tag:theconversation.com,2011:/uk/topics/codes-of-conduct-13847/articlesCodes of conduct – The Conversation2021-10-13T23:29:25Ztag:theconversation.com,2011:article/1544832021-10-13T23:29:25Z2021-10-13T23:29:25ZHigh Court lends weight to academic freedom despite Peter Ridd losing appeal against dismissal<p>The High Court has upheld the decision of James Cook University to terminate the employment of controversial physicist Professor Peter Ridd. The court <a href="https://eresources.hcourt.gov.au/showCase/2021/HCA/32">ruled</a> on Wednesday that a clause in the JCU enterprise agreement protecting “intellectual freedom” did not prohibit Ridd’s dismissal for breaching the university’s code of conduct. However, the judgment did give new legal weight to academic freedom. </p>
<p>The court found the university had breached the clause on intellectual freedom when it first censured Ridd for statements made to journalists that were highly critical of colleagues’ work on climate change and the health of the Great Barrier Reef. The court held that, as these statements were <a href="https://www.abc.net.au/news/science/2019-04-23/peter-ridd-reef-science-climate-change/11026540">within his areas of academic expertise</a> and were honestly held, they were protected from disciplinary action even if not respectful or courteous (as the JCU code of conduct for staff required). </p>
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<p>The decision is based on the particular terms of the JCU enterprise agreement. However, most Australian universities have similar clauses in their enterprise agreement. </p>
<p>Similarly, in a <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2021/2021fcafc0159">judgment</a> in August this year, the Full Court of the Federal Court of Australia found the Sydney University enterprise agreement provided enforceable protection of intellectual freedom. This matter, involving controversial political economist Tim Anderson, has been sent for a new trial. </p>
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<a href="https://theconversation.com/court-gives-legal-weight-to-academics-right-to-intellectual-freedom-but-its-not-the-final-word-167112">Court gives legal weight to academics' right to intellectual freedom, but it's not the final word</a>
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<h2>Why is academic freedom important?</h2>
<p>Academics employed at Australian universities provide expert commentary on a range of complex issues. Academic freedom ensures that appropriately qualified and trained experts are able to assist the public and government in making informed decisions. As universities are places for the discovery and dissemination of knowledge, open and robust debate by academics is central to the search for truth and social progress.</p>
<p>In 2019, a former chief justice of the High Court, Robert French, conducted an <a href="https://www.dese.gov.au/higher-education-publications/resources/report-independent-review-freedom-speech-australian-higher-education-providers-march-2019">independent review</a> of academic freedom at Australian universities. The report highlighted that all Australian universities have policies that may inhibit academics from commenting publicly on issues within their areas of expertise. </p>
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Read more:
<a href="https://theconversation.com/university-free-speech-bill-a-sop-to-pauline-hanson-and-other-critics-but-what-difference-will-it-make-150449">University free speech bill a sop to Pauline Hanson and other critics, but what difference will it make?</a>
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<p>In particular, university codes of conduct typically require staff to act “respectfully” and “courteously” towards other staff. Breaches of these codes may lead ultimately to termination – as in the cases of Ridd and Anderson. Therefore, a university’s powers as employer may conflict with the freedom of academics to speak publicly on relevant topics.</p>
<h2>Decision hinged on response to censure</h2>
<p>JCU took disciplinary action against Ridd, and ultimately terminated his employment, based on a range of conduct. Ridd argued that the intellectual freedom clause protected all his conduct.</p>
<p>The High Court agreed some of Ridd’s conduct was protected, as it was within the terms of the clause. For example, in a media interview, Ridd criticised the research of other JCU academics. This conduct was protected, as it was within his areas of expertise. </p>
<p>Significantly, the court said Ridd did not need to express his opinions respectfully or courteously, because intellectual freedom is subject only to constraints referred to in the clause.</p>
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Read more:
<a href="https://theconversation.com/book-review-open-minds-explores-how-academic-freedom-and-the-public-university-are-at-risk-156213">Book review: Open Minds explores how academic freedom and the public university are at risk</a>
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<p>However, Ridd’s conduct in publicly criticising JCU for taking disciplinary action against him was not protected. This conduct was contrary to another term of the enterprise agreement which required confidentiality regarding disciplinary matters. </p>
<p>The court held that JCU’s termination of Ridd’s employment was based on conduct that the intellectual freedom clause did not protect, as it was unrelated to any matter within his academic expertise. </p>
