Sunday, January 8, 2017

Sussan Ley and the Gold Coast apartment: murky rules mean age of entitlement isn”t over for MPs

Sussan Ley has stood aside as health minister while the prime minister’s department investigates her travel expenses. This move followed increased pressure on her to resign following claims she misused her travel entitlements and breached the ministerial standards.

In 2015, Ley travelled to Queensland to make an announcement at a breast cancer clinic as part of her ministerial role. During her trip, she bought a A$795,000 Gold Coast apartment at an auction from a Liberal donor, which was said to be “neither planned nor anticipated”. Ley claimed $3,125 of taxpayer money for that trip.

She has also made multiple other taxpayer-funded trips to the Gold Coast in the last three years. Eighteen of these cost the taxpayer $53,877.

Prior to standing aside, Ley apologised and agreed to repay the travel expenses for the 2015 Gold Coast trip, plus three other trips with irregularities. She said:

I have spoken to the prime minister and he agrees that this claim does not meet the high standards he expects of ministers. I apologise for the error of judgement.

Has Ley breached the ministerial standards?

Ministerial standards set out the rules by which ministers are expected to conduct themselves. The principle underlying them is that ministers should uphold the public’s trust as they wield a great deal of power deriving from their office.

Turnbull’s statement of ministerial standards proclaims:

Ministers and assistant ministers are entrusted with the conduct of public business and must act in a manner that is consistent with the highest standards of integrity and propriety.

The standards provide that ministers are expected to be able to demonstrate that their actions in conducting public business were taken “with the sole objective of advancing the public interest”.

The standards also say ministers must scrupulously ensure the legitimacy and accuracy for any entitlement claims. This is because they are given resources at public expense that should not be used wastefully.

It is unclear whether Ley has breached the ministerial standards. She will have breached the standards if she was found not to be acting in the public interest, or if her entitlement claims are judged to be illegitimate. But the rules on claiming ministerial entitlements are unclear and very complex.

Ministers have to travel to perform official duties relating to their portfolio. Public funds should be provided to allow them to carry out their duties effectively and without impediment. Ley’s trip to announce the availability of new medicines and to meet with patients would seem to be within her purview as health minister.

The key issue here is that Ley has travelled for dual purposes, one public and one private. As she has acknowledged:

While attending an auction was not the reason for my visit to Queensland or the Gold Coast, I completely understand this changed the context of the travel undertaken. The distinction between public and private business should be as clear as possible when dealing with taxpayers’ money.

But the parliamentary entitlements system is unclear about trips for dual purposes. There is no definition of “parliamentary business”. The definition of “official business” gives no guidance on trips with mixed public and private purposes.

So, it is not clear whether Ley has misused the entitlements system and therefore breached ministerial standards.

Do we need to reform the system?

It is unsatisfactory that the parliamentary entitlements system is so amorphous that we cannot easily work out whether ministers have breached the rules or not.

Then-speaker Bronwyn Bishop’s 2015 “Choppergate scandal” prompted an independent review of parliamentary entitlements. It proposed a new “dominant purpose” test: that is, whether the dominant purpose of the travel is for ministerial or parliamentary duties and not in another capacity.

The rationale behind the test is that ministers should not seek to disguise as official business an activity whose dominant purpose is personal or commercial. This reform is a much-needed step toward improving accountability over MPs’ entitlements.

The Turnbull government has agreed to adopt the recommendations of the review. But as Ley’s actions happened before the review, she will be judged under the previous rules.

Another issue with the system is that the prime minister enforces ministerial standards, rather than an independent authority. Such enforcement of ministerial standards has been patchy and inconsistent.

Whether a minister resigns depends on the prime minister of the day and if there is media furore and public outrage over an issue. It is ultimately politics rather than principle that determines which ministers stand and which fall.

This could be improved by giving responsibility for enforcement of ministerial standards to an external agency. This has been done in Ireland, where the Standards in Public Office Commission supervises politicians’ compliance with Ireland’s Ethics Acts.

What happens next?

If the prime minister finds that a minister has breached the standards in a substantive and material way, he or she can require the minister’s resignation.

Malcolm Turnbull has asked his departmental secretary, Martin Parkinson, to thoroughly investigate Ley’s travel claims. Her fate rests on the outcome of that investigation and any subsequent media attention.

As holders of high elected office, ministers are the custodians of public trust. But Australia’s current entitlements system for MPs is out of step with public expectations. We need a robust system of parliamentary entitlements and active enforcement of ministerial standards to help restore trust.

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