism and the two faces of democracy’, Political Studies, 1999, p. 3. Consider also the symposium ‘To define populism’, Government and Opposition, 3(2) 1968, pp. 137–79; and TS Di Tella,‘Populism into the twenty-first century’, Government and Opposition, 32(2) 1997, pp. 186–200. 45 Edward Shils, The Torment of Secrecy, Heinemann 1956, pp. 98–104; compare G Stokes, ‘One Nation and Australian populism’, in Leach, Stokes & Ward, The Rise and Fall of One Nation, pp. 23–24. 46 Canovan, ‘Trust the people!’, 6, 14.The Hanson example is treated by Horne, Looking for Leadership, pp. 86–89. 47 Robert Manne, The Way We Live Now,Text 1998, pp. 91–94. 48 Horne, Looking for Leadership, pp. 51–72. 49 Uhr, ‘Political leadership and rhetoric’, pp. 272–76. 50 Pauline Hanson, House of Representatives Hansard, 10 September 1996, pp. 3860–63, conveniently reprinted in Horne, Looking for Leadership, pp. 272–79; see also Horne’s own comments on Hansonism, Looking for Leadership, pp. 26, 67, 87, 187, 229. 51 Solomon, Howard’s Race, p. 202. On political corruption, see Peter Andren, The Andren Report:An independent way in Australian politics, Scribe 2003, pp. 23–135, 237–53. Consider also Andren’s first speech, House of Representatives Hansard, 9 May 1996, pp. 733–38, examined in The Andren Report, pp. 114–22. 52 Solomon, Howard’s Race, p. 202. On the 1998 and 2001 elections, see Andren, The Andren Report, pp. 176–184, and 21–38. 53 House of Representatives Hansard, 14 March 2002, p. 1332. 54 Quoted in Solomon, Howard’s Race, p. 235. 55 House of Representatives Hansard, 14 March 2002, pp. 1332–34; Peter Browne, ‘The New Breed’, Eureka Street, 12(1) 2002, pp. 21–23. 56 Quoted in Solomon, Howard’s Race, p. 96. 57 House of Representatives Hansard, 29 August 2001, p. 30547, and Andren, The Andren Report, pp. 11–20. 58 Graham Little, The Public Emotions, ABC Books 1999, p. 15; see also Horne, Looking for Leadership, pp. 2–3. 59 SMH, 5 November 2001. 60 Manne, The Way We Live Now, p. 47. 61 Johnson, Governing change. 62 Maddox, Australian Democracy in Theory and Practice, pp. 497–98.

Chapter 5 1

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Not that ethics laws have made the US a model of public integrity; see for example G Calvin Mackenzie with Michael Hafken, Scandal Proof: Do ethics laws make government ethical? Brookings Institution Press 2002. For a comparable Westminster-derived system, see Ian Greene & David P Shurgaman, Honest Politics: Seeking integrity in Canadian public life, James Lorrimer & Co. 1997. Report, Select Committee on a Certain Maritime Incident,The Senate, October 2002; and Staff Employed under the Members of Parliament (Staff) Act 1984, Finance and Public

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Administration References Committee, The Senate, October 2003. The ethical implications are well canvassed by Michael Keating,‘In the wake of a certain maritime incident’, Australian Journal of Public Administration, 62(3) 2003, pp. 92–97. Mike Scrafton, letter, Australian, 16 August 2004. Steve Lewis & Patrick Walters, Australian, 18 August 2004. Quoted by Patrick Walters, Australian, 17 August 2004. ibid. Quoted by Lewis & Walters, Australian, 18 August 2004. Paul Kelly, Australian, 18 August 2004. Quoted by Tom Allard, SMH, 18 August 2004. It got worse, much worse; see Max MooreWilton’s comments on The 7.30 Report, ABC TV, transcript of ‘Children overboard prompts public service review’, 19 August 2004. John Stone, ‘Public service rot started with Labor’, Australian, 19 August 2004. Quoted by Ross Peake, Canberra Times, 19 August 2004. Quoted by Lewis & Walters, Australian, 18 August 2004. Patrick Weller, ‘Truth lies in murky waters’, Australian, 17 August 2004. David Marr & Marian Wilkinson, Dark Victory, Allen & Unwin 2003. See also Patrick Weller, Don’t Tell the Prime Minister, Scribe 2002. Comparable Canadian ‘dirty hands’ stories are reported on by Greene & Shurgaman, Honest Politics, pp. 163–93. Independent Commission Against Corruption (ICAC), Report on Investigation of the Metherell Resignation and Appointment, Sydney 1992. On the state history of public service corruption, see Barbara Page, ‘The Metherell affair’, Current Affairs Bulletin, 69(3) 1992; and on larger theoretical implications of this affair, see Mark Philp,‘Conceptualizing political corruption’, in AJ Heidenheimer & M Johnston (eds), Political Corruption, 3rd edn, Transaction Books 2002, pp. 41–57. As reported in John Uhr,‘Public service ethics in Australia’, in TL Cooper (ed.), Handbook of Administrative Ethics, 2nd edn, Marcel Dekker 2001, pp. 723–26. ICAC, Report, pp. 92. ibid., pp. 73, 78–79, 88. ibid., pp. 87–89. ICAC, Report on an investigation into the conduct of the Hon. Malcolm Jones MLC, July 2003. Meredith Burgmann,‘Constructing codes’, in Noel Preston & Charles Sampford with CA Bois (eds), Ethics and Political Practice, Federation Press/Routledge 1998, pp. 118–26. The best introduction is Noel Preston & Charles Sampford with Carmel Connors, Encouraging Ethics and Challenging Corruption, Federation Press 2002, especially pp. 99–126. Electoral and Administrative Review Commission (EARC), Report on the Review of Codes of Conduct for Public Officials, May 1992. ibid., pp. 9–28; see also David Solomon, Coming of Age: Charter for a new Australia, University of Queensland Press 1998, pp. 14–17. EARC, Report, pp. 22–25. For the history, see Preston, Sampford with Connors, Encouraging Ethics, pp. 113–14.

Chapter 6 1

For elaboration, see John Uhr, ‘Institutions of integrity: balancing values and verification in democratic governance’, Public Integrity, 1(1) 1999, pp. 94–106. The Canadian experience with codes and ethics commissions is reported on in Ian Greene & David P Shurgaman, Honest Politics: Seeking integrity in Canadian public life, James Lorrimer & Co.