<h2>A mixed outcome for academic freedom</h2>
<p>Although the High Court upheld Ridd’s termination, it interpreted the intellectual freedom clause more generously than the full court of the Federal Court when it upheld an appeal by JCU against a judge’s finding that Ridd was wrongfully dismissed. The full court <a href="http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2020/123.html?stem=0&synonyms=0&query=ridd">held</a> that none of Ridd’s conduct was protected by the clause. </p>
<p>However, the High Court’s decision was <a href="https://www.theguardian.com/australia-news/2019/sep/06/peter-ridd-awarded-12m-in-unfair-dismissal-case-against-james-cook-university">not as generous</a> as the judge in the initial trial in the Federal Court. The judge <a href="http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2020/123.html?stem=0&synonyms=0&query=ridd">held</a> that all of Ridd’s conduct was protected and awarded him over A$1 million in compensation.</p>
<p>The High Court’s decision indicates that clauses protecting intellectual freedom may override staff codes of conduct. However, this depends on the wording of the clauses and the defined scope and exceptions to intellectual freedom.</p>
<p>The court emphasised the importance of intellectual freedom, describing it as a “defining feature of universities”. This suggests courts will take a generous approach to interpreting such clauses in the future. </p>
<p>The decision also suggests that requirements to act “respectfully” and “courteously”, which are found in many university codes of conduct, will not limit the exercise of intellectual freedom. </p>
<p>The court referred to intellectual freedom as having a “long-standing core meaning” that is inconsistent with such limitations. The judgment quoted from John Stuart Mill’s famous <a href="https://www.bartleby.com/130/2.html">defence of free speech</a> in stating:</p>
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<p>Whilst a prohibition upon disrespectful and discourteous conduct in intellectual expression might be a “convenient plan for having peace in the intellectual world”, the “price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind.</p>
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<p class="fine-print"><em><span>Bill John Swannie is a member of the National Tertiary Education Union, and President of the Victoria University Branch of the NTEU.</span></em></p>The court found the university was unjustified in censuring the academic for initial conduct that was protected as an exercise in intellectual freedom. But his response to disciplinary action wasn’t.Dr Bill Swannie, Lecturer in College of Law and Justice, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1671122021-09-03T05:35:00Z2021-09-03T05:35:00ZCourt gives legal weight to academics’ right to intellectual freedom, but it’s not the final word<figure><img src="https://images.theconversation.com/files/419195/original/file-20210903-13-5q0oxv.jpg?ixlib=rb-1.1.0&rect=835%2C192%2C2414%2C1554&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The nature and enforceability of university codes of conduct have been in the news lately. Prominent sackings for alleged misconduct include the cases of Professors <a href="https://www.theaustralian.com.au/commentary/as-peter-ridd-case-shows-pursuit-of-truth-not-always-a-civil-affair/news-story/84966a687902b26a5c75c5610778b63b">Peter Ridd</a> from James Cook University and Tim Anderson from the University of Sydney. </p>
<p>Anderson had a <a href="https://www.smh.com.au/politics/federal/court-backs-academics-free-speech-in-swastika-dismissal-case-20210831-p58ngf.html">legal win this week</a> when the full court of the Federal Court decided Sydney’s enterprise agreement contains an enforceable right of academics to “intellectual freedom”. </p>
<p><a href="https://www.smh.com.au/national/nsw/tim-anderson-20201127-p56ilr.html">Previous court rulings</a> had suggested intellectual freedom is an aspirational goal with limited legal force. Ridd and Anderson have both argued they were sacked for exercising their right to intellectual freedom, albeit in ways to which many, including us, would object. </p>
<p>The issue, broadly speaking, is what happens when the manner in which academics want to exercise their right of intellectual freedom under university enterprise agreements collides with what their university’s code of conduct requires of them. Universities are clearly wondering about the worth of their codes of conduct if they cannot dismiss staff for discourteous, disrespectful or offensive behaviour. </p>
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Read more:
<a href="https://theconversation.com/feel-free-to-disagree-on-campus-by-learning-to-do-it-well-151019">Feel free to disagree on campus ... by learning to do it well</a>
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<p>Universities and academics, and Ridd in particular, are awaiting the outcome of his <a href="https://www.hcourt.gov.au/cases/case_b12-2021">appeal to the High Court</a>. </p>
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<p>As for Anderson, the National Tertiary Education Industry Union supported him in the case of <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2021/2021fcafc0159">NTEU and Anderson v University of Sydney [2021] FCAFC 159</a>. The full court found this week that his right to exercise intellectual freedom is relatively unfettered. But victory is only partially complete: a Federal Court judge will now have to decide whether Anderson <em>was</em> exercising his right to intellectual freedom.</p>
