Barbara Etter, who quit as the first Integrity Commission CEO and is now suing the state
The Integrity Commission has been in existence for over two years. Perhaps not long enough to have any runs on the board (and they don’t) but certainly long enough to be able to see what sort of game they are playing. Their website states they are in the business of developing a culture of integrity and ethical conduct and raising the standards of ethical behaviour across government. These are laudable aims but the rhetoric and the practice need to be in alignment. Recently an opportunity arose to see the Integrity Commission in action. The experience suggests that instead of raising standards and changing behaviour the Commission is instead reinforcing the status quo. Rather than being in alignment, rhetoric and practice don’t even appear to be on speaking terms. Other than the expense of another government agency it is difficult to see what Tasmania has gained by its existence.
I’m a public servant in one of the State Government’s larger agencies. And today it’s our quarterly branch meeting. In addition to the usual reports and updates today there is a guest speaker. This afternoon there will be a presentation from the Integrity Commission. Someone sitting behind me says, ‘I didn’t know we had an Integrity Commission.’Laughter follows.
But it’s true, we don’t hear much about the Integrity Commission. There was some noise made when it was established, then things went quiet and the next time we hear anything it involves the mysterious departure of their CEO, followed some time later by the eventual appointment of a successor. Other than that, nothing. So this presentation should be interesting. And it was.
The presenter arrives and a whiteboard is set up. It’s a powerpoint presentation. Of course it is. Colour booklets are handed out to each of us. A brief examination reveals some information about making complaints, some advice about receiving gifts (not really a common occurrence but you never know), and some legislation.Lots of legislation.
Speaking of which, the Integrity Commission Act 2009 identifies the purpose of the Integrity Commission as follows:
3.Object and objectives
(1) The object of this Act is to promote and enhance standards of ethical conduct by public officers by the establishment of an Integrity Commission.
(2) The objectives of the Integrity Commission are to –
a) improve the standard of conduct, propriety and ethics in public authorities in Tasmania; and
b) enhance public confidence that misconduct by public officers will be appropriately investigated and dealt with; and
c) enhance the quality of, and commitment to, ethical conduct by adopting a strong, educative, preventative and advisory role.
The presentation takes place after a good lunch and follows a long morning. Everyone is present, the room is full but attention deficit disorder is an occupational risk at such times.
The presentation begins.
The presenter tells us she is in the Prevention, Education and Research branch of the Commission. Probably safe to assume she knows what she’s talking about, although this may turn out to be wishful thinking. The first thing we are told is that the Integrity Commission has been created in order to improve the reputation of the State Government and the public sector, as there was a perception among certain sections of the public that standards needed improving.
A perception? Hmmm.
She tells us the Commission is addressing this ‘perception’. I re-read the objectives stated in the integrity Commission Act 2009. I can’t find any mention of perceptions. This sounds like a PR role. Have we just been told the Commission is an exercise in spin? People in the audience start paying a little more attention . There is no mention of corruption. No mention of being set up to raise standards of ethics, conduct and propriety. Integrity itself is only mentioned inasmuch as it’s in the title of the organisation. As Sir Humphrey used to say in Yes Minister, put the difficult bit in the title and you never have to deal with it again.
She moves on to the next slide. The public sector Code of Conduct. To be found in Section 9 of the State Service Act 2000. This turns out to be the focus of the presentation and, apparently, the focus of the Integrity Commission. We should not engage in misconduct. But only misconduct as defined by the State Service Act. Again I wonder briefly about the objectives identified in the Commission’s own Act but these no longer appear to concern the Commission itself.
We are taken, in detail, through the code of conduct and State Service Principles – also in the State Service Act. We are told that it is important that staff abide by the Code of Conduct. No one disagrees. But we already had the code of conduct. We already had the State Service Act. What has the Commission brought to the table that wasn’t there before? I’m not alone in wondering this. People start asking questions. And the Commission’s public face doesn’t really answer them.
From the back of the room, someone comments that as far as the Commission is concerned all that matters is that public service employees follow the rules and do what they are told. She disagrees, but before she can elaborate there is another question, this time from the middle of the room. It was an interesting exchange.
‘So the only thing that matters is following the rules in the legislation? As long as no laws are broken everything’s ok?’
‘No, its not about legislation, its about obeying and acting on the Code of Conduct.’
‘But you’ve just told us the Code of Conduct is in the State Service Act.’
‘It is.’
‘So it is legislation.’
‘No’.
‘Surely if its in the legislation it is legislation.’
‘Well, yes.’
So as long as you don’t break the law, you can’t be engaged in misconduct?’
‘That’s right.’
‘So if someone’s actions are entirely within the law, can’t be demonstrated to have breached the code of conduct, they can’t have done anything wrong as far as the Integrity Commission is concerned?’
‘That’s right.’
‘But laws create loopholes and isn’t it precisely this sort of thing that corrupt people exploit? They do the wrong thing but they act within the letter of the law?’
There was no answer to this question. Perhaps she thought it was a statement. She continued doggedly through her powerpoint. This consisted of reading us various components of the Code of Conduct and occasionally providing examples of breaches. All very black and white. No shades of grey.
And again there was no mention of corruption. This doesn’t appear to be an issue either in Tasmania or for the Commission. All that matters, it was reiterated is that State Government employees do what they are told. If they follow the rules they should be alright. Misconduct is to be avoided and it is misconduct that is the sole concern of the Commission.