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1997, pp. 129–62. A useful collection is John Uhr & Keith Mackay (eds), Evaluating Policy Advice, Federalism Research Centre, ANU and Commonwealth Department of Finance 1996. A Guide to Key Elements of Ministerial Responsibility, Department of Prime Minister and Cabinet 1998 (originally 1996); see also John Uhr, Deliberative Democracy in Australia: The changing place of Parliament, Cambridge University Press 1998, pp. 194–96. For the history of Westminster precedents, see Amy Baker, Prime Ministers and the Rule Book, Politico’s 2000.The text of Blair’s 1997 ministerial code is reproduced at pp. 149–92. Management Advisory Board, Accountability in the Commonwealth Public Sector,AGPS 1993. Management Advisory Board, Ethical Standards and Values in the Australian Public Service, Commonwealth of Australia 1996. Comparable Canadian norms are investigated by E Glor & Ian Greene,‘The Government of Canada’s approach to ethics’, Public Integrity, 5(1) 2003, pp. 39–65. A Guide to Key Elements of Ministerial Responsibility, section 5. See more generally John Uhr, ‘Moderating Ministerial Ethics’, in Jenny Fleming & Ian Holland (eds), Motivating Ministers to Morality, Ashgate 2001, pp. 187–200. N Bowen (Chair), Public Duty and Private Interest: report of the committee of inquiry, AGPS 1979. ibid., p. 31. A Guide, section 6. ibid. ibid. John Wanna, Joanne Kelly & John Forster, Managing Public Expenditure in Australia,Allen & Unwin 2000, pp. 254–58. See for example Matt Wade,‘Treasury backs Labor’s tax costings’, SMH, 8 October 2004; ‘Bureaucrats provide a bit of balance on costings’, SMH, 9 October 2004; and ‘Costello under fire as forecasts tempered’, SMH, 15 October 2004. See for example Mark Latham, ‘The new politics’, La Trobe Politics Society Annual Lecture, 19 March 2004, available on the Labor Party website <www.alp.org.au>. Senate Standing Committee on Privileges, <www.aph.gov.au/Senate/committee/priv–ctte>. HC Coombs (Chair), Report of Royal Commission into Australian Government Administration. Commonwealth Government Printer 1997. See also Uhr, Deliberative Democracy in Australia, pp. 164–70. See for example IC Harris (ed.), House of Representatives Practice, 4th edn, Department of the House of Representatives 2001, pp. 48–49. Coombs, Report, pp. 11–13, 22–27, 65–67. ibid., pp. 114–17. ibid., p. 13. Colin A Hughes,‘Codes of Conduct’, in K Wiltshire (ed.), Do Unto Others: Ethics in the public sector, Royal Institute of Public Administration Australia and EARC 1991, pp. 195–200. Australian Public Service Commission, APS Values and Code of Conduct, Commonwealth of Australia 2003, p. 7. ibid., pp. 16, 21. ibid., p. 20. ibid., p. 16. ibid., pp. 102–04. Public Service Commission, Guidelines on Official Conduct of Commonwealth Public Servants, Canberra 1995 (originally published by the former Public Service Board in 1987), pp.

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2–3, 12. ibid., pp. 3–5, 63. ibid., pp. 14–17, 52. ibid., pp. 58–63. Consider Australian National Audit Office, Public Sector Governance vol. 1, Canberra July 2003, and associated Guidance Papers, for example No. 1 on Public Sector Governance and the Individual Officer; No. 6 on Conflicts of Personal Interest and Conflicts of Role. 32 Bennett v President, Human Rights and Equal Opportunity Commission, 2003 Federal Court of Australia 1433 (judgment of Justice Finn dated 10 December 2003). 33 My model of ethical constitutionalism is John A Rohr, Public Service, Ethics and Constitutional Practice, University of Kansas Press 1998.

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‘Time for honest, considered, and balanced foreign and security policies’, Canberra Times, 9 August 2004. Paul Kelly, Australian, 11 August 2004. Louise Dodson, SMH, 18 August 2004. Useful illumination through the fog of war are three publications from the US Carnegie Endowment for International Peace: WMD in Iraq: Evidence and Implications, January 2004; Jessica Mathews, ‘Inspectors have the real WMD clues’, Financial Times, 9 February 2004; and Jessica Mathews, ‘WMD and the UN’, address of 5 March 2004, all available on the Endowment’s website <www.ceip.org>. See the 2003 parliamentary debate in Senate Hansard, 18–20 March 2003, with the final vote recorded at pp. 9887–88. For the official record, see Senate Journals, 20 March 2003, item 22.The 2004 debate is in Senate Hansard, 30 March, pp. 22262–78 official recorded in Senate Journals, 141, 30 March 2004, item 22. See for example Kieron O’Hara, Trust: From Socrates to Spin, Icon Books 2004, pp. 1–5. Lord Hutton, Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly CMG, 28 January 2004, available at <www.the–hutton–inquiry.org.uk>. See more generally, Simon Lee, Uneasy Ethics, Pimlico 2003, pp. 181–210. My account draws on my earlier version in ‘Ethics and administrative responsibility: lessons from the Ponting case’, in Paul Keal (ed.), Ethics and Foreign Policy, Allen & Unwin 1982, pp. 98–118. For an account of Thatcher’s political ethics, see Amy Baker, Prime Ministers and the Rule Book, Politico’s 2000, pp. 54–58. Patrick Weller, Don’t Tell the Prime Minister, Scribe 2003, pp. 40–41; for a more general if very critical overview, consider Tony Kevin, ‘Foreign policy’, in R Manne (ed.), The Howard Years, New Inc Agenda 2004, pp. 291–313. See for example John Kerin,‘Spy boss washes hands of WMD “exaggeration”’, Australian, 19 February 2004. Philip Flood AO, Report of the Inquiry into Australian Intelligence Agencies, Canberra July 2004, p. 34. Mark Bovens, The Quest for Responsibility: Accountability and citizenship in complex organizations, Cambridge University Press 1998, pp. 163–64 and generally pp. 143–75. See for example Clive Ponting, Whitehall: Changing the old guard, Unwin Paperbacks 1989; and Secrecy in Britain, Basil Blackwell 1989. C Ponting, The Right to Know:The inside story of the Belgrano affair, Sphere Books 1985, pp. 74–75.

