Of the four duties in section 27(1) of the Constitution, the first generates most of the work: the duty not to place oneself in a position in which one has or could have a conflict of interests, or might be compromised when discharging public or official duties.
Why “could have” changes everything
Ordinary usage treats a conflict of interest as something you either have or do not. Section 27(1)(a) reaches further back. It prohibits placing yourself in a position where a conflict could arise, or where you might be compromised.
Three consequences follow:
- The breach is complete when the position is taken up, not when a decision is made in it.
- It is no defence that the leader in fact decided the matter impartially.
- It is no defence that nobody complained or that no loss occurred.
Section 27(2) supplies the operative test for transactions and enterprises: would it “might be expected to give rise to doubt in the public mind” about whether the leader is complying with section 27(1)? The question is answered from the outside, by reference to how the arrangement looks to a reasonable member of the public.
Situations that commonly give rise to conflicts
- Contracts with governmental bodies. A leader with an interest — direct, or through a company, spouse, nominee or trustee — in a contract with a governmental body. Section 28(1)(b) singles these out for compulsory disclosure.
- Directorships. Holding, or having the power to nominate someone to, a directorship or similar office in a company that deals with the State or is regulated by the leader’s department or authority.
- Grants and funds. Allocating public funds — including electoral development funds — to a body in which the leader or an associate has an interest.
- Appointments. Participating in the appointment of a relative, business partner or nominee.
- Land and leases. Acquiring or dealing in State land, or a lease, in circumstances connected with the leader’s office.
- Regulatory decisions. Deciding a licence, permit or tender where an associate stands to benefit.
The conflict does not have to be yours
Section 27(3)(a) requires a leader to ensure, so far as within their lawful power, that their spouse and children, and any other person for whom they are responsible — morally, legally or by usage, including nominees, trustees and agents — do not conduct themselves in a way that might be expected to give rise to public doubt about the leader’s compliance.
Putting an interest in a relative’s name, or behind a nominee, does not remove it from the Code. It is precisely the arrangement the subsection was drafted to reach.
What a leader should actually do
- Identify it early. Before appointment, before a board paper, before a tender opens.
- Disclose it. To the body concerned, on the record, and in the annual return to the Ombudsman Commission.
- Withdraw from the decision. Not merely abstain from voting — leave the discussion, and have that recorded.
- Consider divestment. Section 28(1)(c) empowers the Commission to require a leader to dispose of assets or income, or place them under the control of the Public Trustee. Doing so voluntarily is often the cleanest course.
- If necessary, publicly disassociate. Section 27(3)(b) contemplates exactly that step for the activities of associates.
- Ask for a direction. Section 27(4) allows the Commission to give directions, generally or in a particular case. A leader who seeks and follows one is on far stronger ground than one who guesses.
Section 27(5)(b) makes failure to comply with a direction under section 27(4) misconduct in office in its own right — separately from whatever underlying conduct prompted the direction.
A conflict is not the same as corruption
Leadership Code proceedings are not judicial proceedings, though section 28(5) subjects them to the principles of natural justice. Section 28(5)(a) and (b) also provide that leadership proceedings are no bar to other proceedings, and other proceedings are no bar to leadership proceedings.
So a leader may face a leadership tribunal for a conflict of interest that involves no criminal offence at all — and may face both a tribunal and a prosecution arising out of the same facts, without either barring the other.
Sources
Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.