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Navigating the Complexities of Conflicts of Duties in NSW Public Sector

By April 11, 2024April 17th, 2024No Comments

Introduction

In January 2024, the NSW Independent Commission Against Corruption (ICAC) released a crucial document titled “Managing conflicts of duties in the NSW public sector”. This publication comes as a response to feedback received by the ICAC, indicating a widespread misunderstanding of the differences between Conflicts of Interest and Conflicts of Duties among public officials.

Understanding Conflicts of Duties

A conflict of duties occurs when a public official or agency has competing or incompatible public obligations, or when one public duty could be prioritised over another. This differs from conflicts of interest, which involve personal or private interests clashing with official duties.

Key Elements of Conflicts of Duties

  1. The official or agency owes a duty to the affected person or entity
  2. The official or agency has another duty
  3. There is a reasonable concern that one duty may influence the other
  4. There is a reasonable perception that an affected person or entity could be disadvantaged or improperly advantaged, or that the public interest could be harmed

Practical Guidance for Managing Conflicts of Duties

The ICAC document offers practical steps for addressing conflicts of duties:

  • Identify and assess risks
  • Refer to legislation, case law, and policies for guidance
  • Remove a duty if necessary
  • Enhance accountability through policies, procedures, training, and internal controls
  • Ensure transparency via public disclosure, independent review, and probity audits
  • Ensure fairness to all stakeholders
  • Ensure an appropriate organisational structure, either through separation of functions or closer coordination

Real-World Applications

Case studies in the document illustrate the importance of managing conflicts of duties:

  • A council breached the Environmental Planning and Assessment Act 1979 by allowing its unfinished civic centre to be used for public functions without proper certification, highlighting the inherent conflict as both developer and regulator (Case Study 1).
  • The Commissioner of Taxation must reconcile conflicting duties to collect the correct amount of tax while also promoting proper use and management of public resources (Case Study 3).
  • A public official’s dual roles as a contract manager and a member of an evaluation panel in a procurement process can create a conflict of duties, potentially leading to improper advantage for the supplier and undermining the integrity of the process (see the case study at the end of this article for more details).

Actionable Steps for NSW Public Sector Leaders

  1. Familiarise yourself with the ICAC document and share it with your teams
  2. Identify and document significant conflicts of duties, proportionate to the level of risk involved
  3. Develop policies and procedures for frequently encountered conflicts of duties
  4. Provide training to staff on integrity standards and managing conflicts of duties
  5. Implement internal controls, such as supervision, reporting, documentation, and segregation of responsibilities
  6. Ensure contractors and consultants declare and manage their conflicts of duties
  7. Enhance transparency through public disclosure, independent review, and probity audits
  8. Consider organisational structure changes, such as separating functions or increasing coordination, as appropriate

Legal and Ethical Frameworks in NSW

NSW public sector decisions are governed by various legal and ethical frameworks, including:

  • Public Governance, Performance and Accountability Act 2013 (Cth)
  • Independent Commission Against Corruption Act 1988
  • Relevant codes of conduct

Case Study: Conflict of Duties in Procurement

Consider the following scenario: A public official manages the contractual relationship between the government and an external supplier. That external supplier has responded to a Request for Tender (or other market approach) where the same public official is a member of the evaluation panel evaluating the responses.

This situation presents a conflict of duties for the public official. The official’s responsibility to maintain a good working relationship with the external supplier may consciously or unconsciously bias their assessment of the supplier’s tender response. This could lead to the supplier being favored in the evaluation process, potentially disadvantaging other bidders and undermining the integrity of the procurement process.

To manage this conflict of duties, the public official should disclose the conflict, consider removing themselves from one of the conflicting duties, and ensure that additional safeguards are implemented, such as increased supervision, documentation of the decision-making process, and independent review of the evaluation outcomes. By effectively managing this conflict of duties, the public official and their organisation can help maintain the integrity of the procurement process and public trust in government decision-making.

Conclusion

Managing conflicts of duties is essential for maintaining public trust and upholding the integrity of NSW public sector decisions. By understanding the key concepts, following practical guidance, and adhering to legal and ethical frameworks, senior government employees and local council officials can effectively navigate these complex situations. We encourage all NSW public sector leaders to assess their own organisations’ practices and engage in discussions to share experiences and best practices.

Share your thoughts and experiences in managing conflicts of duties in the comments below, and let’s work together to ensure the highest standards of public service in NSW.

Additional Resources

For more in-depth information, refer to: