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This page created September 2001 by Michael Wynne
The concept of probity:- The concept of probity is a critical one. It is broad and cannot be defined within economic and managerial frameworks. You cannot specify it in terms of finance or management or even quality. It must be evaluated within a context of values and norms and it is relative. Any attempt to define it in watertight legal frameworks fails. What it is varies with where you are, what you are doing, what you plan to do and who is making the decision. That it does not fit neatly into modern legislator's patterns of thought does not reduce its importance. It serves to mediate service to the community against the self-interest of individuals.
In legal terms the criterion is whether a reasonable person would consider the conduct of the applicant to be acceptable. Can this person be trusted to serve the community rather than him or herself when their is a conflict of interest - in old fashioned terms is he or she a person of good standing. Probity becomes a critical issue when you are dealing with situations where people for one reason or another are unable to protect themselves from misuse. This is why it is so important in dealing with the sick and aged. It balances the rights of the community to be protected against the rights of the individual and the market.
A probity requirement protects the community and puts the interests and rights of all individuals and the group above those of a particular individual. No one has a right to provide aged and health care services. It is a privilege to serve the community and your fellow humans in this way. To enjoy that privilege your conduct and trustworthiness must be considered by the community to be acceptable.
Probity protects the community because that community is the measure of a reasonable person and of probity.
Example:- In the global marketplace community at the WTO a company which gets into bed with the government of a developing country and misuses citizens in order to make profits from local resources may be greatly admired and enjoy great standing. Those practices may be legitimate - even desirable.In a country like Australia that conduct would be abhorrent and our community of citizens would not consider them to be people of good standing in the sense implied by probity. Australians would not trust them. They would not expect our regulators to give this company hospital or nursing home licenses. Any individuals who had been part of these practices would not qualify, nor would any group which employed them in positions of influence.
Probity protects the interests and rights of local communities against the forces of the market and of marketplace globalisation. It is not that globalisation is of itself bad or undesirable. It is simply that it must serve the community and that community is the community where the global entity is providing a service. It balances the interest of the community against the rights of outsiders which is not to suggest that outsiders do not have rights as global individuals.
The market is and must be a serving part of the community whether this be a global community or a local community. When probity is a critical consideration then the local community has the right to decide who will serve their needs. When the community becomes a part of the market, whether local or global then the market dictates who will provide services and how they will be provided.
As we have seen in health and aged care corporations quite openly provide care in their own interests rather than those of the community. They are there for their own purposes, not for the community. Probity regulations place community above market and constrain the market forcing it to be a contributing sector of society. Probity challenges uncontrolled marketplace globalisation and will be the first target of the global economists. In typical jargon these economists call this "liberalisation".
In a civil society those who lack the ability to protect themselves have the right to be protected from those whose conduct or disposition suggests they might misuse the trust placed in them. When an area of activity is regulated by a probity clause then protection is the prime legal consideration. In the marketplace in contrast everyone has a right to trade and the rights of the individual to trade are the prime legal consideration. Probity is simply another way of arguing that the pure unrestricted competitive marketplace is an unsuitable place for providing humanitarian services. The consequences of doing so are far reaching and socially unacceptable.