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Read more:
<a href="https://theconversation.com/if-not-in-a-university-then-where-academia-must-define-harm-to-allow-open-debate-on-difficult-issues-163355">If not in a university, then where? Academia must define harm to allow open debate on difficult issues</a>
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<h2>Why was Anderson dismissed?</h2>
<p>Anderson was dismissed in 2019 after the university repeatedly warned him about his social media activity. Among other things, he posted: </p>
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<li>PowerPoint slides with an infographic of an Israeli flag with a swastika superimposed over it</li>
<li>a photo of one of his tutors wearing a shirt bearing the words in Arabic “Death to Israel”, “Curse the Jews” and “Victory to all Islam”</li>
<li>allegedly false references to the university’s allegations against him when he had been directed to keep their communications confidential. </li>
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<p>Anderson removed the “University of Sydney” from the “about” details of his Facebook and Twitter accounts after receiving a final warning. He did not remove the comments and posts. After he reposted and retweeted the Israeli flag with swastika infographic, the university at first suspended and then terminated his employment for “serious misconduct”. </p>
<p>Anderson argues he was exercising his right to intellectual freedom under the university’s enterprise agreement and, as such, his activities could not constitute misconduct. He contends that, in warning him and terminating him, the university breached the agreement (it crossed two agreements, from <a href="https://www.nteu.org.au/library/download/id/4679">2013-17</a> and <a href="https://www.nteu.org.au/library/view/id/8705">2018-21</a>) and contravened the Fair Work Act 2009.</p>
<h2>What is the effect of the judgment?</h2>
<p>What does the court finding mean? This right to intellectual freedom under their enterprise agreement allows Sydney’s academics to express unpopular or controversial views, provided they do not engage in harassment, vilification or intimidation. They must also exercise their right “in accordance with the highest ethical, professional and legal standards”. </p>
<p>The court found that <em>if</em> Sydney academics are exercising the right to intellectual freedom, it generally could not be misconduct or serious misconduct to do so. This was the case even if the manner in which they exercised their right breached the code of conduct. </p>
<p>In this way, the court privileged the intellectual freedom clauses over other clauses in the agreement. These included “misconduct” and “serious misconduct” being specifically defined as including breaches of the code of conduct. </p>
<p>The ongoing problem for Sydney’s academics is that the court decided the code of conduct did not identify the “standards” relevant to deciding whether intellectual freedom was being exercised “in accordance with the highest ethical, professional and legal standards”, as stated in the enterprise agreement. </p>
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<a href="https://theconversation.com/universities-relevance-hinges-on-academic-freedom-160346">Universities' relevance hinges on academic freedom</a>
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<h2>What happens next?</h2>
<p>The court was considering the legal issues of the relationship between Sydney’s enterprise agreement and its code of conduct. But whether Anderson’s social media activity was a permissible exercise of intellectual freedom under the agreement and whether he was wrongfully dismissed remains to be decided by a Federal Court judge. If the judge finds in favour of Anderson, the University of Sydney may have to reinstate and compensate him. </p>
<p>In the meantime, the Federal Court has left Sydney’s academics with a relatively unqualified right to express their opinions however they choose. They are unconstrained by any behavioural standards, as long as they do not harass, vilify, intimidate or fail to uphold the “highest ethical, professional and legal standards”. </p>
<p>This judgment underscores to Australian universities what they must do to ensure they can terminate staff for breaches of their codes of conduct. Their enterprise agreements must explicitly qualify the right of intellectual freedom by reference to upholding the code of conduct. </p>
<p>Universities will also have to consider the <a href="http://www.austlii.edu.au/au/journals/UWALawRw/2020/11.html">effect of the French Model Code</a> for the Protection of Free Speech and Academic Freedom on this course of action. </p>
<p>For Australian academics generally, the judgment demonstrates that their right to intellectual freedom is strongly prescribed by what their particular enterprise agreement says. </p>
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Read more:
<a href="https://theconversation.com/dan-tehan-wants-a-model-code-on-free-speech-at-universities-what-is-it-and-do-unis-need-it-119163">Dan Tehan wants a 'model code' on free speech at universities – what is it and do unis need it?</a>