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15 ibid., pp. 83. 16 Quoted in R Norton-Taylor, The Ponting Affair, Cecil Woolf 1985, pp. 143–44 and in Ponting, The Right to Know, p. 82. 17 L. Freedman, Britain and the Falklands War, Basil Blackwell 1988, p. 52. 18 As quoted in Ponting, The Right to Know, pp. 143–45. 19 Freedman, Britain and the Falklands War, p. 54. 20 Ponting, The Right to Know, p. 96. 21 C Ponting, Whitehall:Tragedy and farce, Hamish Hamilton 1986, pp. 213–14. 22 Ponting, The Right to Know, p. 138. 23 ibid., pp. 142, 145. 24 ibid., pp. 150, 153–58. 25 Norton-Taylor, The Ponting Affair, p. 48. 26 JM Lee, ‘Editorial’, Public Administration, Journal of the Royal Institute of Public Administration, Summer 1985, p. 130. Compare John A Rohr,‘Ethics in the British Civil Service’, in Public Service, Ethics and Constitutional Practice, University of Kansas Press 1998, pp. 123–27. 27 Norton-Taylor, The Ponting Affair, pp. 78–85. 28 See Ponting, The Right to Know, p. 151. 29 Norton-Taylor, The Ponting Affair, pp. 101–10. 30 Ponting, Whitehall, pp. 15–19. 31 Printed in G Marshall (ed.), Ministerial Responsibility, Oxford University Press 1989, pp. 140–44. See also Peter Hennessy, Whitehall, Fontana 1990, pp. 344–46, 664–74. 32 Ponting, Whitehall, pp. 18–19, 28, 48, 241. 33 Lee, ‘Editorial’, Public Administration, p. 131. 34 Michael Codd, The Role of Secretaries of Departments in the Australian Public Service, Public Service Commission, Canberra 1990. 35 Management Advisory Board, Ethical Standards and Values in the Australian Public Service, Canberra, May 1996. 36 ibid., p. 8. 37 ibid., pp. 13, 16–17. 38 ibid., pp. 17, 20–21. 39 Onora O’Neill, A Question of Trust, Cambridge University Press 2002, pp. 70, 83–100.

Chapter 8 1

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3

Public Integrity: a quarterly journal sponsored by the American Society for Public Administration, the International City/County Management Association and the US Council of State Governments. According to the mission statement, Public Integrity ‘seeks to be the touchstone journal of ethical commentary and research for the public service’. An example of recent international benchmarking is E Glor & Ian Greene, ‘The Government of Canada’s approach to ethics’, Public Integrity, 5(1) 2003, pp. 39–65. An example of this approach is Thomas Nagel, ‘Ruthlessness in public life’, in Stuart Hampshire (ed.), Public and Private Morality, Cambridge University Press 1980, pp. 75–91. See also Stuart Hampshire,‘Public and private morality’, in Morality and Conflict, Blackwell 1983, pp. 101–25. G Calvin Mackenzie with Michael Hafken, Scandal Proof: Do ethics laws make government ethical? Brookings Institution Press 2002, p. 172.

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I have reported on Australia for the US Center for Public Integrity’s inaugural rating of international systems of public integrity, known as the 2003 Global Access project; see <www.publicintegrity.org>. See also John Uhr, Creating a Culture of Integrity. Taking Democracy Seriously series No. 2. Commonwealth Secretariat 2003. See also Barry Hindess, Corruption and Democracy in Australia. Report No. 3 for the Democratic Audit of Australia. Australian National University 2004. Onora O’Neill, A Question of Trust, Cambridge University Press 2002, pp. 18–19, 50. An influential international authority is John Braithwaite; see for example ‘Institutionalizing distrust, enculturating trust’, in V Braithwaite & M Levi (eds), Trust and Governance, Russell Sage Foundation 1998, pp. 343–75. Of fundamental importance is Annette Baier, ‘Trust and antitrust’, Ethics, 96(2) 1986, pp. 231–60. A valuable source is JR Lucas, ‘The responsibilities of office’, in Responsibility, Clarendon Press 1993, pp. 182–203. On the duties derived from responsibilities, see Onora O’Neill, A Question of Trust, pp. 27–31. An exception is G Caiden; see for example ‘Dealing with administrative corruption’, in T Cooper (ed.), Handbook of Administrative Ethics, Marcel Dekker, 2nd edn, 2001, pp. 429–55. Good Australian accounts of corruption include Peter Larmour & Nick Wolanin (eds), Corruption and Anti-Corruption, Asia Pacific Press 2001; and Hindess, Corruption and Democracy in Australia. Consider Noel Preston & Charles Sampford, with Carmel Connors, Encouraging Ethics and Challenging Corruption, Federation Press 2002. See also W Richter, F Burke & J Doig (eds), Combating Corruption/Encouraging Ethics: A sourcebook for public service ethics, American Society for Public Administration 1990. Among the best sources is JP Dobel, Public Integrity, Johns Hopkins University Press 1999. See also Ruth W Grant, Hypocrisy and Integrity: Machiavelli, Rousseau and the ethics of politics, University of Chicago Press 1997; and Robert C Solomon,‘The meaning of integrity’, in Ethics and Excellence, Oxford University Press 1992, pp. 168–174. Stephen L Carter, Integrity, HarperPerennial 1996, pp. 171–72. Iris Murdoch, Metaphysics as a Guide to Morals, Penguin Books 1992, p. 325. One source is Stuart Hampshire, ‘Sincerity and Single-mindedness’, in Freedom of Mind and Other Essays, Clarendon Press 1972, pp. 232–56. T Cooper & ND Wright (eds), Exemplary Public Administrators: Character and leadership in government, Jossey-Bass 1992. Consider John Uhr, Deliberative Democracy in Australia: The changing place of Parliament, Cambridge University Press 1998, chs 7 and 8; and John Uhr, ‘Institutions of integrity: Balancing values and verification in democratic governance’, Public Integrity, 1(1) 1999, pp. 94–106. Note Charles Larmore, ‘The right and the good’, in The Morals of Modernity, Cambridge University Press 1996, pp. 19–40. A classic source is WD Ross, The Right and the Good, Clarendon Press 1930, from which extracts are republished in Robert L Arrington & James Rachels (eds), Ethics:The classic readings, Blackwell 1998, pp. 246–61. See WD Ross, The Right and the Good, ed. P Stratton-Lake, Clarendon Press 2002, pp. ix–l. Also of interest are P Stratton-Lake (ed.), Ethical Intuitionism: Re-evaluations, Clarendon Press 2002; and Robert Audi, The Good in the Right, Princeton University Press 2004. A more recent and rather different source of right/good distinctions is John Rawls, A Theory of Justice, Harvard University Press 1971, pp. 446–52. See for example Henry Sidgwick, History of Ethics, Macmillan 1967 (originally 1886), p. 11. Note also the alternative distinction between ethics and morality by Bernard Williams

