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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-05-17 Daily Xml
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Resolutions

Statement of Principles for Members of Parliament

Consideration of Message No. 88 from the House of Assembly, in response to which the Hon. K.J. Maher moved:

That this council—

1. Notes the resolution passed by the House of Assembly in adopting a statement of principles for members of parliament.

2. Adopts the following statement of principles for members of the Legislative Council—

(a) Members of parliament are in a unique position of being accountable to the electorate. The electorate is the final arbiter of the conduct of members of parliament and has the right to dismiss them from office at elections.

(b) Members of parliament have a responsibility to maintain the public trust placed in them by performing their duties with fairness, honesty and integrity, subject to the laws of the state and rules of the parliament, and using their influence to advance the common good of the people of South Australia.

(c) Political parties and political activities are a part of the democratic process. Participation in political parties and political activities is within the legitimate activities of members of parliament.

(d) Members of parliament should declare any conflict of interest between their private financial interests and decisions in which they participate in the execution of their duties. Members must declare their interests as required by the Members of Parliament (Register of Interests) Act 1983 and declare their interests when speaking on a matter in the house or a committee in accordance with the standing orders.

(e) A conflict of interest does not exist where the member is only affected as a member of the public or a member of a broad class.

(f) Members of parliament should not promote any matter, vote on any bill or resolution, or ask any question in the parliament or its committees, in return for any financial or pecuniary benefit.

(g) In accordance with the requirements of the Members of Parliament (Register of Interests) Act 1983, members of parliament should declare all gifts and benefits received in connection with their official duties, including contributions made to any fund for a member's benefit.

(h) Members of parliament should not accept gifts or other considerations that create a conflict of interest.

(i) Members of parliament should apply the public resources with which they are provided for the purpose of carrying out their duties.

(j) Members of parliament should not knowingly and improperly use official information, which is not in the public domain, or information obtained in confidence in the course of their parliamentary duties, for private benefit.

(k) Members of parliament should act with civility in their dealings with the public, minister and other members of parliament and the Public Service.

(l) Members of parliament should always be mindful of their responsibility to accord due respect to their right of freedom of speech with parliament and not to misuse this right, consciously avoiding undeserved harm to an individual.

And that upon election and re-election to parliament, within 14 days of taking and subscribing the oath or making and subscribing an affirmation as a member of parliament, each member must sign an acknowledgement to confirm they have read and accept the statement of principles.

(Continued from 14 April 2016.)

The Hon. R.I. LUCAS (17:17): I rise to speak on the issue of the statement of principles for members of parliament. In the first instance I note that, despite the kind invitation from the House of Assembly that we should, in essence, agree to a decision that they have taken in relation to the statement of principles for members of parliament, we in this chamber will alternately be noting the resolution that was passed by the House of Assembly in adopting a statement of principles for members of parliament in the House of Assembly.

Appropriately, as a separate house, members of the Legislative Council will adopt (or not adopt) a statement of principles which apply to the Legislative Council. That is, indeed, appropriate. Certainly, Liberal members support that aspect of the motion that is before the house and moved by the Leader of the Government on behalf of government members.

Given that it has been moved in that way, clearly the Leader of the Government at the very least, if not all the members of the government in this chamber, also accepts that that is the appropriate course of action to be followed in terms of any resolution that this chamber might wish to adopt in relation to the way members should or should not behave.

I have to say at the outset that, over my period in this parliament, I have not been a strong supporter of codes of conduct or statements of principles for members of parliament. The history of the debate about the statement of principles, which was championed by the late Dr Bob Such, and some other members of both the Liberal and Labor parties over the years, has been canvased in the debate of the House of Assembly.

But, put simply, a number of years ago now there was a select committee that looked at the notion of a code of conduct or statement of principles and in the end it came back recommending not for a code of conduct but for a statement of principles. I know that my former colleague, with whom I had and still have very high regard, the Hon. Rob Lawson, sat on that particular committee. He had a very strong view that it should not be a code of conduct, it should be a statement of principles, if we were to have anything at all, in relation to governing our behaviour.

