Webdiary - Founded and Inspired by Margo Kingston

Dr Reynolds' A rebirth of accountability, independence, and transparency? got me to thinking about the true nature of the Westminster System in the 21^st Century. What, in the modern world, is the accountability of Ministers, should be the accountability of Ministers and where are the origins of that accountability?

It has proved to be a more difficult task than I first thought. It involves abstruse theories of Government going back at least to the origins of modern elective Government in the 17^th Century. A good general guide to the origins of parliamentary democracy at Westminster is Ronald Butt’s A history of Parliament: The Middle Ages (1989 Constable London) but that is only Volume I and only goes up to 1485. We have been waiting for 28 years for Volume II. Butt was working on it when he died in 1992 – fertile ground for some enterprising PhD student I should have thought. Then, of course one moves to Locke’s Two Treatises of Government and a plethora of stuff around the French Revolution. Modern Parliamentary democracy and a more rigid Party system, however, really only formulated with the great battles of Disraeli and Gladstone. I think Gladstone knew what accountability was but Disraeli was one of the most accomplished liars of all time – he would put Richo in the shade.

So, I tuned my mind back to that mainstay of Government I, LF Crisp’s Australian National Government (1965 Longmans Victoria, reprinted with corrections 1968). It was first published as The Parliamentary Government of the Commonwealth of Australia in 1949. If anyone was an observer of developments in Ministerial Responsibility in Australia, it would be Crisp. Not a jot of it – doesn’t even mention it. The closest he gets is a discussion about the interaction between Ministers and their advisers (and I think this is what Dr Reynolds is coming close to).

In Chapter Thirteen (p398) he quotes AF Davies “Being a good bureaucrat is, we feel, a bit like being a good forger.” And then goes on to say (p 421)

Though some Ministers command more than a smattering of the subject-matter of the departments to which they are appointed, they are rarely in any sense experts in it. It has commonly been held to be better so, for a narrow professional competence (or, worse, imagined competence) in the field of his department has on occasion given a Minister an over-confidence and an image of smug omniscience fatal to his relations with his departmental advisers and to his success in Parliament and in the general electorate. By contrast, the senior public servants are seen as ordinarily supplying the elements of continuity, expertise and experience in the departmental fields, together with a politically detached and non-partisan foresight grounded in their almost career-long administrative or professional conduct with many of the facts from which, and many of the circumstances in which, Ministers in a hurry and under pressure must make the final judgments that determine policy.

Ah, they don’t write them like that any more. And little wonder. Having lived through it, I think the destruction of that relationship stemmed from the ALP having been out of power for so long before 1972. While Nugget Coombs was seen as close to the Government of his day and incredibly powerful, his advice was independent and he helped build a better country. By the time the cowboys in the Whitlam Government acceded narrowly to power they had a deep mistrust of the independence of the Public Service. Part of that I think stemmed from not liking to be told that there could be negative consequences to their reforms and interpreting that as a conservative rearguard action to frustrate them. Although I did not know many Permanent Heads personally, I knew people who did and I would be surprised if the intention was to frustrate rather than just giving an impression. After all, the likes of Rex Connor didn’t take kindly to being told it might be unwise to do something he had had his heart set on for decades. Interestingly enough, it took the Howard Government to do it for him, albeit through private rather than public enterprise.

Fraser’s mob reacted just as badly the other way while the destruction of the independence of the Public Service proceeded apace in NSW under Wran and reached its apogee under Greiner AND THINGS HAVE CONTINUED APACE UNDER Carr and Dilemma. By the time the Hawke Ministry took office, there was but lip service to independence in most portfolios with some notable exceptions like Foreign Affairs and Trade. Since, it has been all downhill: no tenure – contracts; no Public Service Exam, no career path, no stability. Privatisation and advertising job by job on fixed term contracts. That is no way to run a Public Service and certainly no way to ensure continuity and stability in times of change. One really wonders what is actually going on at the moment given that all policy is now run out of Ministers’ Offices by Staffers.