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<p>The lingering question for Sydney academics is: what are the “the highest ethical, professional and legal standards”? This week’s judgment suggested these standards do not require them to avoid causing any offence to others. Nor did they necessarily have to conduct themselves with “respect”, “impartiality” or “courtesy”. It also did not matter to the court whether the conduct might be able to be carried out in a different way so as to not cause offence.</p>
<p>We, along with Anderson, now have to await a Federal Court judge’s view as to whether his conduct departed from the required standards.</p><img src="https://counter.theconversation.com/content/167112/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Does intellectual freedom mean academics can say what they want in whatever way they choose? Tim Anderson had a win this week, but a judge must still decide whether he was wrongfully dismissed.Pnina Levine, Lecturer in Law, Curtin Law School, Curtin UniversityNarrelle Morris, Senior Lecturer, Curtin Law School, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/421162015-05-24T20:13:10Z2015-05-24T20:13:10ZBudget’s $45m slush fund for MPs is an unethical use of public money<p>The 2015-16 Commonwealth budget’s “<a href="http://www.minister.infrastructure.gov.au/jb/releases/2015/May/budget-infra_01-2015.aspx">Stronger Communities</a>” slush fund for every lower house MP raises serious questions. The allocation of $150,000 a year to every MP’s electorate risks seducing and trapping MPs into unethical behaviour that conflicts with new benchmarks for parliamentary codes of conduct.</p>
<p>The allocation, at a total cost of $45 million over two years, is wrong on two counts.</p>
<p>Firstly, taxpayers’ money is being used to buy advantage for government MPs compared to their opponents at the next election, whether opposition, minor party or independent candidates. Because Tony Abbott’s Coalition government has more MPs – they occupy 90 of the 150 seats in the House of Representatives – more of the money will go to government-held electorates. </p>
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<p>The Coalition’s <a href="http://en.wikipedia.org/wiki/Post-election_pendulum_for_the_Australian_federal_election,_2013">marginal seat MPs</a> will be especially advantaged. Incumbent MPs will be able to splash around taxpayers’ money – an extra $300,000 each over the next two years – to curry favour from voters. Their opponents in these electorates will have no access to public money for projects to strengthen the same local community.</p>
<p>Secondly, these slush funds have a sorry record of corrupt use by MPs to benefit themselves, family friends and supporters. Known as <a href="http://internationalbudget.org/budget-briefs/brief10/">constituency development funds</a> (CDFs) in other countries, they are notorious for diversion and misuse. They have been spent on everything from non-existent “consultant’s reports” to urgent, expensive medical treatment for individual constituents.</p>
<h2>Federal MPs have no code of conduct</h2>
<p>The risk of misuse is greater in the Australian Parliament because <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/Conduct#_Toc325623487">it has no code of conduct to guide MPs</a> on ethical behaviour.</p>
<p>Two things should happen. As a matter of principle, the “Stronger Communities” money should be removed from political influence. The money should be administered by public servants to fund projects according to national priorities, not vote-buying.</p>
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<span class="caption">A code of conduct for MPs based on internationally accepted principles of public life is ready for the federal parliament to adopt.</span>
<span class="attribution"><a class="source" href="http://www.cpahq.org/cpahq/Main/Document_Library/Codes_of_Conduct/Codes_of_Conduct_.aspx">Commonwealth Parliamentary Association</a></span>
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<p>Even more importantly, the parliament should adopt and enforce a code of conduct, using the new <a href="http://www.cpahq.org/cpahq/Main/Document_Library/Codes_of_Conduct/Codes_of_Conduct_.aspx">Benchmarks for Codes of Conduct</a> recently developed by my team based at Monash University working with the Commonwealth Parliamentary Association (CPA).</p>
<p>The CPA benchmarks aim to strengthen parliamentary performance and fill a serious gap in how to deal with unethical behaviour by members of parliament. Research suggests that unethical behaviour <a href="https://theconversation.com/its-hard-for-voters-to-trust-leaders-who-wont-promise-true-integrity-34710">undermines reputations, legitimacy and performance</a>. Effective parliamentary codes greatly reduce the corrosive risks of unethical behaviour.</p>
<p>Underpinning the CPA benchmarks are fundamental concepts which must be reflected in codes. Thus every MP must understand that he or she is a public officer, <a href="https://theconversation.com/politicians-forget-what-public-trust-means-we-must-remind-them-34981">entrusted to act on behalf of the public</a> in general. </p>
<h2>MPs must put public interest first</h2>
<p>An MP is not free to act in his or her own interest or that of anyone else except the public. This also means that political parties must put the public interest first. These concepts relate to essential features of parliament which are crucial to good governance.</p>