As I said, my position in the past has been that ultimately the behaviour of members of parliament is judged with or without a statement of principles or a code of conduct in the first instance by our electors. In the House of Assembly it is obviously the small number of electors in the individual electorates and in the Legislative Council we are judged by a statewide vote.

However, more particularly in terms of allegations of poor behaviour or bad behaviour or improper behaviour, we are judged ultimately by our peers and our processes in this place. There are opportunities for privileges committees, more common in the House of Assembly than in the Legislative Council, and also censure motions, no-confidence motions—particularly in relation to ministers—where members can express a point of view about the behaviour of an individual member of parliament.

Equally, of course, members are entitled, through various opportunities, to stand up and place on the public record their individual concern about the behaviour of any other member in the chamber or, indeed, in another chamber, by way of motion or discussion on a bill, for example, if it is appropriate, but more particularly in relation to a specific motion, if you were expressing concern about the behaviour of an individual member.

That has been the position that I have adopted over many years. However, the select committee that supported a statement of principles, which included both Liberal and Labor members, and discussions my party room and the government party room have had over a number of years have meant that there has been this emerging consensus, a majority view that has overwhelmed many of us that says that, whether or not these things in practice will mean much (and I will discuss that in a moment), the reality is that there is a public clamouring—perhaps that is too strong a phrase—a public acceptance that it is a good thing that members of parliament are governed in some way by a code of conduct or a statement of principles.

To that end, our party room and the government party room and, in particular, those who negotiated on these issues as part of a range of other discussions which transpired last year between the government and the opposition on a range of issues, some of which have been made apparent and others which are still to emerge, it was certainly the strong view of the Premier and the Attorney-General that as part of that package of measures they believed that acceptance from both the major parties and all members in the end, of a statement of principles, was an important part of that negotiated package.

It was within that context that those lingering doubts that I had as an individual were overwhelmed by the greater good that was expressed in those discussions and negotiations between the government and the opposition. The final view that was taken by our Liberal Party party room was that as part of that negotiated package, as part of that range of issues that was discussed, we should all adopt a statement of principles and a code of conduct. So I am now a card-carrying, flag-waving advocate for the statement of principles that is before us today and, on behalf of Liberal members, will be indicating our support for the statement of principles.

One of the issues that concerned me and a number of my colleagues, I have to say, and which did delay these issues somewhat, was a very strong view that I had, and some of my colleagues had, as I said at the outset, that our behaviour in my view ought to be governed, firstly, by our electors and, secondly, by our peers and colleagues, in terms of the processes of our house.

Certainly, when it came to the issue of the code of conduct, one of the concerns that I and some other members had was the way the ICAC was being utilised to investigate and to take action in relation to breaches of codes of conduct by public servants. I have previously—and I will not waste the time today to provide the detail—given the indication where public servants who had provided information in the public interest, they believed, to members of parliament were being pursued by the ICAC on the basis that they had breached a code of conduct.

Certainly, I and a number of my colleagues trenchantly opposed any notion that if this was to be a code of conduct any day of the week a claim could be made to the ICAC to say that an individual member of parliament had breached a code of conduct and that the ICAC should be investigating a breach of a code of conduct as they do investigate breaches of codes of conduct for public servants.

I can happily outline that the Attorney-General shared those particular views. In the discussions that ensued it was made quite clear, and other legislative changes which are to be taken have made it quite clear, that any claim about a breach of a statement of principles in this case from members will not be an issue to be investigated by the ICAC. It will be an issue to be resolved by the individual chambers. If there is to be a claim of a breach of the statement of principles in this house, it will be for an individual member to prosecute that case. As I said, there are a number of opportunities for that by way of motion and speeches, and ultimately censure or no-confidence motions, but there is also the capacity for a privileges committee in this particular chamber as well.

