Public duty, private interests: pre-separation conduct, post-separation employment and lobbying

Speaker:
Robert Needham
Chairperson, Crime and Misconduct Commission

Abstract:
One area of public life that is increasingly in the spotlight is the post-separation employment and lobbying activities of former public officials. It is relatively common nowadays for commercial organisations to ‘head-hunt’ senior executives from the public sector. The private sector recognises the benefits that can be gained from having access — facilitated through employees with public sector experience — to government decisionmakers.

This area of public life and the related area of pre-separation conduct were highlighted in a CMC investigation and ensuing public report published in December 2008. The CMC received allegations that a former director-general of a government department misused departmental information for his personal benefit and failed to disclose, while in office, a personal interest in a proposed private training company. Evidence obtained showed that he gave considerable assistance to his future employer, including:

• developing a strategy paper which included a suggestion aimed at damaging the business of the department he headed
• disseminating in-confidence departmental information which may have provided his future employer with a commercial advantage
• requesting subordinate officers within his department provide (and in some cases develop) departmental information and materials which he then passed on to his future employer
• using his position to identify ‘target’ organisations for his future employer, for potential takeover.

The CMC found that the officer placed himself in a position of a conflict of interest with respect to the future company and breached his duty to act in the public interest.

The investigation led the CMC to suggest two legislative reforms which the government has since indicated it will implement:

• the introduction of an offence entitled ‘misconduct in public office’
• an amendment to existing public service legislation relating to conflicts of interest.

The investigation also served to illuminate broader integrity issues the CMC had been monitoring, such as:

• the pre-separation conduct (the conduct of a public official in the period prior to their leaving the public sector)
• post-separation employment of public officials.

In relation to pre-separation conduct, the CMC examined how the prospect of private sector employment might cause a public official to act contrary to the public interest, and identified the specific risks involved. The report outlined active prevention measures that individual agencies should implement to prevent conflicts of interest developing. In relation to post-separation employment, it examined the circumstances in which the private sector employment of former public officials could potentially compromise good government administration and decision making and might, in certain circumstances, give rise to a perception of inappropriate influence.

In order to canvass all the issues associated with post-separation employment, it was necessary to scrutinise the practice of lobbying and lobbyists’ interactions with government representatives. This issue was particularly topical with the lobbying and post-separation business activities of former public officials attracting increasing attention in the public domain.

The CMC’s investigation and research highlighted a lack of accountability and transparency with respect to the lobbying of public officials. The report contained recommendations intended to bring the rules surrounding post-separation employment and lobbying in Queensland into line with advances in other national jurisdictions.

The Queensland Government has since adopted the CMC’s recommendations and implemented a Contact with Lobbyists Code and Register of Lobbyists as well as introducing quarantine periods relating to the post-separation employment of certain public officials.