Stephen Bartos: Scott Morrison multiple-ministries saga comes at opportune time with integrity agency push

The interesting thing about the advice was not the headline finding but the commentary about Australia's system of responsible government.

The affair was problematic mainly because the appointments were secret. The Solicitor-General noted "it is impossible for the Parliament to hold ministers to account for the administration of departments if it does not know which ministers are responsible for which departments" and "to the extent that the public and the Parliament are not informed of appointments that have been made under section 64 of the constitution, the principles of responsible government are fundamentally undermined."

He also noted troubling implications for the public service. "Failure to inform at least the secretary of the department of the appointment ... prevents the department from taking appropriate steps to support and advise that minister". A secret ministerial appointment "undermines not just the proper functioning of responsible government, but also the relationship between the ministry and the public service."

There are two key messages for Australia's public servants: secrecy corrodes good governance, and some things are unethical even if technically legal.

Sometimes confidentiality is needed (for example, in relation to private client information). As a principle, though, transparency is desirable wherever possible. It improves accountability, provides the public and Parliament with assurances that actions are legitimate and above board, encourages better performance, and ensures unethical conduct is exposed and addressed.

The Solicitor-General has proposed a solution to the problem of secret ministerial appointments: legislation requiring all such appointments to be published. He considers "Parliament has power to enact such a requirement."

That shuts the stable door after this horse has bolted. It's unlikely any future prime minister would copy the Morrison secret ministry strategy. If, however, we allow public administration to be conducted in secret, some future prime minister is sure to invent a different way to subvert principles of responsible government.

What is needed is an entrenched habit of transparency in public service. If publication of full and informative details of public administration and decision making were to become standard practice, there would be less likelihood of underhand behaviours from prime ministers in future.

Officials in the Department of Prime Minister and Cabinet have been criticised for not speaking up.

We don't know if they were instructed to keep the multiple ministry scheme secret. If they were, they had no choice but to comply.

From Scott Morrison's perspective, acquiring secret powers seemed like a good idea at the time. It's a judgement call whether public servants ought to have revealed his actions.

Public servants should not be placed in the invidious position of being instructed to keep secrets that undermine responsible government. Speaking out might in theory be the right thing to do, but in practice could come at the cost of possible disciplinary action or sacking. It's too much to ask.

Rather, governments could protect public servants by establishing a presumption in Australian public administration in favour of transparency. With fewer secrets would come fewer instances of public servants being asked by a government to conceal the truth.

On ethics, legality is not enough. Although the Solicitor-General found that the secret ministry appointments did not break the law, they were still wrong. That applies across the public service.

There are many situations where conduct is legal but not ethical. For example: leaving the public service for a job with a company which has been awarded a lucrative public sector contract; misleading a Senate estimates hearing; lying to colleagues, staff, or bosses; using creative accounting to disguise an agency's poor financial performance; favouritism and cronyism.

None of these examples meet community standards of ethics.

Scott Morrison was never the ordinary suburban dad. That was an image created for public consumption. If he had been, he might have been a Rotarian or attended a meeting and would have known the Rotary four-way test. "Is it the truth? Is it fair to all concerned? Will it build goodwill and better friendships? Will it be beneficial to all concerned?"

The secret appointments failed that test. It concealed the truth, was unfair on other ministers and affected public servants who were kept in the dark, and ruined goodwill. But it was legal.

Ethics is not determined in law courts but in daily life: conversations at Rotary meetings, the pub, over the back fence.

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Legislation and written codes are limited. They can prescribe or proscribe behaviour in specified situations. What they cannot do is cover off all the new and unexpected ways people find to behave unethically. Principles are more effective guides to conduct.

The Scott Morrison revelations come at an opportune time. The government is working on establishing a federal integrity agency. It would be a mistake for it to be set up with a legalistic view of integrity (the politician's defence - "it wasn't illegal so it must have been OK").

The people working on the new agency are not basing their design on a legal view of integrity. That is now even less likely. The secret ministries affair reinforces the desirability of a federal integrity agency taking a broad ethical perspective on what constitutes appropriate conduct for politicians and public servants. An approach based on principles and community standards is the best option.