With that issue having been clarified, that is, that this remains an issue for members and their colleagues to, in essence, oversight and police, that took away some of the concerns that many of us had in relation to the issue. The only other comments I would make are in relation to the usefulness or not of a statement of principles in the first case. I guess I would return to some of some of the concerns I had over a number of years about these things.

When one looks at the statement of principles, clearly a number of elements of this are simply unarguable. Some are already covered by either our standing orders or legislation in relation to conflicts of interest, for example. Other elements of this particular statement of principles are clearly just common sense, that members have a responsibility to maintain the public trust placed in them by performing their duties with fairness, honesty and integrity subject to the laws of the state and rules of the parliament and using their influence to advance the common good of the people of South Australia.

I am not sure that there will be too many people who can argue against such a lofty statement of high principle. Whether all of us will, either in our own judgement or in the judgement of our colleagues and peers, ever meet that lofty standard, is a moot point. Nevertheless, it is hard to argue against some of those elements of the statement of principles which are so broad and so lofty in their goals as to be, in my view, unarguable.

It is also interesting that—and the government drove this particular process—element (c) of the statement of principles says:

Political parties and political activities are part of the democratic process. Participation in political parties or political activities is within the legitimate activities of members of parliament.

This impinges in part on a debate that has gone on and will continue in relation to, for example, use of global allowances. When one looks at the global allowances, it applies to House of Assembly members and in particular it applies to federal members. It acknowledges that an individual member of parliament is also a member of a political party and has some activities that he or she needs to undertake which will involve the use of some of the resources that are available to the member's office.

If it is just as simple as the telephone that is paid for by the taxpayers, and one takes a telephone call from a party member in relation to a party issue, on a strict legal interpretation there might be some argument in relation to whether or not that is appropriate if the guidelines for the global allowance say that you cannot use any public expenditure of your global allowance, in essence, on political activities or campaign activities or activities that relate to your political party.

It is interesting that in this particular statement of principles, the government has asked us, and we are prepared to support, that we are acknowledging that participation in political parties is an important statement of principle in terms of the behaviour of members of parliament. I suspect this particular element (c) will be part of an ongoing debate in relation to the appropriate use of resources through global allowances and other areas as well.

The conflict of interest provisions are, in my view, hard to argue with and in many cases are already required of us, as I indicated earlier. Although there is one, element (h) of this particular statement of principles, which says: 'Members of parliament should not accept gifts or other considerations that create a conflict of interest.' That is a very broad statement. Under the other restrictions that apply to members of parliament, there is generally some sort of value placed on gifts above a level, whether it is $500 or $700 or something. It tries to get across the notion that if someone buys you a sandwich at the Myer food court, or gives you an inexpensive bottle of red wine—not Argentinian and not Grange—for speaking at a particular event, that, whilst it is a gift, it is not of high value and therefore unlikely to influence your behaviour.

It is interesting that this statement of principles does not put a monetary limit on gifts. It just says 'should not accept gifts…that create a conflict of interest.' So I guess the argument would be whether a gift that is worth $100 or $200 or $400 creates a conflict of interest. Some may assert that it does and seek to use the statement of principles as an argument to say this created a conflict of interest, and I am sure the person who the assertion is made against would deny that it involved a conflict of interest at all. But there is some looseness in terms of the language in this which is different from our requirements to declare gifts under our pecuniary interests register each year. So there is a difference there.

As I summarise my comments on this, the point that I am going to make is that this should be an evolving document. It may well be, with the passage of time, we look at various elements and decide that, as wonderful as we thought they were at the time, maybe it makes more sense for them to be amended. It will be the purview of this chamber, if it so chooses, to amend the statement of principles in the future. It is not as if this particular decision that we take in 2016 need bind us forever and a day. It is an issue that can evolve and, with experience, I hope would evolve. We can improve it if need be in some areas.