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in Ethics and the Limits of Philosophy, Fontana 1993, pp. 6–7 and Morality: An introduction to ethics, Cambridge University Press 1993, pp. xiii–xiv. On the history of both concepts, see also Audi, The Good in the Right, pp. 5–11. Sidgwick, History of Ethics, p. 6. O’Neill, A Question of Trust, for example pp. 31–34. On Kantian integrity, see also Barbara Herman,‘Integrity and impartiality’, in The Practice of Moral Judgment, Harvard University Press 1993, pp. 23–44; and Roger J Sullivan, An Introduction to Kant’s Ethics, Cambridge University Press 1994. Consider RM Hare, The Language of Morals, Oxford: Clarendon Press 1952, pp. 144–62, 185–96. Allen E Wood, Hegel’s Ethical Thought, Cambridge University Press 1990, pp. 127–37, 195–208. Dorothy Emmet, Rules, Roles and Relations, Beacon Press 1975, pp. 167–82. See also Williams, ‘Good’, in Morality, pp. 38–47. Iris Murdoch, The Sovereignty of Good, Routledge Classics 2001, 41; on the right/good distinction, see also p. 52. Emmet, Rules, Roles and Relations, p. 158. O’Neill, A Question of Trust, for example pp. 57–59.

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accountability 20, 24, 26, 28–29, 43, 46, 74, 91–92, 120, 133, 139, 140, 142, 148–50, 155, 167–68, 177, 180, 195 agencies 3, 154–55 agony of 184 anti-corruption orientation balance with responsibility 43, 44–46, 60, 91–92, 132, 133, 148, 155, 189–90, 192 Commonwealth public service statement on 143 ‘culture of accountability’ 196 external checks 197, 205, 211 forms 47 mechanisms 189, 191, 197, 204 models 121 negative mechanisms 46 obligations defined by EARC 132 over Iraq war 163 personal accountability 190 reserved as check against lapses 197 see also Coombs Royal Commission Administrative Appeals Tribunal 149 adversarialism 21, 90, 98 American alliance as military and economic fence 103 Australia’s enemies and friends 104 Anderson, John 14 Andren, Peter 111, 112–13, 114–15 comparison with Pauline Hanson

112–13 anti-corruption versus pro-ethics 197–204 Argentina 164, 168–69 Aristotle 39, 60, 67, 68, 69–73, 81, 86, 105, 211 ethics and politics part of a larger whole 70 Politics 72, 73 see also prudence; prudential leadership Armstrong doctrine 179, 181 civil service duty of trust 178–79 duties of officials instrumental to ministerial will 179 duty to promote government policies 179 focus on political management of information 178, 179 ‘politicisation’ 180–81 Armstrong memorandum 177–78 Armstrong, Sir Robert 177–78, 180 asylum-seekers 104, 110, 124, 165 Athens 72, 86, 204 Australia academic and literary circles 55 as generating debate on ethics 50 as haven for popular sovereignty 52 as pioneer and model of democratic governance 49–50, 51–52 as site for social experiment 54 material richness and political poverty 101

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political development 51 Commonwealth, the 44, 78, 119 Federation 51, 54, 56 political leadership combined with popular civic duty 52 political order 53 system of government 77, 80, 148–49; see also Coombs Royal Commission tradition of state paternalism 56 see also Jones, Henry Australian Constitution 51, 53, 76, 77, 80–81, 102 constitutionalism 132, 133 framers of 82–83 legitimacy of constitutional order 193 Australian Customs Service Australian Democrats 115, 162 Australian Labor Party 52, 90, 91, 99, 101 ALP caucus 113 consequences of ALP machine organisation 102 damage from experiments in social policy 104 leadership 104 opposition 113, 125 Australian National Audit Office, contribution to ethical responsibility 155 Australian Prudential Regulation Authority (APRA) 67 Australian public service commissioner 150 Australian Securities and Investment Commission (ASIC) 67 banking sector 67–68 Banks, Norman 125 Barns, Greg 106, 108 Barrie, Admiral 126 Barton, Sir Edmund 82 Beattie, Peter 23 Queensland government 23 Beazley, Kim 97, 99, 113 Bennett case 155–56 Bentham, Jeremy 66 Bjelke-Petersen, Sir Johannes 111 Blair,Tony 92, 93, 96, 114, 162, 180 Hutton inquiry 163–64 political opponents of 163

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Brett, Judith 93 Britain Civil Servants and Ministers 1986 179 Civil Service Code 177, 179 compared with Australia 52 co-responsibility for Iraq war 161 House of Commons 175, 180 Industrial Intelligence Centre 176 Ministry of Defence 170, 177 Official Secrets Act 164, 173, 179 traditions of responsible parliamentary government 51 see also Falklands War British idealists 54 British Liberals 55 British public service ethics 164 Brown, Bob 115 Bryce, James 44, 50, 51–54, 55, 60–61, 73–78, 87, 89, 101, 103, 192–93 Modern Democracies, 1921 51 bureaucrats 10, 39, 139 ties to politics 139 Bush, George senior 67 Bush, George W. 93, 162 Bush government 124–25, 160 political oponents of 163 Callaghan, James 93 Canada 109 Canovan, Margaret 110 Carter, Stephen 199 Castles, Frank 50 Chaney, Fred 113 Churchill, Sir Winston 86, 175 Cicero 66, 206 ‘children overboard’ affair see Howard, John citizens 77 civic leadership 77 disaffected citizens 89–90 ethical leadership by 15, 50 in ancient democracies 22, relations with government 30–31 rights and duties 75, 84 sovereignty 84 trust by 10, 14, 40–41 citizenship 54–55, 60, 74, 76, 77, 84 as theme of British idealism 54

