4.1 Acting in the public interest
The objective of the Ethical framework for the government sector explicitly recognises the role of the government sector in preserving the public interest.
The NSW Ombudsman’s Good Conduct and Administrative Practice – Guidelines for State and Local Government provides an important discussion on the nature of the public interest, conflicts of interests and their application by modern public sectors.
The following is a short extract taken from Chapter 3 of this publication.i
The overarching obligation onpublic officials
Public officials have an overarching obligation to actin the public interest.They must perform their official functions and duties, and exercise any discretionary powers, in ways that promote the public interest that inapplicable to their official functions.
This issue was addressed by the Royal Commission into the commercial activities of the government sector in Western Australia (the ‘WA Inc Royal Commission’). Inits report the WA Inc Royal Commission said that one of the two fundamental principles and assumptions upon which representative and responsible government is based is that:
- The institutions of government and the officials and agencies of government exist for the public, to serve the interests of the public. (Volume 1, chapter 1 at 1.2.5)
The Royal Commission noted that this principle (the‘trust principle’) “…expresses the condition upon which power is given to the institutions of government, and to officials, elected and appointed alike”.Later in its report it noted that “[g]overnment is constitutionally obliged to act in the public interest” (Volume 1,Chapter 3 at 3.1.5).
The components of the publicinterest
Acting in the public interest has two separate components:
- Objectives and outcomes — that the objectives and outcomes of the decision-making process are in the public interest, and
- Process and procedure — that the process adopted and procedures followed by decision-makers in exercising their discretionary powers are in the public interest, which would include:
- Complying with applicable law (both its letter and spirit)
- Carrying out functions fairly and impartially, with integrity and professionalism
- Complying with the principles of procedural fairness/natural justice
- Acting reasonably
- Ensuring proper accountability and transparency
- Exposing corrupt conduct or serious maladministration
- Avoiding or properly managing situations where their private interests conflict or might reasonably be perceived to conflict with the impartial fulfilment of their official duties, and
- Acting apolitically in the performance of their official functions (not applicable to elected public officials).
What does ‘public interest’mean?
It is important to draw a distinction between the question and its application — between what ‘is’ the‘public interest’, and what is ‘in’ the ‘public interest’ in any particular circumstance.
What is not in the public interest?
In some ways it is easier to distinguish the public interest from what is not.
For example the ‘public interest’ can be distinguished from:
- Private interests — of a particular individual or individuals (although there are certain private ‘rights’ viewed as being in the public interest)
- Personal interests — of the decision-maker (including the interests of members of their direct families, relatives, business associates, etc) — public officials must always act in the public interest ahead of their personal interests and must avoid situations where their private interests conflict, might potentially conflict, or might reasonably be seen to conflict with the impartial fulfilment of their official duties
- Personal curiosity — i.e. , what is of interest to know, that which gratifies curiosity or merely provides information or amusement (to be distinguished from something that is of interest to the public in general)
- Personal opinions — for example, the political or philosophical views of the decision-maker, or considerations of friendship or enmity
- Parochial interests — i.e. , the interests of a small or narrowly defined group of people with whom the decision-maker shares an interest or concern, and
- Partisan political interests — for example the avoidance of political/government or agency embarrassment.
These can be categorised as motivation type issues that focus on the private, personal or partisan interests of the decision-maker (and possibly also those of third parties).
What is ‘the public interest’?
‘The public interest’ is best seen as the objective of, or the approach to be adopted, in decision-making rather than a specific and immutable outcome to be achieved.
The meaning of the term, or the approach indicated by the use of the term, is to direct consideration and action away from private, personal, parochial or partisan interests towards matters of broader (i.e., more‘public’) concern.
While the meaning of ‘the public interest’ stays the same, the answer to the question what is ‘in’ the public interest will depend almost entirely on the circumstances in which the question arises.It is this variable content which makes the term so useful as a guide for decision-makers.
For further information from the NSW Ombudsman on how to act in the public interest, the following resources are also available:
- Good Conduct and Administrative Practice: Guidelines for state and local government (2nd edition), NSW Ombudsman: www.ombo.nsw.gov. au/__data/assets/pdf_file/0016/3634/Good-Conduct- 2nd-edition-amended.pdf
- Chris Wheeler, Deputy Ombudsman, ‘The public interest revisited —we know it’s important but do we know what it means?’ in Australian Institute of Administrative Law Forum, No 72, March 2013, at page 34: www.aial.org.au/Publications/ webdocuments/Forums/Forum72.pdf
- How do public interest considerations impact on the role of public sector lawyers?, presentation to the Public Sector In-House Counsel Conference Canberra, 30-31 July 2012, by Chris Wheeler, Deputy Ombudsman: www.ombo.nsw.gov.au/__data/assets/ pdf_file/0019/8065/Public-interest-Presentation- How-do-public-interest-considerations-impact- Public-Sector-In-House-Counsel-Conference- Canberra-30-July-2012.pdf
- Public interest factsheet, NSW Ombudsman: www. ombo.nsw.gov.au/__data/assets/pdf_file/0014/3713/ FS_PSA_16_Public_interest.pdf.