Element (k), which is one which a number of members will have some challenge abiding by, I suspect, is: 'Members of parliament should act with civility in their dealings with the public, minister and other members of parliament and the Public Service.' Recent evidence to the Gillman ICAC inquiry, which documented the relationship between minister Koutsantonis and senior public servants and the language that was used in every day meetings between the minister and public servants, would seem to indicate that someone could, under this statement of principles, lodge a complaint that they had not been treated with civility from their minister to the public servant.

Many members have complained or squealed about other members of parliament who have been mean to them in terms of their use of language. I say that advisedly, looking at some members of the Labor Party across the chamber at the moment. There are some members in this chamber who squeal more often than others in terms of people being mean to them, with accusations of incompetence, negligence or poor performance.

How will that be policed as a statement of principles because, with the greatest of respect, it is in the eye of the beholder or the receiver in what is the bear pit, in my view, of public office and the particular language that is used in terms of one member against another member. I am sure some members would feel that that breaches element (k) of the statement of principles because they have not been treated with civility by another member and might seek to take some action. I cannot see that it will ever get anywhere. It again raises some interesting questions, but in the end I cannot see that there will be any useful resolution of those complaints at the end of any process that someone might wish to initiate.

There are a number of other elements on which I could comment, but I do not intend to. I just briefly highlight those four or five to indicate again, in conclusion, that whilst Liberal members, as part of the discussions we had with the government last year, have indicated our willingness to support a statement of principles for members of parliament, in my view we should do so with an open mind. In my view, we should do so with the willingness to monitor how this statement of principles operates over a period of time and, in my view, after that appropriate period of time we should revisit the wording with sensible discussions between the government and the Liberal Party and other parties represented in this chamber.

It makes sense with these things to get the greatest degree of consensus as is possible on these particular issues, and it may well be that more appropriate wording can be developed with the passage of time. With that, I indicate on behalf of Liberal members our support for the motion to adopt a statement of principles on behalf of members in this chamber.

The Hon. M.C. PARNELL (17:38): This motion is a nonsense. It is an absolute nonsense and I will not be voting for it. What I can tell you is that I have signed it and, shortly, I will present the Clerk with a copy of the statement of principles with the last four lines removed, and I will explain why I have done that. The actual merits of most of the various items that are included in this statement of principles, as the Hon. Rob Lucas has said, are either a statutory requirement, part of our standing orders or sheer common sense and rules of courteous behaviour.

I will not go through all of them, but I do agree with the Hon. Rob Lucas that they could do with some work; I think they could be cleaned up. For example, the honourable member referred to the conflict of interest provision which, on the version I have, is paragraph (viii): 'Members of parliament should not accept gifts or other considerations that create a conflict of interest.' I agree. My favourite conflict of interest was the Hon. Russ Hinze, a larger than life character in the Queensland parliament. He was known as the colossus of roads; he was in fact the minister for roads. He was also the minister for racing. He was approached and it was said, 'But, minister, you own racehorses. How on earth can that not be a conflict of interest?' He said, 'No, it just proves how much I know about the industry and why I am the best-qualified person to be the minister for racing. I am a racehorse owner.' He was someone who made or lost money as a result of his private activities and yet he was the minister for racing.

We could look at issues such as not accepting gifts and donations. What about political parties? Is it appropriate for the Labor Party to take a couple of million dollars from Mr Lang Walker and then deliver him on a platter the Buckland Park development or the exclusive rights to develop the Festival Plaza and build the second-tallest building in Adelaide on public land? Is that something we should put in this code of conduct?

Members interjecting:

The Hon. M.C. PARNELL: That has got the members opposite worked up. The reason that I say this—

Members interjecting:

The Hon. M.C. PARNELL: No, if you want to deny the facts, it has been raised in this point. I have raised it and the Hon. Rob Lucas has raised it. The Walker Corporation is a major donor to the Labor Party and—

The Hon. P. Malinauskas: Two million dollars?

The Hon. K.J. Maher: What year was the $2 million?

