Ministerial Staff's Work In Need Of Scrutiny

by Jack Waterford - Canberra Times

Those looking for precedents from the Cole inquiry into the oil-for-food rorts may end up concluding that the significant one was not the appearance of the Prime Minister and two ministers before the commission, but of chief of staff to Alexander Downer, Innes Wilcox.

Ministers have given evidence to royal commissions and similar inquiries before, and so have senior public servants. But it is uncommon indeed - particularly in the modern era when the role of the ministerial office has become a significant, but hardly transparent, part of government administration - for minders to give evidence. Hitherto, indeed, such appearances have been strongly resisted.

Minders, after all, are in a position to shed light on what a minister really knows, and what he, or she, really thought at the time. They know who has been bending the ministerial ear between the formal submission coming up for the department and the final formal decision communicated back. They know about the frankly political and, sometimes, the frankly unworthy considerations injected into the decision-making process. And they know - or ought to know - about the wheeling and dealing going on between ministers, and their minders before important decisions are made.

Throw light on those processes and the minister might be terribly exposed, if generally only to the sort of criticism that a politician responsible for the stewardship of great matters of state should have to face. Politicians, of course, do not always see it that way.

Mr Wilcox gave his evidence before Mr Cole on Monday. It was within a very tight compass, and he did nothing to embarrass or compromise his minister; indeed it might be said that he put some context into the life of a busy and energetic one.

He detailed the way in which diplomatic cables came, on a secure computer system, into the minister's office, at the rate of about 250 a day. The department would have already prepared a six-line summary of most of them. He told of how most were read by at least one of the six advisers in his office, according to their responsibilities over particular geographic areas - such as the Middle East - or areas of high political topicality at the time. These would mark from the list ones they thought the minister should read - perhaps 25 or 30 - and print them out for the minister. He also detailed what happened when the minister was away from his office or on leave.

Mr Wilcox also gave evidence about his recollections of a meeting at which he was present. Evidence about what was said differs; Mr Wilcox, who was drawing from memory and another's note, rather than his own contemporary record, favoured the version in which the AWB chairman disclosed least of what was going on.

He was not asked about what he himself knew, or what he told the minister, or what he advised the minister to do. He gave some general evidence of the considerations which would have made a cable significant, but was not examined in any detail about particular cables. In this sense, he was essentially a technical and helpful witness, in no wise personally under the gun.

For the record, though I can hardly ever bring myself to say anything much nice about Alexander Downer (who returns the compliment), the office seemed professionally enough managed. There is a live issue about what Mr Downer knew and what, if anything, he did and, always, a general issue about his judgment. But that he, and other ministers in his position, are faced with a mountain of paper every day - and that they try, generally, to keep on top of it - I do not doubt.

But if the evidence of Innes Wilcox was essentially uncontroversial, the fact that he was being floated forward was very interesting. The Prime Minister, John Howard, himself expected to appear at the inquiry tomorrow, has made much of his own willingness, and the willingness of any of his ministers, to appear if they can be of help to Terence Cole in his fact-finding. In major part because he is fending off demands to widen the inquiry into an explicit examination of what politicians knew, he has been expansive in suggesting that there are no holds barred.

But what if counsel assisting, John Agius, SC, asked if Mr Howard's own advisers could give evidence - and not only about the state of their own knowledge, or about what came into the Prime Minister's office, but about what was actually given to, or discussed with, the Prime Minister?

On form, one might expect to see Mr Cole resisting any such call, and not on the basis that he is a pawn or toady of the Prime Minister but because Mr Cole has made it clear that he regards ministerial knowledge as at the far edges of his terms of reference. Mr Cole does not think that it is for him to ask for wider terms.

"The reason why this inquiry is considering the knowledge of the Commonwealth, and thus its ministers and officials, is because of its possible relevance as a defence, should the ingredients of a knowledge-based defence be established against AWB Ltd or any of its officials," he said on Monday. In other words, the only real relevance, to him, of evidence of what Government knew or did was whether it would allow AWB officials to claim they had a nod and a wink from Government for their corrupt practices, which were probably criminal offences against Australian laws.

A cynic might think that were there (perish the thought) any practice of giving improper nods and winks, it would be far more likely to come through the heads, eyes or hands of minders rather than ministers, who, usually, know the value of deniability.

Not Mr Wilcox, of course. But it is Mr Wilcox's trailblazing work in entering the lion's den which may come back to haunt a minister, perhaps even, at a later day, a minister such as Kevin Rudd who is at the moment (safely in opposition) so keen for everything to come out.

One can imagine circumstances in which the evidence of a person in his position would be quite critical - indeed, capable of being very damaging to government.

An example might be communications between the Department of Prime Minister and Cabinet and the Prime Minister's private office during the children-overboard affair. Or indeed about communications between the Prime Minister's advisers and the office of Peter Reith, then minister for defence, and, given its unexpected helpfulness with false information at a critical moment of an election campaign, the Office of National Assessments.

During that crisis, Mr Howard steadfastly insisted that he did not know that he, and other ministers, had misled the Australian public. There was certainly evidence that his office knew. There were even some indications, but no documentary evidence, that Mr Howard himself knew. But the matter could not be resolved because Mr Howard refused to allow any of his minders to give their accounts of what happened.

Labor did not mind that much, for two reasons. They were getting almost as much mileage from the inference that Mr Howard was lying as from the certain knowledge he was doing so. And the more able members knew that any precedent of getting staffers to appear might one day reverberate on them - in somewhat the same manner, according to Labor lore, as the Senate committee system, in major part founded by Lionel Murphy, ended up playing a role in destroying him.

This, generally, produces a charade, of the Senate insisting on its rights and pretending to be willing to take the matter to the brink. At the last moment, however, the Senate does not press the point. It cannot happen now anyway, at least as long as the Government can discipline its new-found Senate majority.

The children-overboard affair is not the only occasion on which Mr Howard has refused to permit minders to be asked questions - even at some cost of being seen to be less than frank, perhaps even lying. Even with the Cole inquiry, John Howard is insisting that his Government's response is the most transparent of any nation in the world, but opinion polls show that the public thinks that Mr Howard, and his ministers, are lying about their knowledge of what is going on.

The Cole inquiry has, of course, produced an enormous pile of official documentation, recording not only an incredible inflow of information, from diplomatic posts and intelligence sources, but the material, including email and ministerials, generated by departmental officers dealing with the general issues involved: Iraq, sanctions, Australian trade, wheat and so on.

While there are live questions about how competently officers dealt with issues raised, there is no suggestion that there is not a record trail.

One cannot be so sure that there is as systematic a record trail in the modern ministerial office. Indeed a number of senior officials, among them Max Moore-Wilton and Andrew Podger, have questioned whether the typical private ministerial office meets legal and professional standards of record-making and record-keeping.

Yet there has been a major shift of power from the bureaucracy to the ministerial office over recent decades. It may have partly insulated the public service from politicisation pressures - given that staffers can be as political as they like. But it does not produce more transparent administration, and certainly not more accountable administration, as evidenced by the way in which ministers, from the Prime Minister down, have refused to accept responsibility for what these staff do in their name.


Jack Waterford is editor-at-large of The Canberra Times.