Australian values and obligations: a follow up

We often hear politicians spouting about ‘mutual obligation” – usually in the context of Centrelink benefits or the like.  The emphasis seems always to be on what the recipient of benefits must do – not on the obligation of Centrelink or the Government. 

What does mutuality require from that side of the bargain?  Is there any more to it than that the Government might pay you a benefit if you jump through all the hoops it dreams up?

On 17 September, Pearls and Irritations published my article about the Australian Values Statement.  It dealt with the values, rights and obligations of Australian people, and suggested that there should be a corresponding statement about the obligations which our governments have towards us – to act lawfully; to promote freedom and dignity of the individual, the rule of law, equality, egalitarianism, mutual respect, tolerance, fair play and compassion for those in need; to be trustees for the public good; and to operate transparently and honestly.

There seems to be an absence of mutuality, for example, in the rules surrounding the MyGov website, which all recipients of welfare benefits are effectively forced to use.  The terms of use of the website are brutally and unconscionably one sided:

“You are responsible for reading all your notifications and MyGov messages in a timely manner.

By creating a MyGov account, you are agreeing to receive all correspondence [Centrelink] decides it wants to send to you via the MyGov Inbox.

We are not responsible for:

  • making sure MyGov is error free;
  • ensuring any defects with MyGov will be fixed;
  • ensuring that you have continuous access to MyGov;
  • any Loss as a result of your use, or your inability to use, MyGov or [Centrelink];
  • any Loss as a result of you not accessing a MyGov Inbox message;
  • any notification delivery failures to your nominated mobile number or email address, telling you to access your MyGov Inbox to read a message;
  • ensuring that the information on a [Centrelink] website is accurate, complete, current or does not infringe on the rights of any person;
  • how [Centrelink] operate[s], including content of the messages they send you through the MyGov Inbox;
  • the security of your personal information while it is being collected by, stored or passing through a [Centrelink] system”.

Pertinent to the issue of the obligations on the federal government are some of the provisions of the Public Service Act 1999.  Presumptuously and smugly it says that the “APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government” and that the “APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.” That is under the heading “APS Values”, but it sounds to be rather more a vision or mission statement.

The section goes on in the same vein:  “The APS respects all people, including their rights and their heritage” and the “APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.”  Would that it were always so.

The Act obliges APS employees to uphold the APS Values.

The Act also imposes obligations on individual Commonwealth public servants, including that they must: behave honestly and with integrity; act with care and diligence; treat everyone with respect and courtesy, and without harassment; comply with all applicable Australian laws; maintain confidentiality; take reasonable steps to avoid conflicts of interest; use Commonwealth resources in a proper manner and for a proper purpose; not provide false or misleading information; and not improperly use inside information or the employee’s duties, status, power or authority.

Companies

There is another important category of persons in Australia in addition to individual people – what the law calls bodies corporate – companies.  They benefit in many ways from being given recognition and the status of legal persons.  They get to exploit our mineral and other resources; they can employ our people; and lobby our politicians and bureaucrats.  They get the protection of our laws and the institutions which enforce them.  They are able to use public facilities including transport and communications.  What obligations should they have?

The Corporations Act, under which most are established, is silent on that issue.  The Act contains lots of dos and don’ts about how companies are to conduct themselves in a regulatory sense, but does not set out any general obligations on companies as to their behaviour towards the community and people in it.  Likewise other laws, such as those concerning fair trading, the environment and taxation, do set out certain obligations, but not general obligations and values akin to those in the Australian Values Statement:  to respect the freedom and dignity of the individual, freedom of religion and from discrimination, equality of men and women and a spirit of egalitarianism, mutual respect, tolerance, fair play and compassion for those in need.

The objection might be made that, in reality, companies are comprised of individuals; and those individuals have such obligations – so that suffices.  There are two good rebuttals to that objection.  First, as we see in the case of Rio Tinto, the people who lead companies which are very active in Australia are not always Australians, and do not always live in Australia.

Secondly, for some reason, very often the directors and employees of companies leave their values at the door when they go to work.  I do not mean to suggest that it is always easy to act ethically when there are pressures to advance an employer’s interests, including by cutting ethical corners.  That is one very good reason why we need somehow to entrench statements of obligations, so that employees don’t misconstrue their obligations to their employer as being a higher duty or more important than to act ethically.

A statement of obligations for companies might include to be good environmental citizens, to be good corporate citizens including not being party to artificial tax avoidance measures, to act lawfully, to play fair and to treat people fairly, and to operate transparently.

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Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

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