15 March 2010

Accountability of Ministerial staff

The 15 March edition of The Age carries a letter to the editor by Andrew Farran, former senior lecturer in public law and, like me, a former Commonwealth public servant, on the issue of whether or not it is appropriate for Ministerial staff to be called before Parliamentary Committees.

Farran’s letter as published reads:

Parliamentary committees are proceeding down a dangerous path when seeking to investigate ministerial staffers. They are endangering the viability of the Westminster system of Ministerial responsibility.

When senate committees sought to involve themselves in departmental matters in the early 1970s, Canberra’s mandarins became very concerned. They were placated when assured that departmental witnesses would be required to answer factual questions only and not comment on policy.

The area that should remain sacrosanct is the ministerial office. The Westminster principle of ministerial responsibility to Parliament should prevail.

Decades ago I had responsibility for a federal ministerial office. Every day written and oral exchanges took place between myself and the minister, and with others, much of which was confidential and personal. The thought that I, and not the minister, could be brought before a parliamentary committee to account for these would have been incomprehensible.

If we lose sight of the long-standing conventions we risk undermining the system that has sustained our parliaments over centuries.

I am in complete agreement with Farran on this, subject to one important caveat: the Minister must accept in full the consequences of a convention which says, in effect, that the Minister and the Minister’s personal staff are a single political entity – the members of a Minister’s staff are an extension of the Minister’s political persona, and not players in their own right. If this principle is respected the Minister accepts full responsibility for his or her own actions and all actions of the staff.

A serious problem arises, however, when Ministers seek to depart from that principle, either claiming, as happened in the Children Overboard affair, that information had not been passed on, or excusing themselves on the basis that a staff member had acted without instruction from the Minister, or had misunderstood the Minister’s instructions.

I addressed this issue amongst others in a 2003 submission to a Senate Inquiry into Members of Parliament Staff (MOPS). The terms of reference of that inquiry, and the Committee’s Report, can be accessed from here, and the nineteen submissions received, plus supplementary information from the Department of Finance, can be accessed here.

On the question of whether members of Ministerial staff should be required to appear before Parliamentary Committees of Inquiry or other Parliamentary Committees, my position remains as I put it in my submission: 

I would suggest that a regime along the following lines is practicable and strikes a fair balance between the confidentiality of transactions within the Minister’s Office and the accountability of Ministers and public servants to the Parliament:

-  Where the activities of Ministerial staff are confined to the provision of advice to the Minister, the confidentiality of that advice should be sacrosanct to the extent that it is today.  Any action taken pursuant to this advice would taken by the Minister or on the Minister’s instructions.  The Minister can be held fully accountable for this.  Under these circumstances there would be no requirement for the accountability processes to penetrate the internal workings of the Minister’s office, nor would this be desirable.

-  Communications between Ministers’ staff and Ministers’ offices should enjoy similar levels of confidentiality under the same conditions.

-  Ministerial staff should be fully accountable for all actions undertaken by them outside the confines of the internal Ministerial advisory processes, for example, all transactions they conduct with the Department, with other agencies, with private companies and with the general public.

In respect of the latter point, it seems to me an intolerable situation that, as seems to be the case at the present time, members of Ministerial staff can give oral instructions to Departmental officials that purport to be instructions from the Minister, but being oral are susceptible to claims that the Minister was not aware of them, and yet the staff member concerned cannot be reached by due Public Service or Parliamentary processes. 

Similar concerns apply to the receipt of information or advice by Ministerial staff.  If information or advice is provided to Ministers’ offices by Departmental staff, only one of the following two approaches is tenable:

-  The information or advice having been received by the Minister’s Office, it is deemed to have been received by the Minister him/herself, there being no conceptual distinction to be drawn for this purpose between the Minister and the Minister’s staff, or

-  There being a conceptual difference between the Minister and the Minister’s staff, members of the Minister’s staff are liable to being tested as to what they did with the information or advice and when.

Addressing these issues is a matter of high importance.  They are the first line of defence for the Parliament and public in safeguarding our political system against the establishment of a political culture in which Ministers can operate in an environment of plausible deniability.

No comments: