By Margo Kingston
January 14, 2003
by Margo Kingston, September 2002
When you think about ethics, by which I mean ‘professional standards of conduct’, your starting point has to be your own.
Just after I started work in the big smoke of Sydney many years ago, the Herald chief of staff told me in confidence that the paper was sending a reporter posing as a prospective student into a Sydney high school to report on the youth of today in today’s public education system. The editor was to pretend to be his father when enrolling him, but was too busy to do so. Could I pose as my colleagues aunt?
Weeks later, while the reporter was still at the school, another reporter stumbled upon the project and leaked it, resulting in political condemnation in the parliament and outrage from our readers and my colleagues. Thus I discovered that journalists in the journalists union were bound by a code of ethics.
This was the first time I’d heard of it. I had a duty, personal to me, to tell anyone I was speaking to for a story what my job was, unless the matter was of such compelling public interest that I was duty bound not to. Everyone in my industry believed that this was not a case where the exception applied.
The shock of the incident marked the beginning of my deep interest in journalistic ethics. I thought about my role in relationship to my readers, and my duties to assert my professional ethics to avoid abuse of power by my industry.
I was trained as a lawyer, not a journalist. I knew my ethical duties as a lawyer: My duty was not only to the client but to the court, and I should never knowingly use as evidence material I knew to be false. So I don’t agree with the idea that ethics are instinctive in all cases. Written principles are required, and they need to be vigorously communicated as a matter fundamental to your career.
I believe the principles should be general, not particular, as particularity breeds legalism and the dangerous belief that technical avoidance equals compliance with ethical duty. Every ethical code should include not only the principles to which adherence is required, but the reasons why. For ethics, in the end, is about ourself in relation to other individuals and to our society.
The elites are in relationship with the people, and professional ethics – by accountants, lawyers, engineers, clergymen, architects – are constraints on abuse of power by the elites. A sellout of ethics for money, power, or survival, weakens the stability of the polity itself.
In the early 1990s, a construction company sued an establishment Brisbane law firm for its costs in a prolonged Federal Court civil action. The firm had acted for a developer, since jailed, who instructed it to resist and delay an action for payment of a debt due for building a shopping centre by alleging fraud. There was no evidence for this accusation. The ethical duties of solicitors and barristers forbid them from pleading fraud without supporting evidence.
When the developer went into liquidation, the plaintiff bought its legal files for a pittance and sued the legal firm. The barrister involved was Ian Callinan QC, since appointed a High Court judge.
So, a former leader of the Queensland bar and a partner in Queensland’s best connected law firm were caught red-handed with their pants down.
The Queensland Law Society, a body backed by legislation to police the ethical standards required by solicitors, would not say whether or not it was examining the solicitor’s behaviour. It was confidential. And the society implied that it only acted on a complaint, not of its own motion. End of story.
The president of the Australian Bar Council, NSW barrister Bret Walker QC, called for an inquiry into Justice Callinan’s fitness to remain a judge. The Senate numbers for an inquiry fell away after veiled threats by the government to target Justice Kirby in revenge. End of story.
But worst of all for me, the profession split on whether the two men had done anything wrong. Legal academic Professor Greg Craven, for example, said everyone did it, so why worry?
That meant the ethical edifice was a sham. It shot to pieces lawyer’s claims of effective self-regulation, stripped the trust shown by judges to lawyers on the assumption they were not abusing process, and allowed rich people to waste limited court time to wear down litigants with a just cause.
The ethical duties of a professional engineer, architect, lawyer, doctor or accountant – whether working in business or for government – are a counter-balance to the exploitation of others by organisations and individuals who have no ethics and care only for short term self-interest. Break these down, and the system is in crisis. Witness Enron and Arthur Anderson. Enron and investment banks. Enron and political figures.
The dominant neo-liberal ideology has helped trash those values in our society which cannot be quantified to a cash figure. That rules out or at the very least severely compromises ethical imperatives, as all the system’s incentives promote the glorification of individual freedom to pursue self-interest and a contempt for values other than bottom-line cash.
Ideas for reform
I’ve been trying for ages to think of a way to enforce journalists’ ethics without government legislation. I can’t. Only journalists belonging to the union have a duty to comply with its code of ethics,and many aren’t in the union. The bosses have no such duty unless they voluntarily sign up to a company code of ethics, and can and do employ people not in the union. In any event, ethics should be seen as ideals to strive for, ideals that can be highly nuanced, and easily forgotten.
Ethics are also a group standard, meaning they requires constant discussion and thought between colleagues, and that requires openness.