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ethos 84 importance of leaders in shaping 84 civic values 100–101 Clinton,William 96 Codd, Mike 181 codes of conduct 27–28, 194, 196, 197 codes of ethics 26, 45, 140–54, 177 compromises between accountability and responsibility 140, 142 ethics or conduct? 140 limitations 141 codes of law 45 Commonwealth parliament absence of code of ethics 147 privileges committees as conscience 147 community 77 community trust 182 ‘constitution of leadership’ 82–83 Coombs Royal Commission, 1976 report 148–50 redefined Australian concept of responsible government 148 Cooper,Terry 202, 203 Costello, Peter 99 courts, the 115, 155 Crime and Misconduct Commission (CMC) 33, 131 Dalyell,Tam 170, 171, 173, 175, 176 Deakin, Alfred 54, 55, 74, 82, 84, 101, 103 as exceptional in Australian public life 101 debate, public 35 Defence Intelligence Organisation (DIO) 166 deliberation 34, 35–36, 65, 68, 70, 73, 86–87, 89, 207 see also prudential leadership deliberative democracy 34 demagogues 70, 71, 75, 87, 89, 96–97, 193 difference from leaders 96 ‘divide and rule’ political management 96, 98, 108 factionalism 97 demagoguery 74, 89, 97 demagogy 89, 97

democracy 22, 58–59, 69, 76, 89 ancient democracies 22 as having institutional tensions 46 as requiring trust 19–20 civic virtues in 69–70, 75 constitutional democracy 75 education in civic virtue 193 equality principle: consent of the governed 47 ideals 21 populism a deviation from 110 representative democracy 11, 76 see also Aristotle; Athens; Pericles democratic constitutionalism 193 democratic elitism 78 democratic government 14, 19, 28–29, 40, 46, 70 Australia as democratic nation 41, 443 delegation of trust, discretion etc. 23 democratic politics 136 democratic society 54–55 distrust 19, 20, 21, 23, 30–31, 44, 89–90, 189, 195 scepticism 33, 189, 205 Dobel, JP 86 Downer, Alexander 90 EARC see Qld Electoral and Administrative Review Commission elections 21, 47 as about trust 11 information and misinformation in 22 electoral system 112 elitism 78, 89 political elites 91, 110 Emmet, Dorothy 208 Engineers case 102–03 equality principle 47 equity 153–54; see also public officials ethical conduct a matter of interpersonal relations 26, 183 a matter of personal self-regulation 192, 211 and the law 154, 191–92 good as opposed to right conduct 37, 205–08; see also Kant, Immanuel;

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Hegel, GWF importance for healthy political life 69 in public life, defined 136 ministerial conduct 143–44 ministerial misconduct 45, negative or positive definition of 40 of public figures 78–79 personal conduct 26, 209 personal values 153 public conduct 19, 38 ethical idealism 57–58, 68, 192; see also Jones, Henry; political idealism ethical liberalism 57; see also Jones, Henry ethical practice 39–40 ethical public conduct, standards of 23, 33, 38, 41, 66, 148–54, 196 see also Coombs Royal Commission ethics 10, 19, 27, 30, 31–32, 60, 69, 161, 194–95, 190–209 abuse of 19 a deeply personal issue 183 a political and a moral issue 150 analysts of 197–99 Aristotle’s term ‘ethics’ 206; see also Cicero as about relationships 183–84, 209 as depending on personal character 24, 26 as legal compliance 31, 33, 38, 133, 136, 141, 142, 178, 184, 190–91, 197–99, 206 as solution to maintaining public trust in government 189 as test of compliance 206 Australian rules for 32 change in ethics regimes 155 conflict of duties as distinct from interests 150 conflicts of interest 130, 142, 147 debate between idealists and realists 43 defined against standards of justice or integrity 39 definition of 37 Ethical Standards and Values in the Australian Public Service 1966 143, 181–82 ‘ethics in government’ policies 46

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‘ethics of office’ 78–79 good for government? 193 guidelines on 29, 40, 46, 150 Howard government’s defence of 121 in public agencies 133 increasing regulation of 23 institutional ethics, concrete principles of 191 international debate on 9 language of 28, 29 laws 46, 59, 191–92, 196–97 legal regulation 24, 28, 31, 46 misleading of people over Iraq 160 misunderstood as instrumental rather than inspirational 193–94 negative approach to 195 personal ethics the highest expression of ethic of responsibility 190 politically controversial 159 positive emphasis on public benefit 38–39 requires substantial degree of trust 192 resistance to external ethical schemes 159 role ethics 78, 133, 210 self-regulation 20, 24, 30, 31, 41, 136, 155 ‘taking ethics seriously’ 20, 23, 27, 37, 43, 66, 68, 137, 189–90, 193, 204–05 universal ethical system 191 ‘virtue ethics’ 203 ‘you can’t legislate ethics’ 191–92 Evatt, HV 54 executive government/officials 26, 46, 69, 78, 80, 111, 120 executive supremacy 79, 81 Fahey, John 127 fairness 153; see also public officials Falklands War 164, 168–70, 183 General Belgrano incident 169–70, 171 UN resolution on 169 Federal Court 125 intervention in government administration 155–56 federal police commissioner 150 federalism 53, 83, 149

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Federation 50, 51, 54, 56, 82 Flood, Philip 166 France 168 Fraser, Malcolm 21, 98, 99 Fraser government 145, 181 Bowen inquiry 145 freedom of information 149 ‘gang of 43’, letter 2004 160 Iraq decision a deception of Australian people 160 ‘good governance’ 195 Goss,Wayne 128 governing majorities 35 government by consent or assent 48 capacity-building 77, 83 deceit and hypocrisy in 32 Department of Prime Minister and Cabinet 123, 165 difference between popular and party government 52; see also Bryce, James distinction between party and parliamentary government 81 diversity of 154 ethics policies 19 friends and foes 159 leaders taking initiative in debate over trust 12 mandates 121 misconduct 20, 32, 59 power of incumbency 22, 23 power over mass communications 47 public legitimacy 47, 48 rarity of change of governments 11, 22 reliability 49 scrutiny 32 ‘opinion formation’ by 47–48, 98, 102, 103 terms for measuring community support 48–49 trust contracts 28, ‘trust us’ plea 12, 13, 21, 29, 30, 31, 32, 89, 120, 142 truth in 12–13, 160 unrepresentative government 195 Gration, General Peter 160

