|*From Research Paper ‘Accountability of Ministerial Staff’|
published by the Parliamentary Library June 2002
by Dr Ian Holland.
Americans are fond of saying that democracy is not about electing George III. This goes back to their colonial origins but it also indicates a deep-seated concern about ‘winner takes all’ politics and the corrupting and debilitating impact of unchecked power.
At the centre of the American system is the notion of ‘checks and balances’. The executive branch of government is quite separate from the Congress. The Congress has two chambers: the executive and the Congress are constrained by a written Constitution; and oversighting all of this is the Supreme Court. All appointments by the President to senior positions in the government including appointments to the Supreme Court and senior appointments to the public service have to be approved by the US Senate. Importantly the checks and balances are hard-wired into the system and are beyond the control of any individual or group.
Over the last two centuries, Americans have successfully melded together a population that has come from all over the globe and established the most successful and powerful political and economic culture that this planet has ever seen. We too have melded together a diverse population but our system has now delivered unparalleled power to the Australian Prime Minister and his office that would be totally unacceptable if transposed to the US.
The changes to our system have been underway for thirty years but under the present Prime Minister they have accelerated. We should pause before we shrug our shoulders and calmly accept that the stripping away of the checks and balances that operate in our system is not a problem. The fact that this Prime Minister will now control the Senate should set alarm bells ringing everywhere.
Our problem is that we have very few hard-wired checks and balances in our system. The Prime Minister controls the House of Representatives. He controls all government appointments. The Prime Minister determines how the public service should conduct itself and what standards of accountability it should operate under. He does the same for his ministers and their offices. Conventions are not set in stone in Australia but are at the discretion of the Prime Minister. Even something as basic as the caretaker conventions are determined by the Prime Minister.
The penny dropped for me early in my time as Keating’s Chief of Staff when someone from the Department rang and asked how large a budget the Prime Minister wanted in the coming budget round. I innocently asked if we needed to negotiate this with the Department of Finance. I was told that this was not necessary. ‘What the PM wants, the PM gets.’ I said that we would stick with the Hawke allocation and not to mention to others in the office that we had a budget that was ours to determine. In our system the Prime Minister sets the standards; he sets the rules.
Apart from national elections, the only hard-wired checks and balances in our system are the States, the High Court and the Constitution and, in normal times, the Senate.
However, the States have lost the power to raise excise revenue and some eighty two per cent of total Australia-wide tax revenue is collected by Canberra; the Commonwealth has the growth taxes and this ratio is on the rise. The States receive the GST, which is a growing source of revenue, but the Commonwealth determines total payments to the States through its control of other payments. We can look forward to higher GST revenue being clawed back elsewhere.
The Australian PM now has unparalleled control over total public sector revenue and spending. The States may have constitutional power in many areas but the Commonwealth has the money power; as each year goes by, the demand on State services increases and with it the power of the Commonwealth.
The High Court can disallow legislation that infringes the Constitution. However, the Prime Minister appoints High Court judges and the tradition of respecting the role of the Court and its decisions is weak; this government has further eroded the standing of the Court. In terms of day-to-day control, the only practical curb on the power of the modern PM is the Senate.
In days gone by, the public service operated as a discipline on the government. This was so when I first joined the Commonwealth Treasury. But even then, the public service only had standing because Curtin, Chifley and Menzies preferred to operate surrounded by clever officials, answerable and loyal to them. During the time of Whitlam and Fraser, the public service overreached itself, took upon itself the right to dictate to Prime Ministers and as a result saw its role dramatically diminished. Ministerial staff took up the slack. The Hawke/Keating government continued to strengthen the role of ministerial advisers but it was done in the context of maintaining the standing and role of the public service as a legitimate counter balance.
Ministerial staff have grown but the Prime Minister’s office has grown more. Staff trusted by the PM, and loyal to his agenda, have taken over much of the role that was previously the preserve of senior bureaucrats and ministers. Every Prime Minister since Whitlam, who introduced ministerial staff, has operated with a larger private office than their predecessor as the following chart makes clear.*
Under the current Prime Minister, not only has the role of staff continued to evolve but there has been a dramatic reduction in their public accountability and oversight. As a result of the ‘children overboard’ incident and its aftermath, we have entrenched principles that mean that ministers no longer have to accept responsibility for the actions of their staff. However under Prime Ministerial decree, staff continue to be beyond the reach of the Senate. Under present arrangements, ministerial staff can do things that ministers would find hard to justify. If ministers can disown the behaviour of their staff, then a large part of ministerial influence and behaviour becomes potentially beyond the scrutiny of the Parliament. Abuses will inevitably occur as ministers explore the limits of the additional power that comes from having staff who can be their surrogate but whose behaviour can be shielded from the Parliament.
We have created a cadre of officials, funded by the taxpayer, who have much of the power and influence of a minister or Prime Minister but whose behaviour is beyond the scrutiny of the public and the Parliament. This is an extremely dangerous development.
At the same time as the public service was losing its place and ministerial staff were extending their influence, we also saw the development of the committee system in the Senate. The Senate committees owe their origin to Lionel Murphy and their growing influence has proved to be an important check on the power of the Prime Minister. The growth of the Senate committees can be directly linked to the fact that governments rarely have a majority in the Senate; it would be a rare Prime Minister who willingly subjected himself to the dictates of a Senate committee.
Senate committees have forced governments to defend the detail of legislation and to take account of different views if they want their bills to become law. In the glory days of the public service when ministers had to take account of expert advice and all the scrutiny that goes with informed ‘due process’, it was reasonable to assume that policy had been properly assessed. In such an environment it was legitimate to see the Senate committees and their review powers as an unwarranted burden. But those days are long gone. With the decline of the public service, the Senate now performs a key role in the review and implementation of policy.
Importantly, the existence of the Senate committees exerts a powerful discipline on public servants to follow defensible procedures and not cut corners. The power of the Senate to demand the disclosure of documents has also been a powerful discipline. The Senate therefore performs a critical role in maintaining the standards and transparency of government.
If governments can get away with limited scrutiny of their actions and can avoid responsibility for their failures, they will invariably cover up mistakes and delay or avoid fixing problems. Given half a chance, the political hard heads will entrench deception and prevarication as the first line of defence in any situation. The greatest concern however is that limited scrutiny allows governments to control and distort the flow of information to the public. People cannot make a sensible choice when they vote if they do not know what is going on.
And it is the potential for the Prime Minister to stop people from knowing that is the truly worrying aspect of the current situation. Because he controls the Senate, the Prime Minister now has the opportunity to mute the Senate’s committee system. If all that happens is that some controversial legislation is passed that is one thing; the nation will still be able to pass judgement in three years time in the normal way. But if the committees of the Senate are muzzled then something altogether more sinister and destructive could be about to happen. If ‘partisan learning’ leads any new government to adopt the standards of their predecessors, then we could be wandering in the darkness for a long time.
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