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February 2006
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Daily Media Quotation

What Ministers Don't Know Can Hurt Them

February 13, 2006

by Patrick Weller - The Australian

'How is it that we have in theory a system of responsible government, though no one is prepared to accept responsibility when things go wrong?"

Sound familiar? No, it's not a comment on the Immigration Department or the AWB, although, of course, it could be. It is a complaint from a report on a Canadian government scandal by Justice John Gomery which was released last week. The Liberal government led by Paul Martin has already paid the price, losing to its Conservative opponents last month, in part because it seemed scandal-ridden without ever being prepared to take responsibility.

In trying to devise means to stop a repetition of its out-of-control programs, Gomery argued that the Canadian public service has by weight of convention an independent constitutional standing that requires it to stand up against a government being excessively partisan or improper, even if not illegal. The Canadian government argued that its public service had no independent status or power apart from that which was delegated to it.

So who should be responsible here, where the buck never seems to stop but keeps moving on?

Ministerial responsibility means far more than a belief that ministers resign if their public servants mess up. They never have and never will. They resign only if their fingerprints are all over the crisis and the prime minister thinks it politically less damaging that they go rather than tough it out.

Ministerial responsibility also means that ministers answer to parliament, explain what has happened and seek to ensure errors are not repeated. Ministers explain; by tradition public servants remain anonymous.

The deal was that ministers received all of the credit but acted as a parliamentary shield. Ministers still want the credit; but for decades they have been keen to distance themselves from responsibility.

The Guide on Key Elements of Ministerial Responsibility, Prime Minister John Howard's official rules of engagement for ministers, states that even though ministers are responsible: "This does not mean that ministers bear individual liability for all actions of their departments. Where they neither knew nor should have known about matters of departmental administration which come under scrutiny, it is not unreasonable to expect that the secretary or some other senior officer will take the responsibility."

So public servants should put their hand up and admit error. It's been that way in practice for some time, particularly in terms of administration. Fair enough, but ministers never really were on that hook. Yet public servants still cannot be responsible to parliament. If we want to make them truly responsible for actions in those grey areas where politics and administration overlap, then they have to have greater capacity to exercise independent authority, to have a constitutional separation of some kind.

Secretaries of departments have already become less anonymous and permanent. They are on three to five-year contracts and can be terminated at the decision of the prime minister. They appear before parliamentary committees where they must keep their cool in the face of occasionally aggressive cross-examination and, sometimes, grossly unfair assertions.

When the Government did not control the Senate, they had to answer to committees on issues such as the children-overboard affair, giving details of what was done, all in the glare of public attention.

Thirty years ago, in July 1975, when treasury officials were called before the Senate to answer questions on the loans affair, they gave their names and positions and stated they had been instructed to answer no further questions. They would not get away with that now. But they are still required to avoid questions about the reasons for the selection of government policy. That is for ministers.

Should they then be granted some further independence to comment on whatever is in the public eye? Should we await public statements on a regular basis of what departments think about policy issues under scrutiny?

It is not unusual for departments to release documents containing factual information. They can provide submissions to inquiries. The treasury provides additional papers with the budget to provide background detail. The information is given weight because the officials are regarded as professional and non-partisan.

But in a political crisis where policy is in question, it would be unfortunate if there is seen to be a gap between department and minister, with both making separate releases. Yet, sometimes it seems a gap is growing.

The Department of Foreign Affairs and Trade puts out a statement to announce it knew nothing of kickbacks paid by the AWB and the minister says he relies on that as evidence. Surely they would have told him weeks ago, had he asked.

The department works for him in a daily and intense relationship. A minister should not need to read press releases to discover what his department knew. Asking a department to make a public statement, or hinting that it would be useful, is an odd way of providing evidence to the public.

Such a process has credibility only if there is a prospect of the department providing a release that contradicts the minister. No one for a moment expects that to happen. Even the slightest hint of a discrepancy between official and minister has in the past led to a "clarification" of what the official really meant.

If departments do start to make statements about what they do or do not know, then they must have the ability to make up their own minds. That gives them the degree of constitutional independence that Gomery might like, but which all our governments (probably properly) would reject out of hand.

Ministers are appointed to administer departments of state. Secretaries manage the department under the minister. Since ministers cannot do everything, extensive discretion is delegated. Public servants can be professional and non-partisan while fulfilling those expectations. But the more that ministers, when it suits them, arrogate some notion of a public separateness and independence to the departments as though the ministers are not even nominally responsible for their actions, and the more that they appear to correspond with one another by press release, the greater the gap between the two will grow.

We need a close relationship between minister and department, not only to maintain constitutional responsibility but also to provide good government. The public service is usually willing to assist. Only ministers can make it happen.


Patrick Weller, author of Don't Tell the Prime Minister (Scribe, 2002), holds the premier's chair in governance and public management at Griffith University in Brisbane.


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