<p>The code also rests on principles including the internationally respected <a href="https://www.gov.uk/government/publications/the-7-principles-of-public-life">Principles of Public Life</a>: selflessness; integrity; objectivity; accountability; openness; honesty; and leadership. These ethical principles can be traced back to Queensland’s <a href="http://www.ccc.qld.gov.au/about-the-ccc/the-fitzgerald-inquiry">Fitzgerald Royal Commission</a>, which investigated rampant corruption in the state government. The principles were <a href="http://webarchive.nationalarchives.gov.uk/20140131031506/http:/www.archive.official-documents.co.uk/document/parlment/nolan/nolan.htm">further developed by Lord Nolan</a> almost 20 years ago.</p>
<p>Corruption in politics is a constant risk, not just a product of the occasional “bad apple”, according to research extending over decades in many countries. It requires eternal vigilance backed up by effective codes that are strongly enforced. </p>
<p>Our research identified three key features of an effective code:</p>
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<li><p>clear standards of expected behaviour</p></li>
<li><p>ethical training and advice</p></li>
<li><p>independent investigation of alleged breaches.</p></li>
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<p>The history of political corruption around the world confirms that sooner or later, some MPs will succumb to the temptation to rort the “Stronger Communities” slush fund. MPS will advise on and are likely to <a href="http://www.smh.com.au/business/federal-budget/federal-budget-2015-government-to-splash-45m-for-local-infrastructure-projects-20150511-ggz3y3.html">have influence in the selection of projects</a> in their electorates. The temptation to misuse public money to win votes is particularly strong in marginal seats. </p>
<p>The absence of a code of conduct adds to the risk. The lack of an independent adviser with whom MPs can discuss the ethics of “Stronger Communities” proposals is yet another weakness, which heightens the risks of the program becoming a slush fund.</p>
<p>Prime Minister Abbott would have had severe doubts about the ethics of the “Stronger Communities” funding if he had followed the principles recommended in the CPA benchmarks. It is hard to argue that advantaging the incumbent majority of Coalition MPs is in the public interest. Rather, it undermines public confidence in the fair use of taxpayers’ funds.</p>
<p>Australia is out step with the many other democratic parliaments that have and enforce a code of conduct. These parliaments are expected to apply the CPA benchmarks to the structure and functions of their codes of conduct, and so help avoid MPs being trapped through schemes like the “Stronger Communities” slush fund.</p>
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<p><em>Acknowledgement: The Benchmarks for Codes of Conduct applying to members of parliament is available <a href="http://www.cpahq.org/cpahq/Main/Document_Library/Codes_of_Conduct/Codes_of_Conduct_.aspx">here</a>. It has been funded by the Commonwealth Parliamentary Association (CPA) in partnership with Monash University. The CPA is the international association of national, provincial/state, territory parliaments of the UK and its former colonies – almost 200 houses of parliament.</em></p><img src="https://counter.theconversation.com/content/42116/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ken Coghill is a former Speaker and Member of the Victorian Parliament and is a life member of the Australian Labor Party.</span></em></p>‘Better Communities’ funding is supposedly non-partisan: every electorate gets $300,000 for local projects. But only incumbent MPs have a say in this spending and 60% of them are government members.Ken Coghill, Associate Professor, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/394982015-04-24T03:29:28Z2015-04-24T03:29:28ZCodes of conduct: making things clear is better than ‘keeping it real’<figure><img src="https://images.theconversation.com/files/78314/original/image-20150417-14527-18z1ioo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Cotton On Group's code of conduct reflects a misunderstanding of what they should be used for. </span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/avlxyz/5291340175/in/photolist-523GJk-oBL1AD-7N66pQ-94zv62-5jurCd-9uzufB-dtomgt-akPyZJ-dx6rUB-dxbUTU-dyJGBq-dyDeqD-dyDeRB-pb43i5-dxbUPL-dyJJdJ-dyJJ5A-dyJH45-52m3pP-885g1U-dyDfgp-dx6rXx-dxbV4f-dycN2q-dycMPd-dBDj1c-dycLyQ-dycLqW-dx6s7v-dx6s4K-8BeT7z-dyJHUq-dyDf7z-dyJHd1-dyDeiX-dBJJiN-dBJHXj-dBJHzf-dBDi3V-dBDhXi-dycMEN-dy7j3K-dy7iG4-dy7iA6-dx6rGT-dBJJv1-dBDiP2-dBJJ2J-dBDim2-dBJHDL">Flickr/Alpha</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>To work for retailer Cotton On, <a href="http://www.smh.com.au/business/retail/cotton-on-tells-staff-to-keep-it-real-or-face-the-sack-20150318-1m1t2t.html">employees must “keep it real” and “be fun”</a>, with the potential for disciplinary action if they don’t adhere to these policies.</p>
<p>At first glance, this might seem one of those management curiosities that pops up from time to time as a way of management trying to drive a certain type of organisational culture. However, this is the second code of conduct I have seen recently where the focus is on trying to individualise behaviour within the code of conduct. If this is a growing trend, then it is of concern.</p>
<p>While the sentiment of “keeping it real and fun” may have been added with good intentions, introducing such vague and subjective criteria into a policy statement that is there to provide clear and objective statements of standards can cause more harm than good. </p>