Grattan, Michelle 108 Great Depression 98 Greens 162 Greiner, Nick 126–30 Griffith, Sir Samuel 83 Guidelines on Official Conduct of Commonwealth Public Servants 150–51 Gun, Katherine 164–65 Hafken, M 192 Halton, Jane 126 Hancock,WK 101–03 Australia 101 Hanson, Pauline 90, 99, 108, 109, 110, 111, 112, 114, 131 comparison with Peter Andren 112–13 One Nation party 112 see also populism; populist leaders Hare, RM 206 Harradine, Brian 115 Hasluck, Sir Paul 139 Hawke, Bob 11, 90, 96, 98, 128 Hawke government 104, 108, 145, 181 Hegel, GWF 207 Heseltine, Michael 170, 171, 175, 183 Hewson, John 90, 108 Higgins, HB 83 High Court 80, 83, 156 Horne, Donald 77, 97–103, 107 Looking for Leadership 97–103 The Lucky Country 97–98, 99 House of Representatives 21, 78, 111, 112, 162 Houston, Air Marshall 126 Howard, John 9, 10, 26–27, 67, 92, 93, 96, 97, 98, 142–43 A Guide to Key Elements of Ministerial Responsibility 143–45 and responsible government 10 and the Iraq war 107, 122, 145 anti-refugee populism 113 as divide-and-rule leader 108, 125 as national leader 104 as populist leader 90, 103–09 as social conservative 93 border protection bill 113 ‘children overboard’ affair 13, 26, 13,

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26, 120–26, 145, 151, 155, 160, 161 code of ministerial conduct 25, 142, 147, 182 criticisms of 100, 107–15 deception over Iraq 160 devotion to Menzies tradition 99 election 1996 11 election 1998 107 election 2001 90, 97, 103, 107, 108, 113, 120–21, 123, 160–61 election 2004 9, 10, 12, 13, 21, 107, 122, 123, 146–47 gun control 100, 106 legacy of democratic populism 95 more than a classic populist leader 107 National Press Club address 2004 9, 10, 12, 122 outstanding conservative leader 114 ‘Pacific Solution’ 113 policy achievements 107 political and social cost of 108 political opponents of 163 popularity 107 takeover of radical national symbolism 93 tax reform 107 see also Scrafton, Mike Howard era 98 Howard government 89, 110, 183 actions over Iraq war 162 Charter of Budget Honesty 1998 145–47 claims about Iraq intelligence 166 Flood inquiry 166 closed to professional advice 161 damage to its integrity in 2001 120 ethical responsibility for decision on Iraq 166 fiscal policy 146–47 instilling fear of terrorism 125 rewrite of public service 141 hubris 67 Hughes, Billy 83 Human Rights and Equal Opportunity Commission 155 ICAC see NSW Independent Commission

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Against Corruption incentives versus sanctions 201–02 independents 112 individuals versus institutions 202–03 Indonesia 124 institutional checks and balances 36, 37, 53, 60, 77, 79–80, 85, 95, 132, 193 integrity 44, 92, 161 ethic of 178 in decision-making 36 in government 11, 12, 19, 159 integrity testing 204–05 of officials 120, 153 personal integrity 25, 36, 37, 46, 189–211 procedural integrity 36 professional integrity 180 public integrity 14, 19, 24, 25, 36, 37, 38–39, 46, 86, 131, 135, 189–211 contribution of personal integrity to 190–91 international reach 190 mediated by politics 26 theoretically underdeveloped 190 two distinct models 197–98 Public Integrity 190 values-based approaches to 202 wholeness 194 wholeness versus wholesomeness 200–01 see also accountability; probity; responsibility international politics 161 international war and peace 161 international warfare 159; see also national security Iraq war Australian co-responsibility for 161 ‘coalition of the willing’ 161 commitment of troops to 165 Inquiry into Intelligence on Iraq’s Weapons of Mass Destruction 2004 166 intelligence about 163, 166 issues 160–64 links between Iraq and terrorist threats 165 loss of confidence in Western leaders

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162 misinformation of the public 162–63 pretext for 161–62 Saddam Hussein 162 Isaacs, Sir Isaac 83 Jones, Henry 44, 50, 51, 54–59, 89, 192–93 Idealism as a Practical Creed, 1910 55, 103 model of ethical perfectionism 56 ‘mutual obligation’ versus self-interested individualism 55 relates personal to social ethics 193 social ethics as core requirement of democratic citizenship 55 judgment see political judgment/discretion judicial review of administrative decisions 149 judiciary, the 46, 53, 69, 78, 111 Kant, Immanuel 206–07 Kay, Dr David 161 Keating, Michael 181 Keating, Paul 10–11, 67, 96, 99 Keating government 104, 145, 147 criticism by Donald Horne 100 similarity to view of Howard 10 Kelly, Dr David 163–64 Kelly, Paul 103, 123, 160, 166 King, Martin Luther 199 Labor governments 22, 25 social theorising 55 management of economic change 100 Latham, Mark 90, 147, 162 National Press Club address, 2004 10, 12–13 ‘lattice of leadership’ 78–81, 91, 94, 106, 120, 155 lawfulness versus disobedience 199 legitimate subversion 201 leadership see political leadership legislation Crime and Misconduct Act 2001 (Qld) 33 Public Sector Ethics Act (Qld) 134–35, 198 Public Sector Management Act (Cth) 129

Public Service Act 1999 (Cth) 141–42, 151, 152 legislative ethics 129–30 legislative government/officials 26, 46, 69, 111 legislative supremacy 79, 81 liberal constitutionalism 79, 80–81 Liberal governments 22, 25 Lincoln, Abraham 86 Little, Graham 114 loyalty 201 Mack,Ted 147 McCowan, Mr Justice 176–77 McHenry, Jenny 122–23 Mackenzie, GC 192 Malouf, David 106, 107, 114 McMahon, Sir William 104 majoritarianism 75 tyranny of the majority 77 see also populism Malvinas see Falklands War Mandela, Nelson 86 Maddox Graham 115 Manne, Robert 114 Major, John 179 Marr, David 124–26 Dark Victory 124–26 Menzies, Sir Robert 22, 74, 84, 99, 102, 108 Metherell affair 126–30 Metherell, Dr Terry 127 ministers 40, 80, 178, 179, 180, 184, 194 abuse of power over public service 121 relationship with public servants 145 see also Coombs Royal Commission ministerial responsibility 167–68 ministerial staff 45 hidden power of 121 ministerial staffers 27 not bound by public service code 152 relationship with public servants 25 monocultural world of 1950s 100 Moore-Wilton, Max 123, 126 morality 204–09, 210 as test of character 206 distinction between ethics and morals 206–08, 210; see also Kant, Immanuel;

