Public Interest and Public Trust

Pubic Interest and Public Trust

The idea of parliamentarians acting in the public interest to carry out a duty of public trust is fundamental to the principle of government and parliamentary accountability and transparency.

This is a list of resources assembled by ART that refer to the meaning of that principle and which develop and extend the idea both morally and legally.

A simple definition of public trust is that power entrusted in elected officials in their role as public officers. Public interest is the purpose for which public trust should be exercised.

This principle is also captured in The Fitzgerald Governance Principles;

The Fitzgerald Governance Principles;

Prepared by former Justice Tony Fitzgerald, QC, AC and the Australia Institute.

  • Govern for the peace, welfare and good government of the State;
  • Make all decisions and take all actions, including public appointments, in the public interest without regard to personal, party political or other immaterial considerations;
  • Treat all people equally without permitting any person or corporation special access or influence;
  • and
  • Promptly and accurately inform the public of its reasons for all significant or potentially controversial decisions and actions.

 

Books

Ken Coghill and Charles Sampford, (Eds.). (2013). Fiduciary Duty and the Atmospheric Trust. Ashgate Publishing, Ltd., 28 Feb 2013312 pages

” This book explores the application of concepts of fiduciary duty or public trust in responding to the policy and governance challenges posed by policy problems that extend over multiple terms of government or even, as in the case of climate change, human generations. The volume brings together a range of perspectives including leading international thinkers on questions of fiduciary duty and public trust, Australia’s most prominent judicial advocate for the application of fiduciary duty, top law scholars from several major universities, expert commentary from an influential climate policy think-tank and the views of long-serving highly respected past and present parliamentarians. The book presents a detailed examination of the nature and extent of fiduciary duty, looking at the example of Australia and having regard to developments in comparable jurisdictions. It identifies principles that could improve the accountability of political actors for their responses to major problems that may extend over multiple electoral cycles.”
Douglas, B., & Wodak, J. (Eds.). (2015). Who speaks for and protects the public interest in Australia? Essays by notable Australians: Australia21 (available online, free)

“This collection of short sharp essays by 39 leading Australian thinkers and agents of change addresses the question –  who speaks for and protects the public interest in Australia?

Ranging across the political system and touching on a variety of  issues including how we measure the public interest, climate and the environment, Indigenous futures, refugees and asylum seekers, inequality, education and early childcare, it concludes with discussion on how to fund the public interest and explores new forms of democratic engagement.”

This book was discussed and Bob Douglas interviewed  on ABC RN Sunday Extra, 15 March 2015. “Who Speaks for Australia’s public interest?”

 

Journal Articles

David Lusty. (2014) “Revival of the Common Law Offence of Misconduct in Public Office.Criminal Law Journal 38: 337.

David Lusty,  Special Counsel, Australian Securities and Investments Commission has written a synopsis of how the principle of public trust stands behind and informs the offence of misconduct in public office. This article, written by David in a personal capacity, explores the antecedents to the idea of public trust and then shows how it has informed modern principles of public office. It establishes a legal grounding for the moral principle of public trust.

A PDF of this article, first published in Criminal Law Journal, Thomson Reuters, is available here with their kind permission.

Lusty, D. “Revival of the Common Law Offence of Misconduct in Public Office” (2014) 38 Criminal Law Journal 337

Abstract

The ancient common law offence of misconduct in public office has recently enjoyed a major resurgence in many jurisdictions, including New South Wales and Victoria, yet it has received relatively little attention from academics and commentators. This article presents a comprehensive analysis of the offence, drawing upon historical precedents and contemporary case law from around the world. It is submitted that this 800-year-old offence has stood the test of time and continues to provide a crucial mechanism for preserving the integrity and fidelity of public officials, including Members of Parliament and Ministers of the Crown.

Lectures
Public Office – Public Trust. by the Hon Tim Smith Q.C.

INTEGRITY IN GOVERNMENT – SEARCH CONFERENCE:
University of Melbourne Law School 4 December 2012

This paper, given as a lecture, is an introduction to the idea of “public trust” as a central feature of Parliamentary accountability.

It elaborates on the basic proposition, drawn from Paul Finn, that the fundamental obligation of parliamentarians and public officers is to put “their principals’ interests ahead of their own … The duty demands a denial of self interest.”

This means that “The essential obligations of the members of the three branches of government – the members of parliament elected by the people, the executive branch and the
judicial branch owe their essential obligations to the people they are supposed to serve”.

“Public Office, Public Trust” Lecture. University of Melbourne Law School 2012.

Integrity in politics? Public office as a public trust? Is there hope? by the Hon. Tim Smith Q.C.
Paper presented to the University of the Third Age, 23 July 2014

This paper addresses in more depth than the 2012 paper, the idea that “public office is a public trust “. It argues that ‘public trust’ has a degree of legal standing that makes it similar to fiduciary duty.   This principle goes to a range of public offences, including official misconduct, willful neglect of duty, and embarking on a course of conduct the public officer has no right to undertake.

The paper calls for a restoration of the principle of public trust, once active, now lapsed, that would entrench the understanding that accountability is an inescapable consequence of ascension to public office. The goal is to ensure that “elected  representatives  and  public  servants  and agencies will understand and accept that their fundamental and over-riding obligation is that  they put the public interest first.

“Integrity in Politics? Public Office as a Public Trust? Is there Hope?” Lyceum Club and U3A, 2014.

Government Secrecy and Urban Planning – The Forgotten Trust and Reform by The Hon Tim Smith QC.
Paper delivered to the University of Melbourne Urban heritage Conference. 2 Oct 2014

This paper continues the argument about the relevance of the public trust principle by applying it to urban planning. Urban development and the contracting of major projects present significant risks for corruption.

“There has also been the development of a lobbying industry and movement between elected office and, on retirement, employment in lobbying.”

Government Secrecy and Urban Planning – The Forgotten Trust and Reform