The Ethics Council: some inconvenient truths?

Ironically the recent announcement by Commissioner Tom Calma about the Representative Body’s new Ethic Council immediately raises issues of public sector ethics and governance some would prefer to ignore.

In his 2006 book, An Inconvenient Truth Al Gore rallied to action those ready to fight for solutions to save the earth’s climate. By contrast, Tom Calma’s announcement of his handpicked ethics committee is about as rousing as Keith Windshuttle’s attempts to distort the Stolen Generation. The eminence of some members is not the issue here. The Ethics Council appears less about ethics than an undemocratic attempt at reinventing Indigenous political authority.

According to a statement released by Calma, the Ethics Council’s role is “to apply merit-based process to shortlist candidates for election as members of the National Executive and then be responsible for ensuring the ethical conduct of representatives of the organisation, based on the Nolan principles”. The Ethics Council therefore appears to represent the most powerful (and highly intrusive) element of the new Congress. In the “Our Future in Our Hands” Steering Committee Report, the Ethics Council was described as part time paid work.

There are already two tests established at law: first, has the candidate a criminal record; second, has the candidate been disqualified as a company director. If these tests are good enough to apply to federal politicians and company directors the same rules should apply to Indigenous Australians. Does the Calma camp believe Indigenous people have a criminal predisposition that warrants closer examination by an Indigenous moral watchdog for hidden imperfections? The Ethics Council raises the realm of Big Brother and more ethical issues than it seeks to apparently resolve.

The process of appointment to the Ethics Council was not open or transparent. According to Calma’s press release (January 4, 2010) the HREOC Steering Committee simply identified individuals, asked them to submit an expression of interest and then made the appointments. As a result of this process Calma himself, whose term as Social Justice Commissioner expires shortly, has been appointed to the Ethics Council ostensibly to ensure “continuity” with the work of the HREOC Steering Committee (that he established and chaired). Aboriginal people of Western Australia have noticed they are completely absent from the predominantly east coast make-up of the Council’s membership.

Accordance to the Nolan principles, which the Ethics Council is bound to apply, the establishment of the Ethics Council should have included:

• a publicly available written appointments process;
• job descriptions and person specification;
• the use of advertisement and/or consultation with interested bodies and other forms of canvassing;
• the encouragement of nominations (including self-nominations);
• the sifting of candidates by a nominations committee; and
• defined terms of appointment after which reappointment should not be automatic.

The Nolan system is described as establishing an independent selection process that fosters transparency and the assessment and shortlisting of candidates on the basis of merit, extinguishing a “system of political patronage, replacing it with one of good governance”.

Calma’s own appointment to the Ethics Council (through the Steering Committee he established and chaired) raises ethical issues. According to the APS Code of Conduct an employee must:

1. take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment;
2. not make improper use of inside information, or the employee's duties, status, power or authority in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person; and
3. at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.

This begs the question of whether senior non-Aboriginal public sector executives can effectively create and take the benefit of opportunity (that includes a pecuniary interest) courtesy of government funds? If not, then should a different standard apply to Aboriginal people?

It is unlikely that decisions of the Ethics Council will be subject to any external or independent review. This is a result of the Steering Committee’s decision that the representative body should be established as private company structure, rather than a statutory authority.

ATSIC had its flaws, as the Minister for Aboriginal Affairs was quick to remind us during the “consultation” phase of the new body by repeatedly stating that the new body “would not be another ATSIC”. However, ATSIC was a statutory body with external legislative safeguards that could be utilised to prevent or remedy abuses of power within the organisation. The new body will not have ATSIC’s service delivery role but it will have a major advisory and advocacy role (including research) with government committing close to $30 million to December 2013.

How exactly then will the Ethics Council vet Executive Council members? This is not clear, apart from Calma’s sweeping statement that decisions will accord with the Nolan Principals. Decisions of the Ethics Council will not fall within the realm of public administrative law, unlike the decisions of ATSIC, that were subject to external checks and balances under the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”).

Under the ADJR, persons aggrieved by decision of federal bodies can seek an independent review of that decision, which may be set aside by the Court. The grounds of appeal include: breach of the rules of natural justice; that the decision was induced or affected by fraud; that there was no evidence or other material to justify the making of the decision. Also, that the decision was improper because irrelevant consideration were taken into account; or that relevant consideration were not taken into account; that the decision was made in bad faith; or at the direction or behest of another person; in accordance with a rule or policy without regard to the merits of the particular case; so unreasonable that no reasonable person could have so exercised the power; and an abuse of power.

The Freedom of Information Act 1982 also meant that Aboriginal people could apply to ATSIC for access to relevant information. As a private body corporate, FOI legislation will not apply to the decision of the Ethics Council.

Is the “Ethics” Council the centerpiece of the new “representative” body and a mechanism by which ethics, transparency and even representation can be circumvented? The process by which members have been appointed was not reflective of best practice, there can be no guarantee that it will operate independently at arms length from the Congress and there is no right of review or appeal from the important decisions that it has been entrusted to make.

The Indigenous representative body was supposed to be “a new dawn”, but one has to wonder whether its beginnings are more reminiscent of ATSIC’s final days.

Al Gore powerful exposé forced people to acknowledge climate change and confront their denial over its very existence. Likewise, the Ethics Council has raised some inconvenient truths. The question is: who will be prepared to notice?