The Code Of The Unaccountable

by Jack Waterford - Canberra Times

One of these days a minister, perhaps the Prime Minister himself, is going to get into serious political and legal trouble because of the black hole that exists between himself, and his department.

The black hole is the ministerial office, whose record-keeping is often appalling, and the risk is that a ministerial staffer or minder will do something, or not do something, in a way that actually works to the minister's disadvantage.

We all know that the black hole can be very helpful in promoting the minister's advantage. A minder can fail to inform the minister of an embarrassing or inconvenient truth, take personal responsibility for decisions which might otherwise have seemed to have been directly authorised by the minister, make a deal, the details of which the minister is deliberately not told other than that "it's all fixed up". Sometimes minders have fallen on their swords, accepting responsibility for actions that might otherwise have got the minister into trouble.

Such examples create an [impression] that the curtain over the minister's office, and the deniability it produces, is generally useful for the minister.

But a time will come when a minister will have to prove that he knew, not that he was ignorant or that it cannot be proven that he was told. A time when a court, or an administrative or political inquiry will be focused on establishing what was actually in the ministerial mind, and where the absence of objective evidence will actually be damaging perhaps fatal.

A time, moreover, when the professional administration required to engage in good management practices, to obey the law, and to obey the public service code of conduct will revolt against the often deliberately vague practices of the ministerial office, and ambiguous questions of ministerial knowledge or consent.

The revolt need not be open. It may simply be from its own proper record keeping, the more stringent and comprehensive given its knowledge of the slack practices in the ministerial office.

A example might be a Department of Foreign Affairs and Trade minute in the Cole inquiry, recording a 1996 discussion by a departmental official with an adviser in the office of the Minister for Trade. Nothing particularly turns on the matter in question, but it is a good example of an official trying, first, to pin the adviser down, then making sure that the "decision" was properly and professionally recorded.

"I asked Mr Fuhrman if we had advice from the minister on the submission seeking his views about proposals for sales of wheat to Iraq against a five-year letter of credit," the minute records. "Mr Fuhrman replied that Mr Fischer had decided to go along with the Foreign Minister on this one. I twice asked Mr Fuhrman if that meant the proposal was conclusively rejected by the minister, and that we could give advice to the AWQB, BHP and Posts on that basis. He agreed twice that it did." Not much room for doubt there, whatever, if anything, Tim Fischer's office recorded.

The ministerial office has been one of the big problem zones in efficient, effective, transparent and accountable public administration for two decades.

We have had a host of problems. Once DFAT thought it had warned its minister, via a staffer, that senator Graham Richardson was improperly using his position to lobby on behalf of a relative in trouble over a passports scam in the Marshall Islands. But Gareth Evans got out of trouble for his inaction, because the staffer, in his wisdom, didn't tell him. When can a department know that the minister has in fact been told?

Later, another Labor minister, Alan Griffith, was in trouble for seeming to be part-funding, from the public purse, staff working at a sandwich shop in which he had invested. An extensive inquiry got Griffith, who had anyway by then resigned, off the hook because a loyal staffer claimed to have done the wrong things of his own initiative, without the minister's knowledge. When are actions purportedly done for and on behalf of a minister actually the acts of a minister, and when can they be disclaimed by the minister?

John Howard has several times claimed ignorance of matters of which his own staffers were aware, but which they neglected, or appeared to neglect to tell him. One involved knowledge of rorting of travel allowances by ministers Howard's closest adviser, Graham Morris, loyally took the fall. In the Children Overboard affair, one of Howard's advisers now again a (since-promoted) public servant did not apparently want to trouble his boss with advice from the department casting doubt on something with which Howard was making electoral mileage. Howard flatly refused to allow his advisers to be questioned or cross-examined. Where does the buck stop?

The Cole inquiry has its own litany of horrors. No record shows what Alexander Downer and Mark Vaile actually knew or were told, even when the information had reached their office. They see, personally, only a tiny proportion of the material that flows into their office, but no records exist to say which documents they read, or, if they were proffered to them for reading, whether they were actually read or absorbed. Downer admitted his attention to reading material coming from his department, diplomatic posts or the intelligence community was fitful, and said that sometimes he read hardly anything at all. Like Vaile, anyway, he usually could not remember whether he had read anything or not. Neither the department's, nor the ministerial office's record keeping system were of any help; nor was the recollection of any of the minders charged with preparing his reading lists.

The Prime Minister has a similar system. A departmental official reads much of the material flowing in, and that person prepares a summary, but for an adviser only, of that which is thought important. "The adviser," according to Cole, "would then scan or skim the cables, or the list or summary, read some of the cables, and form a view whether any of the cables ought to be brought to the attention of the PM ... Only a very small proportion of the very large number of cables directed to the Prime Minister's office were brought to the attention of the PM in this way ... No written record of those cables that were shown to the PM was kept before about 2003.

"The PM's senior adviser [international relations] did not recollect reading any of the relevant cables or bringing them to the attention of the PM. The PM's evidence, based on his own recollection and on searches conducted by staff at his request, was that he did not read any of the relevant cables..."

One reason, of course, was the PM was playing long stop, being entitled to believe that anything of importance was being picked up by Downer, Vaile or DFAT. Ha ha.

What Cole was told about the management of top-secret intelligence within DFAT and ministerial offices would once have been regarded as a scandalous breach of security. Numerous officers had access to such intelligence and there were elaborate (and secure) means for their accessing it but there was, apparently, no record of what had been accessed, let alone (and it seems there is a difference) read. One wonders why much of the information was collected or distributed, given the purely passive way in which it was used.

Forty years ago, an inquiry by Brigadier Frank Chilton into who had had access to secret defence documents (which had passed, from Australia, into the hands of the Russians) played a major role in the establishment of ASIO. Despite modern technology and a massive security apparatus, it seems a Chilton, or a Cole, could not do a similar inquiry today. The records would be too slack.

Witness the amazing incapacity of the AFP to resolve who from the office of Downer leaked a top-secret document to a journalist. That in spite of the fact that prima facie such a leak is a more serious matter than, say, a leak of information about an Aboriginal community in the Northern Territory, currently consuming considerable resources and involving various raids.

Few observers of ministerial performance in the AWB affair would have great confidence in the competence of Downer or Vaile. The frightening thing, of course, is that so secure is the screen over the ministerial office that we have no real means of knowing how many other offices are as ill-managed and ultimately unaccountable.

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