So what I’m thinking of is framework legislation, to cover all jobs with ethical duties. It could require all professions to have an ethical oversight body comprised of a chairperson and directors agreed to by consensus between the profession’s leaders and consumer groups, and if consensus cannot be reached, by election. Membership of the professional body would be compulsory to work, and members of the oversight body would have legal protection against defamation and the like.
The group or individuals on it would give advisory opinions to members in a bind. These would be regularly published in a pro-forma way. If a professional accidentally breached an ethical duty, apologies could be lodged, and published. The body would look at complaints it judged worthy of consideration or those it found out about independently, in open session. It would seek the views of members. It would publish reasons.
Except for extremely serious matters, like a psychiatrist sleeping with a patient, there would be no penalty or a reprimand on proof of a first breach. What I’d be looking for is an ongoing conversation, a genuine engagement, for the profession, not a penal system. Because the system is not penal, the person under investigation would be required to speak for him or herself.
The law partner in my example would be called to account. Both he and the barrister would have had access to authoritative advisory opinions if they had doubts. And what happens when someone in breach of professional ethics is made a judge before disclosure of the breach? Only parliament can sack a federal judge for not being fit for office. To strip the politics away as much as possible, a judicial oversight body would investigate and present a report to parliament. It could take it from there.
This week I asked Webdiary readers what they thought about ethics. I’d like to read from an email from Harry Heidelberg, a nom de plume to protect his career.
I’ve faced several ethical dilemmas in my working life. In one I was involved in the audit of a government bank in a developing country. It was clear to me that the financial statements of the bank were the proverbial croc of shit. I made this known to all involved and suggested massive asset write downs. I came to this conclusion about many assets – all basically worthless or certainly worth a fraction of their book value. Millions of dollars were involved. Lots of vested interests. Lots of big fish in a small pond.
How did I process the above? I convinced my boss in the developing country that we had no choice but to convince the bank to agree to massive asset writedowns or refuse to sign the audit. He was overruled by the developed country headquarters of our firm. I resigned but “came back” on the condition that I would not sign anything associated with that audit. The end result was that relationships were poisoned by my failure to tow the line of Big City, Developed Country, Big Accounting Firm. My career in that firm was never the same again. It’s hardly a Hollywood ending but I’m still glad I did that. My reward was internal. I could live with myself.
I later learned that everyone in that country’s administration was corrupt and later the bank collapsed. I did my job, or at least tried to. What a pity others didn’t. I suppose I could and should have done more. I made my personal protest, but I admit that by not going public, I weaken my superficially pure stance. This is a good reason why we need sound whistle blowing systems. A whistle blower should not have their life destroyed. A career setback is one thing, but not a destruction.
In another case, I was working for a foreign multinational. We had a particularly good year. We had way past what we needed for all senior management to get their bonuses. I was asked to cover up GOOD financial news. The idea was that we should report all we needed as revenue and profits in one year to get to the bonus level and then give the following year a kick start by shunting the part we “didn’t need” into the following year. I had some of the worst professional arguments I have ever had over that one.
I can be pragmatic as anyone but I would never have done what they wanted me to. In effect I would have been telling the headquarters (and for that matter the Australian authorities – tax and ASIC) that our revenue and profits were MUCH lower than they actually were. It was millions, again. All around me they were saying it was harmless because we were only “delaying” good news into the next year. It was just a timing thing.
Bullshit. Accounting is all about timing and if you can’t get the timing right you may as well give up. In effect we really had to say that inventory which was SOLD was still in our warehouse. They dressed it up in fancy language but that was the substance of it. My boss said that we had to do as we were told. I said no we don’t and I won’t. He asked whether I would resign if they went ahead with this plan and I said I would. I was under IMMENSE pressure. Not sleeping, filthy looks in the corridors etc etc.
That’s the part that stinks. Why should I resign for doing my job?
How did I process that one? I had a contact in headquarters I trusted. I told him about it and he said to do the right thing. Much to the fury of local people, I DID do the right thing. In the process I lost my most valuable staff member. He resigned in the midst of it because he too was ethical and couldn’t bear it anymore. I tried so hard to convince him to stick with me and that I would fix it.
In the end I got my way, I fixed it and the right results were reported. Again, relationships were poisoned.
Don’t believe existing bodies when they say they have it covered. I belong to one which has a members ethical counselling service. A mate of mine went to them in dire need of advice earlier this year and they were hopeless. They offered no help at all. The whole thing is window dressing crap. When you really need them, they won’t be there for you.