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Hegel, GWF moral authority 106 moral codes and social mores 210 personal morality 37, 196 public/state morality 57 Morton, Desmond 176 multicultural world of today 100 Murdoch, Iris 200, 209 National Party 102, 131 national security 104, 124, 159–85, 183 ‘war on terror’ 104, 109, 159, 161 ‘new public management’ (NPM) 168 New South Wales, State of 129, 130, 154, 198 news media 26 nous 67 NSW Independent Commission Against Corruption (ICAC) 120, 126–30, 131, 133, 198 NSW parliament 130 NSW parliamentary code 130, 135 NSW State government see Metherell affair NSW upper house ethics committee 130 O’Connor, Richard 83 O’Dowd, Bernard 101 Office of National Assessments (ONA) 165 oligarchy 76 ombudsman, the 149 O’Neill, Onora 183, 196, 206, 211 opposition, political 21, 22, 74, 139, 144, 146–47, 162 role of opposition leaders 79, 80 parliament 119, 135, 136, 144, 176 as branch of government 78 composition and powers 80 parliamentary ethics 136 parliamentary system 74 scrutiny by 160 see also Westminster system partiality and impartiality 35, 37, 38, 39, 41, 128, 134, 145, 181 Peacock, Andrew 90 Pericles 71–73, 81, 86–87 pretend-Pericles 81, 87

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personal character 15, 24, 26, 203 ‘people power’ 47, 48, 91, 92 people-smuggling 104, 124 Plato 204 policymaking 39 political decency in ordinary people 70 political decision-making 36–37, 71 political idealism 50, 54–59, 65, 66, 102 responsibility-based ethics as 44 see also Jones, Henry political judgment/discretion 26, 36–36, 37, 44, 45, 66, 68, 69, 73, 86, 129, 132, 133, 149–50, 151, 182, 192, 197, 211 see also prudence; prudential leadership political leadership 9, 43–61, 65, 67, 70–76, 78, 91, 98 as fetish threatening Australian democracy 111 as task of team-building 110–11 ‘constitution of leadership’ 82, 83 debates on legitimacy of leadership practices 93 dispersed/diffused leadership 79, 81–83, 91, 95, 105, 111–13, 114–15 envy of foreign leaders 114 immoderate expectations about 82, 105–06 lack of attention to institutional framework of 105 leadership gurus 94, 114 leadership heroes 94 leadership styles 93 limits to 84–85 mediocre quality 101–02 models 65, 79, 95–96 not to be confused with power 112 personalities of leaders 92, 104–05 preoccupation with personality 104–05 qualities of character and morality 74, 76, 92 ‘tall poppy’ syndrome 105 see also ‘lattice of leadership’; populist leadership political mandates 35 political morality 23, 74 political parties 76–77, 80, 91, 102, 130, 136

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party government 76 party leaders 77 right-wing parties 89, 102 political power, restraints on 77–78, 95 political realism 50, 51–54, 59, 65, 68, 73, 102, 192–93 accountability-based ethics as 44 see also Bryce, James political system, Australian 11, 21, political will 24–26, 44–45 politicians 10, 11, 14, 21 politics Aristotle’s view of 71 as a way of life 10, 24 fundamental to national development 9 Ponting affair 164–81 Ponting, Clive 164–65, 167–68, 171–77, 179, 183, 184–85 trial of 173–77 Ponting principle 165, 167 popular sovereignty 193 populism 52–53, 65, 74, 77–78, 90, 102–11, 114–15, 193 as leadership construct 90–91 as leadership strategy 109–10 as reactionary 75 autocratic populism 95 conservative populism 89 debate over 103–09 definitions 110 democratic populism 95 opposite of prudence 92 pathologies 109–11 ‘race to the Right’ 90 populist leaders 40, 52, 71–72, 94–97, 114–15 populist leadership 66, 75, 89–115 denied by those who employ it 110 distinguished from popular leadership 109, 113 left-wing version 93 Port Arthur massacre 106 preferential voting 112 ‘presidentialism’ 90, 92–93 presidentialisation of British politics 92–93 presidentialisation of Canadian politics

92 prime minister constitutional silence on 80, 82 office of 9, 82, 83, 85 power of 94, 105, 111, 114 presidential government 82 prime ministers 40, 84–85 probity 11, 12, 13, 39, 194 virtue versus probity 203 professionalism, meaning of 153 protectionism 56, 101 a new protectionism 103 as central to Australian political order 102–03 see also Hancock,WK; Jones, Henry prudence, virtue of 66–73, 81, 85, 92, 151, 197, 211 focus on justice 71 opposite of populism 92, 94 prudential leadership 41, 60, 65–73, 75, 76, 78, 86, 91, 92, 94, 148, 211 principles for coping in absence of 81–82 public service version 153 public/community opinion 77, 97, 106, 114, 185 public confidence 14, 28, 29, 48, 143–44 public duty 37, 59, 84 versus private interest 46, 194, 204 public good 11, 35, 58 public interest 11, 15, 33–37, 40, 49, 134, 136, 179, 183, 204 as opposed to private interest 34, 46, 200 collective interests 35 concept 34, 35, 39, 200 link with impartiality 35 majority interests 35, 77 primacy 135–36 use of appeals to 34–36 public office 132, 133 public officials/servants 14, 27, 32, 40, 148–54, 2-0 as moral exemplars 145 breaches of official integrity 178 career public servants 33, 129, 145 categories of responsibility 178