One form of misconduct of great concern to her was in regard to the use of confidential information. It was explained to us that public service employees may have access to information that is confidential and cannot be released to the public. Clearly this was a revelation to those in the room. Should we be taking notes? Furthermore, public service employees, although entitled to express their opinions publicly, can only do so based on information that is also already publicly available. To express an opinion based on confidential information or to pass on such confidential information is an example of misconduct. Someone was being paid to tell us this?
This led a number of people around the room to bring up the issue of whistle-blowers. The Commission’s position on whistle-blowing was made very clear. It is none of their concern.
There is, we were told, appropriate channels for this, (via another Act) for whistle-blowing, and it was a role for the Ombudsman, not for the Integrity Commission. The Commission will not, we were explicitly told, help, support or protect whistleblowers. This was, to say the least, unexpected. From the back of the room someone asked what could a person do if they’d exhausted those ‘appropriate channels’? ‘It’s not the role of the Integrity Commission’ was the reply.
From the middle of the room came a comment regarding a Victorian police officer whistle-blower who had recently appeared on ABC’s Lateline and 7.30 Report alleging child abuse cover-ups and lack of cooperation with police from the Catholic Church. This whistle-blower actions had led to the establishment of a Royal Commission into these problems. It was the single biggest news story at the time. She told us she hadn’t heard of it. However, she told us, by going to the media, what the police officer did was wrong. It was misconduct, and anyone that behaved like that would probably be putting their career on the line. And it was nothing to do with the Commission. They couldn’t help such people or condone their behaviour. It broke the rules. A number of people in the room had difficulty letting go of this …
From the back of the room,
‘My understanding is that the officer in question had tried doing things by due process for something like 20 years…’
‘It was still wrong for him to have gone to the media.’
‘So what should he have done?’
‘He could have written his concerns down and filed a report. He could have gone to the Ombudsman, or to someone higher up in the organisation.”
“I think he did all that. It didn’t work.’
‘Well, that’s all he could do.’
In situations in which public servants know of something wrong being done within their agency they should write a report of the wrongdoing and send it up the organisational ladder.
And then leave it be. An agency middle-manager spoke up in support of this process.
‘Write it down and file it. PYA’
‘PYA?’
‘Protect your arse.’
She concurred (I’m not sure where that stands re improving the standards of conduct, propriety and ethics). It’s a good thing misconduct can never happen at the top, where it really matters, because there’s no one to report it to. She told us not to worry as the media could always make ‘Right to Information’ (formerly FOI) requests and would then get access to any reports written. Another question from the back, ‘How is the media going to know there is something wrong in order to make the request, given the concerned person isn’t supposed to go public with the information?’ A suggestion from the middle: ‘Perhaps the person could anonymously tip off the media to make an RTI request for the information in question.’ A small amount of laughter. ‘That might work’, the Commission told us.
Back to the powerpoint.
The whistleblower discussion had also brought up the thorny issue of ethics. If it didn’t involve following the rules laid down in the State Service Act the Commission was against ethics. She called this ‘personal ethics’ and acting on them couldn’t be condoned. At work, she told us, ‘personal ethics’ should be ignored in favour of following the rules laid down in the workplace. She is presumably unfamiliar with Nuremberg as well. She provided an example of why ‘personal ethics’ was such a bad thing. ‘What if you were a Muslim and believed women don’t have rights? That’s why personal ethics aren’t relevant at work.’ That was her entire argument. Really? Apart from being inaccurate, ignorant, and in the context of a public presentation, probably an issue for the Anti-Discrimination Commissioner, the example provided isn’t, even if correct, an example of an ethical belief, unless the presenter is under the impression that all beliefs, personal, cultural, social and religious are all ‘personal ethical beliefs.’Perhaps that’s why this was the only mention from the Commission of ethics.
In closing we were told how to go about making a complaint, if we became aware of misconduct, as understood in the Act. If we did so, we should put our names to it. So did this mean the Commission won’t accept anonymous complaints? No, we were told, it does. ‘But the Commission is less likely to act on them.’ Well, that’s good to know. And surprisingly candid.There were questions about this too. In a small community such as Tasmania, perhaps anonymous complaints have a greater value than they might elsewhere. This was certainly an opinion expressed by someone from the side of the room,
‘With what could be called ‘one degree of separation’ it could be very important to make anonymous complaints as people making complaints are more easy to identify and as a result more subject to retribution here than elsewhere.’
A fair point. He continued:
‘If I were to make an anonymous complaint how would I be able to follow its progress?’
‘You can’t. There’s no way of doing so.’
From the other side of the room a comment was made:
‘You could do what Crimestoppers do with their anonymous complaints. You could provide the complainant with a number for the complaint so they could get in touch and ask how complaint number such and such is going.’
‘That’s a good idea. I’ll pass that on back at the Commission.’
Well to be fair, Crimestoppers has only been around 20 or so years (in Australia). Perhaps the Commission hadn’t heard of it.
After this the presentation rapidly came to an end. ‘Any questions?’ She clearly didn’t want any, as she left no time for anyone to answer.
‘Good, well thank you for your time. Would you fill out those feedback sheets before I go.’ Ironically, the first question on the sheet was Has this presentation increased your understanding of ethics and integrity?They would need to be discussed for that. Perhaps implicitly, but only in regard to the Commission’s ethics.
After collecting those largely blank feedback sheets, she left the room. Immediately the person behind me spoke again:
‘So, we don’t have an Integrity Commission.’
Some more laughter.
But it isn’t really funny.
*Nugget Toombs is not the writer’s real name … He/She has been identified to the Editor.
