Page 980 - Week 04 - Thursday, 3 May 2007
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that different political philosophies are based on markedly different views of what is ethical and unethical. It is no secret why people on the political left are so keen on smuggling subjective notions of ethical behaviour into administrative legislation. They are well aware that bureaucracies often like to interpret the term as a mandate to punish the politically incorrect according to status fashions of the day. Slipping the amorphous term “ethical” into legislation avoids the unpleasant necessity for a government to clearly state what is and is not legitimate behaviour. They can merely leave this to the whims of bureaucrats who they suspect, with good reason, will carry out their own views.
In my briefings on this issue with officials from Treasury, I have gone to great lengths to ascertain exactly what procurement officials take this term to mean. What is it that they would regard as ethical behaviour? How would this consideration affect their judgment? My briefings on the issue give me no great confidence that this standard will be applied in a reasonable way. The procurement principle of ethical behaviour for procurement officers is defined in Probity and ethical behaviour procurement circular 2003/06, which says:
Officers engaged in procurement are to employ and display the highest levels of ethical behaviour.
Officers are to maintain high ethical standards when undertaking procurement activities and promote an environment where Territory entities and suppliers are able to deal with each other on the basis of mutual trust and respect.
I am not satisfied that an objective standard exists in relation to the actions of private businesses. In my briefings I was informed by the officials that they regard the principle as meaning merely that they should deal only with suppliers who comply with their legal obligations. If this is the case, this would indeed be an objective standard and should clearly be spelled out in the legislation rather than using the subjective term “ethical”.
But even with this interpretation there are a host of potential problems. How are administrators to decide who is complying with their legal obligations and who is not? Are administrators to have regard only to convictions imposed by the judiciary? Apparently not. When I was briefed, Treasury officials were clear that they would not require a conviction to exclude a potential supplier on ethical grounds. They would, as they put it, make their own inquiries and take advice from a range of agencies to determine this fact. This surely raises questions over the proper activities of the executive. Is the executive government now to act as judge, jury and procurement executioner?
But there is further danger still. I was told that from time to time other government personnel have proposed exclusions of suppliers on other grounds such as if the supplier engages in an unethical—not illegal, but unethical—line of business. We are all aware of what this means. It means that activities that are legal under ACT law may nevertheless be punished by stealth whenever a government bureaucrat takes a dislike to a particular company or industry. If you do not like mining or oil companies, punish away. If you do not like pharmaceutical manufacturers or defence suppliers, deem them unethical. Do not feel that you have to, say, account to the public by passing a law against these activities; just punish people in a non-transparent way by
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