By Paul Gregoire and Ugur Nedim
NSW government ministers are required to “pursue and be seen to pursue the best interests of the people” of this state to “the exclusion of any other interest”, the preamble to the NSW Ministerial Code of Conduct asserts in its first paragraph.
The current code was enacted in September 2014. It was created in accordance with section 9 of the Independent Commission Against Corruption Act 1988 (NSW) to set out obligations ministers are to abide by. And any breach of these requirements, if substantiated, then constitutes corrupt conduct.
Along with serving the public interest, the stipulations of the code are also designed to maintain public confidence in the integrity of government, and these guidelines are contained in the appendix of the Independent Commission Against Corruption Regulation 2017 (NSW).
Over the last six months, the conduct code has been raised a number of times in relation to whether NSW premier Gladys Berejiklian may have breached it in terms of her nondisclosure of her relationship with disgraced former NSW Liberal MP Daryl Maguire.
And on top of that scandal, there have been multiple and proven allegations of the premier and other ministers pork barrelling: distributing public money to favoured constituents to ensure support. However, Berejiklian maintains that these actions aren’t illegal.
The ethical minister
Sydney Criminal Lawyers decided to take a look at what’s actually required of NSW ministers within the dictates of the code, which documents stipulations that go above and beyond what’s required of regular members of parliament and breaching them can lead to criminal prosecution.
To begin, the document makes clear that ministers must abide by the oath they take as they enter into the executive, regular laws and the NSW Lobbyists Code of Conduct.
Ministers must not misdirect public service members, fail to act in the public interest, or pursue private benefit.
The legislation then contains a number of parts explaining one aspect of conduct that ministers must abide by. Each part lists various ways in which this specific directive should not be breached, as doing so constitutes corrupt conduct, under section 9 of the ICAC Act.
Interests in companies
Ministers can’t hold shares in a public or private company, except when there’s no conflict of interest. If there is such an interest the minister must divest.
Shares in a superfund are sanctioned if the minister doesn’t influence the entity. And holding an interest in a company on behalf of the state is permitted.
A minister cannot be the director of a private or public company. If they are, the minister must promptly resign on appointment. This stipulation doesn’t hold if the company is a family business, there’s no conflict of interest and the premier approves of the situation.
Ministers cannot hold secondary employment as an employee or practise a profession or undertake consulting whilst in office. Ministers cannot participate in the managing of a business, although there are allowances for family businesses.
Showing your cards
Government ministers must disclose their financial interests and other matters that might be relevant to parliament. On appointment, a minister must present an updated return declaring their interests, which must include any financial matters of their immediate family.
Following the lodgement of the return, a minister must continuously update parliament in writing of any other interests that arise, of which they’d be required to list in their next return. A schedule of current interests is kept by the ministerial registry.
When it might be of benefit
Conflict of interest stipulations also apply to parliamentary secretaries: MPs assigned to assist senior ministers.
These requirements include the prompt disclosure of any conflict of interest that arises in the form of a written note outlining the details, which is then placed in the registry.
Once a conflict of interest is identified, a minister or a secretary must abstain from decision-making related to that matter. And this ceasing to participate in decisions extends to any other “substantial personal connection” they might have to the issue at hand.
A minister who’s about to make a decision and is aware of a benefit it may confer to another MP or a family member must alert the premier to this.
Although a decision that benefits another MP’s electorate, doesn’t necessarily result in a benefit to the member.
Watch those perks
The provisions around the accepting of gifts and other benefits applies to both ministers and their secretaries.
One such stipulation is that these politicians “must not accept or seek payment of a commission from a property developer, either directly or through a third party”.
A minister may accept a gift. But if it’s over $500, the minister must pay the state the amount above that limit or hand the item over. If the minister decides to keep it, they must submit a note with details and a cheque attached. Otherwise, they should hand it over to become state property.
Multiple gifts over a six month period are to be considered as one. If a gift is passed on by one person on behalf of another, it is to be treated as a gift from that other person. And immediate family members should not accept gifts if there’s a conflict of interest or a sense of reward implied.
After office jobs
An acting minister who receives an offer of employment outside of office, which relates to their current portfolio – or any other portfolio they’ve held within the last two years – must seek the advice of the Parliamentary Ethics Adviser before accepting.
This same stipulation applies to a former minister within the first 18 months after they’ve vacated the ministerial position.
And in both circumstances the Parliamentary Ethics Adviser is at liberty to tell them to refuse the job offer if certain criteria aren’t met.
Premier Berejiklian appeared before the ICAC on 12 October last year to answer questions around why she hadn’t disclosed her five year-long “close personal relationship” with former NSW MP Daryl Maguire, who, under the broad definition in the legislation, may have constituted a family member.
According to Ethics Centre executive director Stuart Longstaff, whether the premier breached the code rides on whether Maguire constituted a family member under the legislation or if the premier made any decisions that may have benefited him, as well as why she didn’t declare any of this.
It’s highly likely Berejiklian already knows the answer that the ICAC has determined to these questions, as counsel assisting the ICAC Stuart Robertson SC was going to notify her and other interested parties of his draft decision before Christmas.
Robertson is about to submit his final submissions to the ICAC on 22 February. Although, it may take some months before the commission publicly releases its report outlining its final findings.