My most intimate experience is with NSW. I have come into contact with a number of different models over the years but I can confidently say that the NSW Government is run out of Sussex Street for policy and out of the Press Secretaries’ offices for day to day administration. Where does that leave Ministerial responsibility? It’s dead easy to sack a Press Secretary although you won’t see the Premier’s going except of his own accord. One of the most worrying things about the Rudd campaign is that he had Walt Seccord, Carr’s veteran Press Secretary on staff for some time before and throughout the campaign.

In considering questions of Ministerial Responsibility and Conduct, it is worth remembering that the plaque on President Truman’s desk “The Buck Stops Here” has an entirely different meaning in NSW and Qld given their background of entrenched corruption extending back to the Rum Corps.

Taking the two concepts one at a time, let me first deal with what I can find as the most recent pronouncements on Ministerial Responsibility. Anne Twomey in her hallmark The Constitution of New South Wales (2004 The Federation Press, Sydney) has this to say (pp693-4)

Individual Ministerial Responsibility

A Minister is individually responsible to the Parliament for the administration of his or her department or agencies.[490] This means that a Minister can be questioned in the parliament upon this subject and can be required by the House of which the Minister is a Member to account for his or her actions or failure to act. Traditionally, ministerial responsibility requires the resignation of the Minister for major errors or failures committed within government departments or agencies for which the Minister is responsible, regardless of whether the Minister had any personal knowledge or involvement in such failings. LJ Rose observed:

The individual responsibility of a Minister makes him, and him alone, answerable for all acts or failures to act, of the department over which he presides, even though he may or may not personally be to blame. He cannot shed his responsibility on to a public servant. Only by acceptance of this individual responsibility can effective public control of government be maintained in a democracy.[491]

[Tell that to Madame Butterfly, Reba Meagher, the NSW Minister responsible for Health or Kevin Greene responsible for DOCS – the kiddie neglecters]. It has become far less common in recent years for Ministers to uphold this tradition. Indeed, in many cases Ministers now actively seek to transfer any responsibility for mistakes to public servants and attempt to shield themselves from responsibilities by claiming not to have been informed. This, of course, does not absolve the Minister of responsibility for the actions of his or her departments or agencies. Such an attempt to shift responsibility is not only contrary to tradition but undermines the system of responsible government imposed by the Constitution Act. It is the elected Minister who is responsible to the Parliament, not the unelected public servants. Attempts to shift or avoid responsibility could be described as “unconstitutional” in the broader sense of the term. However, the courts cannot enforce the principle of responsible government. It is up to the parliament and the electors to do so.

While this comes from the website for the Commonwealth House of Representatives:

Individual ministerial responsibility

During this century there has been a change in the perceptions of both Ministers and informed commentators as to what is required by the convention of individual ministerial responsibility. The real practical limitations on strict adherence to the convention as it was traditionally conceived are now openly acknowledged.

The 1976 report of the Royal Commission on Australian Government Administration stated:

It is through ministers that the whole of the administration—departments, statutory bodies and agencies of one kind and another—is responsible to the Parliament and thus, ultimately, to the people. Ministerial responsibility to the Parliament is a matter of constitutional convention rather than law. It is not tied to any authoritative text, or amenable to judicial interpretation or resolution. Because of its conventional character, the principles and values on which it rests may undergo change, and their very status as conventions be placed in doubt. In recent times the vitality of some of the traditional conceptions of ministerial responsibility has been called into question, and there is little evidence that a minister’s responsibility is now seen as requiring him to bear the blame for all the faults and shortcomings of his public service subordinates, regardless of his own involvement, or to tender his resignation in every case where fault is found. The evidence tends to suggest rather that while ministers continue to be held accountable to Parliament in the sense of being obliged to answer to it when Parliament so demands, and to indicate corrective action if that is called for, they themselves are not held culpable—and in consequence bound to resign or suffer dismissal—unless the action which stands condemned was theirs, or taken on their direction, or was action with which they ought obviously to have been concerned.²⁸