<p>I suspect that, as with the other policies I have seen, that these policies are increasingly being developed by people with little understanding of the role of codes of conduct and the knowledge to develop them appropriately.</p>
<h2>So what is a code of conduct?</h2>
<p>In its simplest form, codes of conduct are policies that stipulate acceptable standards of behaviour by employees at work and when representing their organisation. It can also relate to a set of professional standards or practices. </p>
<p>The code of conduct provides rules and boundaries that all employees are bound by (including management) and that employers can refer to for appropriate or accepted ethical, professional or disciplinary behaviours.</p>
<p>Following a story in Fairfax Media about its code of conduct, Cotton On Group issued a statement claiming it to be “inaccurate and a misrepresentation of our culture, values and employment practices”, going on to say: “To clarify, our values and the referenced Code of Conduct are not conditions of employment, as was clearly expressed to the journalist.” There still appears to me to be a confusion on what a code of conduct is.</p>
<h2>Good versus bad</h2>
<p>The most recent high-profile enactment of a code of conduct was the termination of the BBC presenter Jeremy Clarkson for verbal and physical abuse of a colleague. While this was just the last in a series of indiscretions by the presenter, there are certain actions within a code of conduct that can guide an employer in making a decision. </p>
<p>In this particular case, and despite the overt pressure of a public petition with more than one million signatures, Clarkson was sacked because he had clearly breached the code of conduct.</p>
<p>A well-structured and thought-through code of conduct can provide a fair, consistent and valuable signal to all in the organisation (employers and employees) of the core values of an organisation, particularly when it comes to what have often been described as these “moments of truth”, such as Clarkson’s situation.</p>
<p>It is clear therefore that a code of conduct needs to be ethical and underpinned by integrity. While these are basically subjective, it does provide guidelines on how to act in the workplace. In such a context you would not expect such policies to breach employment law. </p>
<p>I am aware of another code of conduct for an independent school which asks staff to act professionally, respectfully and with integrity at all time. However, the code also states that staff should never make a negative comment about any aspect of the school. </p>
<p>So, if an issue or concern is raised by a parent that may reflect badly on the school, do staff at this school act professionally, respectfully and with integrity and attempt to resolve an issue which may then reflect negatively on their employer - or refuse to engage with it for fear of being disciplined? Staff are rightly confused with a contradictory policy that could see someone at risk of being sacked for breaching one part of the code while upholding the other.</p>
<h2>Guidelines</h2>
<p>So what guidelines can we suggest for those looking to develop a set of quality codes of conduct? Firstly, involve all stakeholders, especially employees, in the process. </p>
<p>Secondly, identify areas that need codes of conduct - for example discipline, attendance or dress standards. Thirdly, communicate a draft to the organisation for comment and fourthly, review regularly. Finally, let a human resources expert and employment lawyer sign off on it.</p><img src="https://counter.theconversation.com/content/39498/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Holland does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Codes of conduct can be useful and strategic for employers, but too many are contradictory and vague.Peter Holland, Associate Professor in Human Resource Management and Employee Relations, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/349812014-12-04T04:31:29Z2014-12-04T04:31:29ZPoliticians forget what public trust means – we must remind them<p>There cannot be a more important office or more challenging role than being a member of parliament. This is especially so for government MPs and ministers, including the newly elected Victorian ministry <a href="http://www.abc.net.au/news/2014-12-04/daniel-andrews-sworn-in-as-victorian-premier/5935934">sworn in on Thursday</a>. As former federal Liberal minister Fred Chaney <a href="http://www.accountabilityrt.org/inaugural-art-lecture-fred-chaney-integrity-parliament-where-does-duty-lie/">has explained</a>, all persons elected to parliament bring with them values, loyalties and obligations to self, family and other supporters, and their parties, but also obligations to people in their electorate and the state – not to mention personal political ambitions and the pursuit of power. Much of the time, two or more of them will be in conflict.</p>
<p>Cabinet ministers have to add to the mix their loyalty and confidentiality obligations. Chaney observed that most decisions of policy that MPs and cabinet ministers must make involve issues for which there are competing solutions, none perfect, which will affect members of the community differently. </p>
<p>Chaney advised that the guiding principle to resolve conflicts must be what is in the public interest.</p>
<h2>Public office is a public trust</h2>
<p>The oaths politicians take as MPs and ministers commit them to compliance with the law but give little guidance. Guidance from the law can be found in a principle of law and ethics, which states that public office is a public trust. Regrettably, that principle has been largely forgotten.</p>