This mate of mine had to resign from his job to get out of his ethical dilemma and endure three months of frightening unemployment. Some people may treat this lightly but I think it is outrageous that a well known professional body has a so-called ethical counselling service that failed so abysmally. In the case of my mate it was serious stuff. His employer was on the verge of bankruptcy and hadn’t paid “group tax” (ie the pay as you earn tax deducted from employees) in nearly a year. No one cared for him. He’s a good guy and no one cared or listened. He could only trash himself to survive and sleep at night.
The new company I work for has an inspirational CEO. I know, I hear you moaning already. The days of inspirational CEOs are over. Not really. The right CEO for today is an ethical one. Long term interests of all companies and organisations are to behave ethically. Really.
The CEO of the company I now work for has established an “ethics ombudsman” in the headquarters. I suspect this move is a reaction to recent corporate scandals and a realisation that an internal process is required. Internal audit is hardly enough. We saw in Enron that internal audit questioned the practices but it did not help. Something more is needed. Something at a very high and very independent level. My current CEO should be commended. She is totally committed to ethics.
The idea of an internal “ethics ombudsman” is a great initiative, but Margo I think your idea is a great addition. You can have an “internally independent” process but ultimately you need something which can be totally pure in the sense of giving more than just the appearance of independence.
It has to be pure independence in fact, not just appearance. An internal process will always be seen as something which is more easily compromised.
All of us in the corporate world need to pause and reflect. Mere tinkering is not enough. A revolution is required and startling initiatives are urgently needed. I want to be startled. I want to be energised by something totally new. Faith and confidence in the system is key. That can’t be regained without substantial, far reaching changes.
Training is needed. Some have forgotten and need to be retrained in the ways of ethics. Some of it is indeed nuanced. That is why a discussion is helpful. We can never have enough discussion about this. It will never go away. I’m no saint and I’m all ears. I have become somewhat jaded, but live in hope.
Finally, I say show no mercy to those who act unethically. Absolutely none. A bit of carrot is nice but I reckon only a lot of potential stick will be the thing that will get some people acting ethically. Sydney’s full of crooks.
More people like Fels in this life would be good. A man with a mission. Less of the eastern suburbs set would be even better.
We urgently need a long, open and detailed debate on ethics. We did NOT learn the lessons of the 1980s. Are we to learn the lessons of the late nineties and early 21st century? We have to or the system will not recover
An ethics ombudsman in every big company! Wow! A place to go anonymously, if the ombudsman is an Alan Fels, for people like Harry, to nip unprofessional conduct in the bud.
Webdiarist Daniel Boase-Jelinek wrote:
I suggest that the problem with encouraging ethical behaviour is not that people don’t know what it (ethics) is, but that they don’t know how to respond without losing their jobs.
A couple of years ago I was invited to run a workshop for Environmental Engineering students at the University of WA. Environmental Engineers face ethical dilemmas all the time because their employers generally are companies that wish to promote projects that inevitably cause environmental destruction, and the environmental engineers are being used to justify this destruction and put a public relations gloss on it.
I used the research of Sharon Beder, professor of science, technology and society at the University of Wollongong, in working through a whole lot of issues with these idealistic students, searching with them to find a balance between protecting their integrity while keeping their jobs.
The outcome that they arrived at was that people working alone as whistle-blowers rarely and rarely succeed in getting their message out.
The students realised that the only alternative to becoming cynical was to work very hard to develop a community of support within and outside the organisation and to search collaboratively for ways to protect their integrity.
Ah development, where big money reigns supreme, where corporate donations buy political influence, where councillors and mayors and staff paid peanuts can be asked how much their integrity is worth and be paid it, where local government are so few expert reports must be taken at face value. The imbalance of power is too great. Communities feel powerless, no matter who they elect.
In cases where expert reports are required by legislation for the purposes of important decisions about our land and the financial state of our companies, these rampant conflicts of interest and imbalances of power must be fixed.
Here again, I’d go the legislative framework solution, with the professional bodies’ members to take charge of the process. You’d have a panel of acknowledged experts, all independent practitioners. The company would be allocated a relevant expert to prepare, say, an environmental impact statement as required by law, and pays his or her fees. If the company disagrees with the assessment, it could employ any expert it chose, and if the results materially differed, a panel of experts would decide which was right, the panel’s costs to be paid by the company. This system should also apply to auditors, who could not be chosen to audit a company from which thier firm earned non-audit fees.
In short, I want to empower professionals in all fields working in the public and private sectors to assert the values of their professions, and take pride in fulfilling their duties and maintaining their professional integrity. I want the ethics debate, and the rebuilding of the power of ethical standards to be conducted with reason and genuine engagement.
I want to rebalance the scales, so that many good people are able to insist on being ethical and not suffer for it, indeed to be thanked for it, and perhaps even promoted. I want ethics – integrity in the moment of choice – to become commonplace.