The Hon. M.C. PARNELL: No, it was over a 10-year period and it was Australia-wide. I am not saying it was $2 million to South Australian Labor; I did not say that. You need to listen more carefully. The point I am making is that here we are saying that members of parliament should not accept donations that create a conflict of interest, but what about political parties? Why do we not include that? The reason that I have struck out the last four lines is that they read as follows:

And that upon election and re-election to parliament, within 14 days of taking and subscribing the oath or making and subscribing an affirmation as a member of parliament, each member must sign an acknowledgement to confirm they have read and accept the statement of principles.

That is an absolute joke and it is unconstitutional. It is not possible for this parliament to pass a motion which purports to rewrite the constitution so that the constitution now says: 'not only do you have to be elected, not only do you have to come along and subscribe in the book, and take an oath or an affirmation, but you must also agree with a motion that the previous parliament thought was a good idea and, if you don't, then you are in breach of something.' What are you in breach of?

The Hon. R.I. Lucas: You are not in breach of anything.

The Hon. M.C. PARNELL: No, you are in breach of a motion that the previous parliament thought was a good idea. Why is it appropriate for this parliament to suggest that we put words in a motion which says that future members of parliament must sign it, and that signature says that they have read and accept the statement of principles?

If the government wants to bring an amendment to the Constitution Act, which basically changes the eligibility for members of parliament so that the eligibility is not just getting voted in and is not just subscribing on swearing in day but you also have to sign off on all these other documents, then let them bring a bill forward. Let them bring a bill forward to amend the constitution. They have not done that.

What would the consequences be? There are two things. The consequences of not complying with the actual paragraphs (a) to (l) of the statement of principles would be what they have always been: if it is a breach of the law, it might involve the police; if it is a breach of parliamentary processes, it might involve a privileges committee; but the ultimate sanction is that at the next election people do not vote for you because you have not behaved properly. They are the sanctions, and yet this motion purports to suggest that you have to sign and you have to agree to it.

If we accept this motion and if a newly-elected member of parliament has not signed this document within 14 days, what are we going to do about it? Is the President going to growl at them? Will the President put out a press release saying, 'The following newly-elected members have refused to sign the statement of principles.' What is the consequence of it?

What I find most remarkable about this whole exercise is that the original version that we have came from the House of Assembly, and I will acknowledge that the late Hon. Bob Such was a champion for these statements of principles and codes of conduct, and good on him, that is fine. However, what is remarkable about this is that it bears the signature 'M.J. Atkinson, Speaker, House of Assembly'. Why does the Speaker of the House of Assembly sign a document like this?

There are a couple of reasons. First of all, because that is what they voted for and his job is just to sign it. I would have thought, though, that as a former first law officer, as a pedantic former first officer, whose hobby is checking the spelling mistakes of rival parties' webpages and Twitter posts, how on earth could the Speaker of the other place, the former first law officer, have put his name to something that is unconstitutional? How could that have happened? I really do not know. I find it quite remarkable.

The Hon. R.I. Lucas interjecting:

The Hon. M.C. PARNELL: I am at a disadvantage, not having seen earlier drafts of what might have been in here. However, the point I make is that I am happy to subscribe my name to paragraphs (a) to (1) of this statement of principles. I think some of them are poorly worded and many of them do not go far enough. They are either law, standing orders or common sense, and I will present the Clerk shortly with a version which, having deleted those last four lines, basically says, 'I confirm and accept the above statement of principles. M. Parnell, 13 April 2006.'

It has taken a while to get this on the agenda. I do not want anyone to say, 'Oh, Parnell is trying to worm his way out of his responsibilities as a member of parliament.' I am happy to put my name to it, but I will not be voting for this motion as it is worded. I think it gives us no credit at all to be suggesting unconstitutionally that we have within our power the ability to bind the behaviour of future members of parliament. They will be judged according to the law and according to the standing orders, their peers and the electorate. It is completely out of line for this parliament to be passing a motion such as this and I will not be voting for it.

Debate adjourned on motion of Hon. T.J. Stephens.

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