<p>Victorian MPs and ministers are covered by two <a href="http://www.parliament.vic.gov.au/publications/fact-sheets/1021-fact-sheet-e2-members-code-of-conduct">codes of conduct</a>. However, these focus on specific issues of conflicts of interest between their personal financial interests and public duties and roles in parliament and government.</p>
<p>Guidance could be found in the current benchmark for codes, the <a href="http://www.dpmc.gov.au/guidelines/docs/ministerial_ethics.pdf">Commonwealth Standards of Ministerial Ethics</a>, initially published by former prime minister Kevin Rudd. The code begins by stating:</p>
<blockquote>
<p>1.1. The ethical standards required of Ministers in Australia’s system of government reflect the fact that, as holders of public office, Ministers are entrusted with considerable privilege and wide discretionary power.</p>
<p>1.2. In recognition that public office is a public trust, therefore, the people of Australia are entitled to expect that, as a matter of principle, Ministers will act with due regard for integrity, fairness, accountability, responsibility and the public interest, as required by these Standards.</p>
</blockquote>
<p>While expressly based on the public trust principle, it does not appear to have revived that principle in the consciousness of those in government or the community.</p>
<p>When we entrust people with power over our lives, that power should be exercised in our interests; that obligation must always prevail over the interests of the people given the power. This is what the law recognises as a fiduciary relationship. </p>
<p>It follows that when a minister is making a decision and the common good of the people requires one decision, but his or her personal or political loyalties and future require a different decision, he or she must always give priority to the common good.</p>
<h2>An ancient principle fallen into disrepair</h2>
<p>This is not a new principle. It goes back to Plato. </p>
<p>About 100 years ago, that proposition that “public office is a public trust” was regularly used in public discussion of government and parliamentarians’ actions. It is not a metaphor: it is a fundamental ethical principle and a principle of the common law of Australia.</p>
<p>Former High Court chief justice Sir Gerard Brennan <a href="http://www.accountabilityrt.org/integrity-awards/sir-gerard-brennan-presentation-of-accountability-round-table-integrity-awards-dec-2013/">explained</a>:</p>
<blockquote>
<p>It has long been an established legal principle that a member of Parliament holds ‘a fiduciary relation towards the public’ and ‘undertakes and has imposed upon him a public duty and a public trust’. The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by, the interests of the trustee.</p>
</blockquote>
<p>Sir Gerard acknowledged that:</p>
<blockquote>
<p>… the fiduciary duties of political officers are often impossible to enforce judicially - the motivations for political action are often complex – but that does not negate the fiduciary nature of political duty.</p>
</blockquote>
<p>Sir Gerard’s conclusion left little room for doubt about the obligations of public trust:</p>
<blockquote>
<p>Power, whether legislative or executive, is reposed in members of the Parliament by the public for exercise in the interests of the public and not primarily for the interests of members or the parties to which they belong. The cry ‘whatever it takes’ is not consistent with the performance of fiduciary duty.</p>
</blockquote>
<p>The courts <a href="http://www.accountabilityrt.org/wp-content/uploads/2009/11/Smith-T-2014-Lyceum-U3A-Speech-final-_3_.pdf#page=17">have applied</a> the legal principle in other areas. These include legality of contracts, common law criminal offences and the sentencing of convicted offenders whose offence involved a breach of their public trust obligations. </p>
<p>The courts have also applied the principle when interpreting legislation that gives discretionary statutory powers to ministers. The courts have held that such powers are <a href="http://www.accountabilityrt.org/wp-content/uploads/2009/11/Smith-T-2014-Lyceum-U3A-Speech-final-_3_.pdf#page=31">“conferred as it were upon trusts”</a>. They are to be exercised in the public interest to promote and not defeat or frustrate the objects of the legislation. </p>
<p>Court action can be taken to challenge the exercise of such powers relying upon the legal principle that public office is a public trust. One example is the powers held by planning ministers <a href="http://www.accountabilityrt.org/government-secrecy-and-urban-planning-the-forgotten-trust-and-reform/">to intervene</a> in planning applications.</p>
<h2>Issue of integrity affects all policy</h2>
<p>In the area of open and accountable government our public trustees – both elected and appointed public servants – inevitably have to deal with a conflict of interest arising from their obligation to give priority to the public interest over their personal and political interests. This is an area of policy that affects how all other policy areas are addressed. </p>
<p>Open and accountable government is critical to the operation of our democracy. If provided, it would also result in better government for the whole community, reduce opportunities for corruption of government and significantly help economic growth. In late 2013, British Prime Minister David Cameron <a href="https://www.gov.uk/government/speeches/pm-speech-at-open-government-partnership-2013">said</a>:</p>