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commitment to equity 153 conditions of employment 195 conduct 37, 39–40, 134, 145 conscience 177, 196 contrasted with compliance 196–97 conscientious disagreement with government policy 166; see also Wilkie, Andrew corruption 20, 38–39, 196 difficulties in role 27 duty of public comment 153 ‘duty of trusteeship’ 132 duty to speak up 184 ethic of answerability 167 ethic of honesty 167 ethical standards for 132 ethics of role of 15, 37, 191, 205; see also ethics: role ethics government manipulation of 180 impersonal nature of professional conduct 210 merit system of public service 128–29, 145 new ethic of ‘responsiveness’ 141, 151, 182 observance of rules of natural justice 153 political neutrality 25, 41, 132, 139, 153, 181 relationship with ministers 145 senior public servants 40 sense of duty, fostering of 196 unauthorised conduct see also morality; Ponting affair; Scrafton, Mike; unethical conduct public policy 11 public power, unequal distribution of 47 public sector 28 public sector system 201 public service as distinct from government service 134 core principles of management 134 independence of 146 public transparency 110 public trust 30, 132, 133–34, 155, 182 as consistency 11–12, as deriving from reliability 12,

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as integrity 11–12, 13 as theme of elections 21 corrosion of 20 ruined by deception 183 Pym, Francis 169 Queensland, State of 110, 130, 134, 154, 198 core principles of Queensland legislation 134 Fitzgerald Inquiry 131 pro-ethics orientation 131–36 Statement of Fundamental Principles 135 Qld Electoral and Administrative Review Commission (EARC) 131–34 public office as primary category 132 Rayner, Sir Derek 170 reconciliation, principle of 154; see also public officials ‘rectitude’ 194 Reid, Sir George 82 Reith, Peter 121, 125, 126 Reserve Bank of Australia 67 responsibility 24, 26, 28–29, 30, 43 balance with accountability 43, 44–46, 60, 133, 148, 155, 189–90, 192 internal checks of responsibility 197, 205 of public officials 24 over Iraq war 163 personal responsibility 190, 195–97 preferred over accountability 197 pro-ethics orientation 192 regulatory mechanisms 191 responsible government 30, 74, 76, 119–37 derived from Westminster system 119, 132 models 119–20 moral responsibilities of ethics of public office 132 truncation of ministerial responsibility 149; see also Coombs Royal Commission Rinnan, Arne 126 Roosevelt, Franklin 86, 98 Ruddock, Phillip 105, 115, 126 rule of law 69, 80–81

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Sartori, Giovanni 96 Sawer, Marian: The Ethical State: Social liberalism in Australia 50 Scrafton, Mike 13, 14, 121–22, 160 secrecy 20, 110, 170, 174, 183 self-interest 36, 37, 66–67, 134, 204 Senate 21, 78, 80, 107, 111, 112, 162 Biographical Dictionary of the Australian Senate 83 control of 14, 121 inquiry into ‘children overboard’ affair 121, 125 privileges committee 147–48 separation of powers 53, 79, 83, 91, 119 Shils, Edward 110 Sidgwick, Henry 67, 206 sincerity 200–01 social democracy/democrats 91, 96, 109, 115 social-democratic governance 94 social-democratic elite 114 social-democratic values 91 social philosophy 55 Socrates 204 Solomon, David 112 soul/spirit 207 Spain 168 state, the ‘enabling state’ of British idealists 55 welfare state 55 State government(s) 103, 119, 131 States, the 78, 107, 111, 119 statesmanship 71, 73 see also Aristotle; prudence; prudential leadership Stone, John 123 Tampa affair 120, 124 ‘Tampa tantrum’ 90, 115, 124 temptation versus inspiration 203–04 ‘terms of trust’ 12–15, 19–21, 23, 27–31, 33, 41, 45, 48, 60, 89, 119, 121, 136, 137, 155, 159, 163, 189, 193, 209, 211 Thatcher, Margaret 93, 170 Thatcher government 164, 168, 169 The Bulletin 98

‘the people’ 46, 69–70, 74, 75, 91, 110 ‘the nation’ as a concept 10–11 benefit of 14 nature of 12 Thucydides 86–87, 91 Transparency International 202 turmoil of contemporary world 108 unethical conduct 46, 136 disinterestedness 128 negative orientation of former codes 38–39 political corruption, studies in 66 undue influence on officials by politicians 128 see also government; Metherell affair; partiality and impartiality; public officials United Kingdom 93, 109, 162 United Nations 161 resolutions against Iraq 161 UN Charter 169 UN Security Council 164 weapons inspections in Iraq 164 United States 28, 92, 93, 98 compared with Australia 52 US Congress 161 co-responsibility for Iraq War 161–62 traditions of federal divisions of powers under a constitution 51 ‘values’, government discussion over 210 values-based legislation 182 values-based public administration 132–33 Vizard, Steve 105 voters 48, 78, 92, 107 confidence in parties 12, 22 Walden, George 109, 113 Washington 124 Weller, Patrick 123 Westminster system 119, 149, 152, 181, 132 bicameral structure 53, 83, 119, 149 ethos 152 forms 119 no longer relevant 149, 150; see also

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Coombs Royal Commission norms about neutrality of public service 167 see also separation of powers 119 whistleblowing 152, 177 Whitlam, Gough 21, 74, 84

Whitlam government 22 Whittle, Laura 123 Wilenski, Peter 152–53 Wilkie, Andrew 165, 166–67 Wilkinson, Marian 124–26 Dark Victory 124–26

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In Terms of Trust John Uhr poses and answers fundamental questions about our governments’ leadership: • How can we make political leadership compatible with ethical leadership? • How relevant is personal character to public life? • Why do we need to widen the scope of ‘leadership’ to include all public officials and not just those at the top? • And, how can citizens become more informed about the extent of government trustworthiness? With such questions and answers in mind, Australians can now get down to business and spell out the ‘terms of trust’ compatible with the exceptional high hopes – but also the everyday low practices – of our democracy. Terms of Trust is the first book-length analysis of the role of ethics in Australian government. It scrutinises what actually happens in practice against the democratic theory and identifies strengths and weaknesses of public-sector ethics. UNSW PRESS ISBN 0-86840-639-2

T ER MS OF T RUST

Public trust in Australia’s governments and our political leadership is at an all-time low, according to many opinion polls. Shaken by years of broken promises, political spin, shady deals, obfuscation and even brazen lies, many consider the condition terminal. John Uhr says the situation is not irretrievable, though serious and immediate consideration needs to be given to finding means by which our political leaders can re-earn the confidence of the community.

Uhr UNSW

9 780868 406398

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PRESS

John Uhr

Ter ms of

TRUST Arguments over ethics in Australian government

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