Virtue and the Three Monkey Defence: Regulating Ethical Conduct in the Australian Public Service.

Abstract

The thesis is an investigation of the efficacy of the “values-based” ethics regulation system (“system”) operated by the Australian Public Service (“APS”). Normative propositions which identify virtue, human character, or dispositions to behave, as determinatively contingent factors in public officials’ compliance with their statutory ethics obligations serve as an entry-point for the investigation. The proposition, that a public officer’s compliance with statutory ethical obligations is down to virtue, is critiqued from the standpoint of the tension which arises from two mutually incompatible narratives argued to coincide in relation to perceptions of ethical conduct in the APS; the first ‘official’ narrative is in the form of the APS Commissioner’s annual State of the Service Report, which regularly reports near perfect compliance of APS officers with their ethical obligations. The second narrative arises from myriad news reports, parliamentary inquiries and whistleblower disclosures, of apparently considerable and systemic misconduct, serious misconduct, corruption, and other forms of misfeasance.

In order to put this analysis into effect, the thesis poses the following questions:

- To what extent is virtue – expressly or impliedly – a constituent theoretical component in the development of the liberal-democratic tradition and, in particular, the model of Westminster public administration which developed from this tradition in the nineteenth-century?

- Does the APS system of ethics regulation rely upon a virtue-ethics type methodology, or is one implied in its design?

- What challenges are posed to the efficacy of the APS system of ethics regulation from the standpoints respectively of situationist ethics and sociological theories of interaction?

The thesis investigates the historical place of virtue (and related concepts) in the theoretical formation of the liberal-democratic project, and particularly the conceptual development of the social contract and the Westminster model of public administration. The triumvirate concepts of trust, legitimacy, and consent, provide an analytical prism through which to critique the notional place and operation of the statutory system of ethics regulation in the APS and, particularly, certain (arguably) virtue-like statutory provisions which are traditionally emblematic of, or otherwise fundamental to, the principles of Westminster public administration. Nineteenth-century developments such as the disappearance of “virtue” from public discourse and the formative development of the idea of the ‘permanent civil servant’ are analysed in their historical context. The evolution of the modern APS, from its traditional Westminster formulation, to the current results-focused “values-based” system, is described and critiqued in terms of the resulting tensions for the accountability and impartiality of public servants.

Finally, the proposition that virtue must properly constitute the basis for a public officer’s compliance with statutory ethical obligations is critiqued from two theoretical perspectives that pose a challenge to virtue-ethics: firstly, the current debate between situationist ethicists and virtue ethicists as to the validity of the so-called fundamental attribution error; and, secondly, interactionist theories, focusing in particular on the work of Harold Garfinkel, Erving Goffman, and Anthony Giddens. The thesis proposes that the (unacknowledged) primary purpose of the APS ethics regulation system is to manage perceptions of legitimacy for the sake of the social contract.