The Code requires that a senior executive (including an acting senior executive) must make a written declaration of private financial, business, personal or other interests or relationships that have the potential to influence, or could reasonably be perceived to influence, the senior executive’s duties, including decisions made, or advice given by the senior executive.

This Circular provides supplementary information to assist Department Secretaries, government sector agency heads and senior executives with this requirement. This Circular should be read in conjunction with the Code.

What are private interests?

Private interests are those interests that can bring financial or other material benefits or result in disadvantages to public officials as individuals, or to other people connected with the public official. Private interests are not limited to pecuniary interests or to interests that can bring direct personal gain or help avoid personal loss. They also include many social and professional activities and interests.

They can involve the interests of the public official, members of the official’s immediate family or relatives (where these interests are known), business partners or associates, or friends. Enmity as well as friendship can also give rise to a conflict of interest.

Private interests may make it difficult for a public official to perform their duties impartially in the public interest, and can result in a conflict of interest. A conflict of interest exists when a reasonable person might perceive that a public official’s private interests could be favoured over their public duties.

A conflict may arise from a range of factors, including:

• personal relationships

• secondary employment

• membership of special interest groups

• ownership of, or financial interest, in property, shares or companies.

Conflicts of interest may also arise due to a public official’s personal beliefs or attitudes that could influence, or be perceived to influence, their impartiality or decision-making.

The Code requires conflicts of interest to be declared and managed in a way that resolves the conflicts of interest in the public interest.

RESPONSIBILITIES OF GOVERNMENT SECTOR AGENCY HEADS

Under the Code, government sector agency heads are responsible for ensuring that procedures are in place to require that:

• senior executives complete declarations

• handling and storage of declarations comply with the requirements of the Privacy and Personal Information Protection Act 1998

• declared conflicts are managed and monitored.

Under the Government Sector Employment Act 2013 (GSE Act), Secretaries and heads of Public Service agencies (other than Departments) are responsible for the general conduct and management of the functions and activities of their agency. This is required to occur in accordance with the government sector core values as defined at Part 2 of the GSE Act. These obligations extend to ensuring the Department or agency has an effective conflicts of interest management framework.

Secretaries and all other government sector agency heads should ensure that:

• their senior executives (including acting senior executives) are aware of their responsibility to declare private interests and relationships, and of the arrangements applicable in the Department or agency, including any mandatory interests or relationships that they must declare

• declaration arrangements are established which are consistent with the Code

• they are appropriately aware of the contents of the completed declarations and any conflict of interest identified is avoided or effectively managed consistent with the Code and any relevant Department or agency policies and procedures

• information and advice is available to assist senior executives to complete their declarations which may include advice on:

  • which interests and relationships should be declared

  • what to do if a conflict of interest arises

  • the nominated person(s) that senior executives may consult in their organisation regarding their declarations and the management of conflicts of interest

• the organisation has effective systems and processes for the management of declarations which:

  • readily identify conflicts of interest and failures to complete or update the declarations as required

  • properly maintain confidentiality

  • facilitate access by the senior executive concerned to maintain and provide fresh declarations

• Departments and agencies comply with applicable legislative requirements such as the Privacy and Personal Information Protection Act 1998, Health Records and Information Privacy Act 2002 and the Government Information (Public Access) Act 2009. Further advice on these Acts is available from the Information and Privacy Commission http://www.ipc.nsw.gov.au/

A template form for making a private interests declaration is available on the Public Service Commission’s website. The form may be used ‘as is’, or augmented by a department or agency to reflect its operating environment and business risks.

RESPONSIBILITIES OF SENIOR EXECUTIVES

Senior executives must demonstrate high levels of personal conduct consistent with the core values of integrity, trust, service and accountability. Relevantly, the Ethical Framework for the government sector includes the following principles:

• act professionally with honesty, consistency and impartiality

• place the public interest over personal interest

• uphold the law, institutions of government and democratic principles

• provide services fairly with a focus on customer needs

• provide transparency to enable public scrutiny.

Generally, the interests to be declared by a senior executive will vary from individual to individual and there is no standard or ‘one size fits all’ list of items to be included in a declaration. Rather, a senior executive should consider their role and responsibilities in their organisation and the functions and responsibilities of that organisation, and identify and declare the private interests or relationships which have the potential to influence, or could reasonably be perceived to influence, their decisions or advice.

A senior executive should always immediately disclose a conflict of interest to a more senior, or designated, official in their Department or agency, as well as ensure that their declaration of private interests is up to date (for example, following any relevant change in the senior executive’s private interests, following assignment to a new role or responsibility, or at least annually).

Failure to complete the declaration appropriately may constitute a breach of the Code and may amount to misconduct.

Suggested process for a senior executive to complete a declaration

1. Identify all your private interests and relationships

2. Consider all your private interests and relationships in relation to the functions and responsibilities of your agency and to your role and responsibilities in the organisation

3. Identify which of your private interests or relationships have the potential to influence, or could reasonably be perceived to influence, your decisions or advice. This may require the listing of the names and activities of family and other personal relationships that may represent a conflict of interest

4. Identify any mandatory private interests or relationships required to be declared by your organisation

5. Seek advice from a senior executive, or nominated official, of your organisation if you are uncertain whether to declare a private interest or relationship

6. Declare all your private interests and relationships identified in steps 3 to 5 in writing on your organisation’s declaration form

7. Submit the completed declaration form to the designated official

   • as soon as practicable, following any relevant change in your private interests or relationships

   • as soon as practicable, following your assignment to a new role or responsibility

   • at least annually.

An acting senior executive is not required to make a fresh declaration on each ‘acting’ occasion and may rely on their most recent declaration, provided:

• that declaration is brought to the attention of their current manager

• there are no additional undeclared private financial, business, personal or other interests or relationships that have the potential to influence, or could reasonably be perceived to influence, decisions made, or advice given by the senior executive whilst they are acting.

Additional information

This Circular applies to NSW Government sector agencies and their senior executives. It includes information about the Code which is mandated for government sector employees by section 8A of the Government Sector Employment Act 2013.

Note: “NSW Government sector agency” for the purposes of section 8A of the Government Sector Employment Act 2013  means a Public Service agency (Department, Executive Agency related to Department, Separate Public Service Agency), the Teaching Service, NSW Police Force, NSW Health Service, Transport Service of New South Wales, any other service of the Crown (including the service of any NSW government agency), and the service of any other person or body constituted by or under an Act or exercising public functions being a person or body that is prescribed by the regulations.

Further information is available from the Public Service Commission’s website www.psc.nsw.gov.au.

Kathrina Lo
Public Service Commissioner