Do our federal politicians need a code of conduct?
"Yes!" I hear many of you say. After all lots of professions have them, from journalists to doctors. Given that politicians occupy the highest office of our democracy, it shouldn’t be too much to ask them to comply with a code of ethics that would ask them to act honourably, honestly and with integrity — should it?
The talk about codes of conduct for federal parliamentarians is being driven by the current scandals engulfing politics, most notably of course the travails of the Member for Dobell, Craig Thomson.
We don’t need to rehash the sordid details of Thomson’s exploits: the report by Fair Work Australia has done that quite comprehensively. As well as spending union members’ money on things like escort services and his own re-election campaign, Thomson appears to have lied about it to Fair Work Australia’s Terry Nassios to boot.
Thomson’s response to the report has been a bizarre argument about being set up by union enemies. Given the forensic weight of evidence compiled by Fair Work Australia against him — including mobile phone records, credit card statements, signed receipts, logs from drivers and cab charges — it’s a claim bordering on the delusional.
We can happily set the Thomson affair aside for a minute, though, to ask whether parliamentarians need a code of conduct in order to better regulate their behaviour. It’s an interesting question and one that has many implications for the practice of our democracy.
The classical answer to this question would be yes. Legal principles stem from moral codes, after all. The Code of Hammurabi, for instance, includes an early regulation aimed at curbing corruption: a provision to penalise and remove judges from office for altering their judgements after handing them down. Centuries later, Pericles created the Athenian Oath, the first clause of which was "we will never bring disgrace on this our City by an act of dishonesty or cowardice". By the 19th century, John Stuart Mill was writing extensively on the issue of how to square the responsibilities of public office with the duties of morality.
But that doesn’t mean codes of conduct are necessarily the best way to regulate the actions of our elected representatives. Codes of conduct are, first and foremost, an attempt to define and describe ethical roles and responsibilities. As any ethicist would point out, codes of conduct are normative: they are about ethical values and the ways that people and organisations ought to behave. Because of this, they embody a value system — a value system which not everyone may subscribe to, including the voters who put that representative there.
Let’s take a simple example: should parliamentarians be duty-bound to honesty? It’s a seemingly simple question that has many complex implications. Misleading parliament is traditionally seen as one of the most serious things a member can do: in the Westminster system, tradition dictates that those who do so should immediately resign.
The problem here is not just that no-one actually resigns anymore for misleading the parliament or the public — even in reasonably clear-cut cases such as the "children overboard" affair. It’s also a deeper philosophical question over what constitutes ethical behaviour in the first place.
Codes of conduct are inherently about the means, not ends. But politics is all about ends, not means. This poses deep dilemmas even for ethical politicians (indeed, especially for ethical politicians), who must choose between greater and lesser evils in the everyday course of their job.
Is healthcare more important than education? Is balancing the budget more important than borrowing money to invest in infrastructure? More prosaically, is abandoning a promise or backflipping on a position justifiable? If you can’t achieve anything without being elected, what sort of conduct is justified in the campaign?
For some politicians, the answer is a very simple one: whatever they can get away with. The title of Graham Richardson’s 1994 book, Whatever It Takes, sums up the situation for some politicians nicely. Pericles himself, after formulating his famous oath, was involved in the sort of political contortions and backflips familiar to any contemporary observer of democracy. He ultimately led Athens into a disastrous series of wars.
Few of us would applaud the behaviour of Craig Thomson. Rapping a Craig Thomson or a Mal Colston over the knuckles for obvious misconduct is one thing, but what are we to make of politicians who use their networks to make lots of money after leaving office, like Lindsay Tanner (now a merchant banker) or Kate Carnell (a corporate lobbyist)? And what principles of natural justice should apply? What about things parliamentarians did before they got elected?
And what about actions that are legal, but unethical?
The behaviour of more contested political figures, like John Howard or Gough Whitlam, are full of such examples. Both Whitlam and Howard made many enemies for actions that voters perceived at the time as dishonest, cynical, or ruthless. Malcolm Fraser’s successful attempt to get the Governor-General to remove Gough Whitlam’s government may or not have been constitutional. But was it ethical? Similarly, John Howard’s decision to commit Australian troops to the 2003 invasion of Iraq was certainly legal under Australian law. But was it illegal under international law? And was it the right thing to do?
Ethical codes are often flimsy brakes on political action, especially when our leaders are faced with the relentless press of events.
How seriously does the electorate take codes of conduct anyway? Few voters understand the existing rules enshrined in the Constitution, such as the one about parliamentarians being disqualified if bankrupt, or convicted of a crime with a sentence of more than a year in prison. As for the parliament’s standing orders — well, do even the parliamentarians understand them? It’s a fair bet that many don’t.
In other words, a code of conduct for politicians is far from a panacea. Rather than achieve better standards, it is more likely to do what codes and regulations always do: ensnare the stupid and the unwary, while protecting the clever and the duplicitous.
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