As the Royal Commission and other authorities have noted, there are still circumstances in which a Minister is expected to accept personal responsibility and to resign (or be dismissed):

Resignation is still a valid sanction where ministers have been indiscreet or arbitrary in exercising power. In cases where the minister has misled parliament, condoned or authorized a blatantly unreasonable use of executive power, or more vaguely, where the minister’s behaviour contravenes established standards of morality, resignation or dismissal is the appropriate action. In these cases, the factors which may often excuse the minister from blame for administrative blunders do not operate to the same degree: the minister’s personal responsibility may be more easily isolated.²⁹

The responsibility of ministers individually to parliament is not mere fiction. An individual can be disciplined whereas the whole cannot. The events of recent years show that a minister can become too great a burden to carry. The parliament’s role has been to expose and demean. Forced ministerial resignations and dismissals have been the decision of the prime minister not the parliament by its vote. The chief of the executive has judged that the public would accept no less. The credibility of a number of other ministers has been rightly challenged in parliament. Whether the challenges were merited or not the right of parliamentary inquiry cannot be denied. For a government to deny the right may prove to be suicidal. Parliament is the correct forum, the only forum, to test or expose ministerial administrative competence or fitness to hold office. However, allegations of a different kind, that is, offences against the law, should not be tried by parliament. The proper forum for those allegations is the courts. In cases of moral misconduct by a minister, the sanction should be political, in the form of resignation or defeat.

I continue to believe that in the matter of ministerial responsibility, in the strict sense of actions done in his name for him or on his behalf in his role as a minister, his responsibility is to answer and explain to parliament for errors or misdeeds but there is no convention which would make him absolutely responsible so that he must answer for, that is, to be liable to censure for all actions done under his administration.

. . . If the compelling penalty for a ‘mistake’ is resignation then the compelling prerequisite for punishment is the establishment of proof. This is not easily done in the political arena. The gravity of the ‘mistake’ would be an essential factor to any requirement of resignation. Equally the premise is only as sound as ‘personal fault’ or ‘lack of reasonable diligence’ can be established. Penalty by compulsion is dependent on the establishment of guilt. For the purposes of political advantage, allegations of ministerial ‘mistakes’ of a baseless or minor nature are no less possible than ministerial or government defence in the interests of self-preservation. Executives and ministers will always find it hard to permanently cover-up allegations of serious maladministration or misconduct.³⁰

In a practical sense, a Minister may resign, not as an admission of culpability, but rather to remove pressure from the Government while serious criticisms of his or her capacity or integrity are properly and dispassionately assessed. Alternatively, a Minister may be given leave from ministerial duties for the same purpose (see p. 67).

When responsibility for a serious matter can be clearly attached to a particular Minister personally, it is of fundamental importance to the effective operation of responsible government that he or she adhere to the convention of individual responsibility. However, the prime consideration in determining whether a Minister should resign or be dismissed has sometimes been the assessment of the likely political repercussions on the Government.³¹

Excluding the most serious cases and those where a Minister is clearly culpable the records have shown that a Government can rely on party discipline to ensure that a Minister’s resignation is not forced by a direct vote of the House. Indeed there has been no occasion of an adverse resolution of the House in the nature of a no confidence or censure motion in an individual Minister (excluding the unusual events on 11 November 1975) on which resignation or dismissal would be expected. Some ministerial resignations, however, have been forced by pressure applied through questioning and criticism in the House. The effects of this pressure on public opinion have been such that the Minister concerned or the Prime Minister has been forced to take action.

The Senate has on several occasions passed motions of censure of Ministers (both Senate and House Ministers).³² In none of these cases did the Minister concerned feel compelled to resign as a result. These instances would seem to reinforce the principle inherent in the system of responsible government that Ministers collectively and individually (unless they are Senators) are responsible to the lower House.