Probity is the evidence of ethical behaviour, and can be defined as complete and confirmed integrity, uprightness and honesty in a particular process. When dealing with government resources officials need to ensure proper use and management of public resources.
Probity aims to identify the risks which can occur at any stage of a process and assist with mitigating or alleviating any negative effects on that project or process.
Embedding probity at each stage of a process, by putting principles into practice, can minimise risk of a procurement process being questioned or even being cancelled and forced to be completed a second time.
When to engage a probity advisor?
A Probity Advisor’s role is to identify the risks which can occur at any stage of the process and assist with mitigating or alleviating any negative effects on the project or process. All procurements should have a nominated advisor expertly navigating through probity throughout the process.
Are you aware of how probity can play a role in your department’s success?
Probity is an important concept underpinning procurement and governance across all levels of government. Important to government officials when fulfilling their duties when conducting any procurement process. Governments at all levels operate within legislative and policy frameworks underpinned by probity considerations.
What do we mean when we talk about probity?
Probity is a principles-based concept: it is the evidence of ethical behaviour, and can be defined as complete and confirmed integrity, uprightness and honesty in a particular process. Probity can be summarised as including 3 key principles:
- to act ethically;
- to act fairly and equitability; and
- to act with transparency and accountability.
Government officials conducting a procurement or grants process have probity obligations they must adhere to, to ensure their decision-making throughout the entire process is defensible. Government officials must understand their obligations and fulfil their duties in order to minimise risk which can occur at any stage of a process. Probity risks include:
- Inequitable treatment of tenderers or grant applicants
- Failure to appropriately address and manage conflicts of interest
- Reputational damage and adverse publicity
- Failure to appropriately deal with legal requirements
- Security breaches
- Disputes or Litigation
- External review e.g. Ombudsman complaint
What are the sources of probity obligations?
At the federal level, the obligations of government officials are enshrined in a legislative and policy framework comprising the Public Governance, Performance and Accountability Act 2013, the Commonwealth Procurement Rules (CPRs), the Commonwealth Grant Rules and Guidelines and the Public Service Act 1999. There is also the Government Procurement (Judicial Review) Act 2018 which establishes a regime where the conduct of Commonwealth agencies in procurement processes may be challenged in the Federal Court of Australia and the Federal Circuit Court, based on failures to comply with the CPRs, or proposed conduct that would breach the CPRs.
Obligations at the state and territory levels are jurisdiction specific. In the Australian Capital Territory, probity obligations are embedded within the Government Procurement Act 2001 (ACT), Government Procurement Regulation 2007 (ACT), and Government Procurement (Charter of Procurement Values) Direction 2020 (ACT).
Public officials with delegations under legislation have ultimate responsibility to exercise their own judgement. Perception is important in discharging these duties and requirements. If you are involved in a procurement process, you are expected to understand your obligations in relation to each of these sources.
How can Griffin Legal help?
If your government department is considering an approach to market, probity is important, and Griffin Legal can help.
Griffin Legal is regularly engaged as a trusted probity advisor to Commonwealth and Territory government. We can work with you and provide tailored services that support your agency’s needs. We have extensive experience advising on complex probity matters providing probity advice that reflects the unique circumstances of our clients.