Page 1079 - Week 05 - Tuesday, 29 May 2007
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on behalf of a territory entity to perform the task honestly, without favour or prejudice; to spend public money efficiently and effectively and in accordance with the law and government policy; to deal fairly, impartially and consistently with suppliers; to keep confidential all sensitive information obtained as part of the procurement activity; to not have an actual conflict of interest in relation to a procurement activity; and to not seek or accept any remuneration, gift, advantage or other benefit except as may be allowed in the normal course of their duties.
Those are provisions that are currently provided in the guidelines but, as I said in response to Mr Mulcahy’s expressed concern about ambiguity and interpretation, the ACT Government Procurement Board does propose to update the guidelines and will in that updating of the guidelines expand on the requirements of ethical behaviour, and I hope that with that updating and expansion Mr Mulcahy’s concerns will be allayed.
MRS DUNNE (Ginninderra) (11.51): The Chief Minister’s exposition there about what is in the guidelines actually brings home exactly the point that Mr Mulcahy was making when he said that the concept of ethical behaviour is an extraordinarily flexible thing. It is false for Mr Stanhope to say that the opposition, and Mr Mulcahy in particular, are the only people who find this term subjective and that they do not understand what is meant by “ethical”.
As Dr Foskey mentioned, thousands of years of philosophical debate have dwelt upon the nature of ethics. Dr Foskey talked about Kant. Kant advocated outright altruism and self-sacrifice, but Bentham and Mill advocate the ethics of utilitarianism. Others advocate a whole range of ethical systems. Are we going to have Nitschke and ethics here when we just advocate subjective egoism, or might we follow the precepts of Ayn Rand, advocating rational egoism? How is the Chief Minister, how is the Treasurer, going to define ethics? He admitted here today that this is an expanding definition and that the guidelines will be changed to have further definitions of ethical behaviour.
The definitions cited by the Chief Minister are not in legislation. They will be changed by regulation or by notifiable instrument some time in the future. The whole issue of having these sorts of definitions in regulations or instruments begs the notion of ethical behaviour and terms like probity and legitimacy. These guidelines are subject to change and it is usually the practice in legislation not to have such flexible terms. For instance, in England the courts of equity do not proceed on such subjective terms as ethics; instead the courts have developed rules that seek to avoid subjective terms like this.
It is not that anyone who breaks these guidelines will be deemed by society to be unethical and punished according to society’s precepts. They will be deemed to have been unethical in their procurement by some bureaucrat, according to a set of guidelines that does not get any public scrutiny. There are real problems here in the way that we give power to people who have no accountability to the public to make decisions about the way someone has behaved. The levels of definition in this legislation and in the supporting guidelines are so flexible that on any one day no-one will know how the law stands.
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