<blockquote>
<p>… the best way to ensure that an economy delivers long-term success, and that success is felt by all of its people, is to have it overseen by political institutions in which everyone can share. Where governments are the servants of the people, not the masters. Where close tabs are kept on the powerful and where the powerful are forced to act in the interests of the whole people, not a narrow clique.</p>
</blockquote>
<p>He acknowledged that transparency in government is not easy, that it “brings risks”. The risks are personal for our public trustees. Giving priority to the public interest by strengthening open and accountable government requires moral courage.</p>
<p>Probably the best-known recent failure in the government integrity system in Victoria has been the creation of the Independent Broad-based Anti-corruption Commission (<a href="https://theconversation.com/how-to-turn-ibac-into-a-corruption-watchdog-that-works-as-promised-34709">IBAC</a>). If the creators of IBAC had been more aware of their obligations as public trustees, would the outcome have been different? </p>
<p>Would they have dealt with the conflict of interest they faced by including the community in the decision-making process, publishing draft legislation for discussion and involving relevant civil society groups in their deliberations? Instead, they lacked, at every critical stage, the benefit of input from the key stakeholders – the people of Victoria.</p>
<h2>How do we all repair government?</h2>
<p>The new Labor government made election commitments to strengthen the state’s integrity system. While their <a href="http://www.accountabilityrt.org/wp-content/uploads/2014/10">proposals</a>, if carried out well, will make some important <a href="https://theconversation.com/its-hard-for-voters-to-trust-leaders-who-wont-promise-true-integrity-34710">incremental improvements</a>, much more could have been promised. For example, the government could replace our FOI legislation with the best-practice <a href="http://www.qld.gov.au/about/rights-accountability/right-to-information/">“Right to Know”</a> approach of Queensland and refer the <a href="http://www.theage.com.au/comment/political-donations-victorias-big-secret-20141014-115mgh.html">political funding</a> of parties and candidates to the Joint Electoral Matters Committee for inquiry.</p>
<p>Again, did a failure to properly consider the public trust principle contribute to the shortcomings of what has been promised? If so, that can be easily rectified.</p>
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<p>In his victory speech on election night, new Victorian premier spoke in terms that reflected the public trust principle when he identified two key objectives of his new government: serving the people and winning back their trust.</p>
<p>The government can win back people’s trust by demonstrating that it is serious about strengthening Victoria’s integrity system by implementing Australian best practice. There is no better way to serve the people and regain their trust than bringing them into the decision-making process on all integrity-related issues.</p>
<p>To change the culture to one that accepts and gives primacy to the public trust principle, it needs to become an accepted part of public discussion and expectation. Where does responsibility for this lie? The short answer is with us all: members of the community; the teaching professions; governments; parliaments and the media. </p>
<p>Ultimately, however, the buck stops with those who vote every four years.
If we want our democracy to work as it should, we cannot afford to disengage from it. And if we continue our disengagement, we must accept ultimate responsibility for the failures of our democratic system.</p>
<p>Is there hope? The rise of these matters as a political issue in Victoria and at the national and international level suggest there is. Australia has made commitments under the UN Convention Against Corruption (<a href="https://www.unodc.org/unodc/en/treaties/CAC/">UNCAC</a>) and <a href="http://foi-privacy.blogspot.com.au/2014/11/g20-countries-to-lead-on-international.html#.VH_GimSUfC4">through the G20</a> and the <a href="http://www.opengovpartnership.org/">Open Government Partnership</a>.</p>
<p>And as Victor Hugo said:</p>
<blockquote>
<p>All the forces in the world are not so powerful as an idea whose time has come.</p>
</blockquote>
<p>The public trust principle’s time is here.</p>
<hr>
<p><em>Tim Smith QC was one of the authors of this article. He chairs the Accountability Round Table and is a former Supreme Court judge and former commissioner of the Australian Legal Reform Commission and Victorian Legal Reform Commission. More of his speeches and writing on this issue can be seen <a href="http://www.accountabilityrt.org/?s=office+public+trust">here</a>.</em></p><img src="https://counter.theconversation.com/content/34981/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Colleen Lewis has previously received funding from the Australian Research Council. She is a member of the Accountability Round Table.</span></em></p>There cannot be a more important office or more challenging role than being a member of parliament. This is especially so for government MPs and ministers, including the newly elected Victorian ministry…Colleen Lewis, Adjunct Professor, National Centre for Australian Studies, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.