Reference has been made in Appendix A to concerns about the secrecy of government and its impact on holding governments to account. Public disquiet has also increased about the approach taken by Ministers and governments to their accountability and responsibility obligations.
This year has seen the attempt in Victoria by the Opposition and the Greens to hold the Minister for Planning, Justin Madden, and the government, to account over the handling by the Minister of the planning application for the Windsor Hotel. The trigger was the accidental disclosure of an e-mail memorandum written by the Minister’s media adviser suggesting a sham public consultation and using its likely response to justify a decision to block the developer’s proposal.
We submit that what followed has been a denial of Westminster principles of Ministerial accountability and responsibility. In particular, on the basis of the Minister’s public statements, the Minister (with support from the government) claimed, notwithstanding his responsibilities for the administration of his portfolio, his office and personal staff, and his accountability obligations,
- to be excused from any responsibility for what had occurred on the grounds of ignorance,
- to be entitled to refuse to make any enquiries of his staff (1), including the staff member in question, as to why she considered it acceptable to prepare an advice for him to embark upon a course of conduct that would involve arguably a misuse of the Minister’s statutory discretion to determine such planning matters and a deception on all the parties involved and the community.
It will be recalled that in 2006 and 2007, the responsible ministers in the Howard Government attempted to rely on ignorance to excuse their failure to act over allegations that the Australian Wheat Board had been breaching the international trade sanctions imposed on Iraq. It will also be recalled that the Howard Government purported to elevate to a binding blanket principle, “the McMullan principle” — that Parliament did not have the right to call ministerial staff before it to give evidence (this issue is discussed in Appendix C).
It may also be recalled that the former Prime Ministers, Fraser and Whitlam, published a letter during the 2007 election campaign calling for a return to Westminster principles at a Commonwealth level. The same call should be made in this election for the State of Victoria.
What are those principles?
In 1976, the Royal Commission on Australian Government Administration (the Coombs Commission) commented on the principles of Ministerial responsibility. It noted that
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 (2).
The Commission went on to state that the traditional conceptions of ministerial responsibility had been called into question in recent times and that
…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.(3)
It commented that
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 (4).
The Coombs Commission recognised the realities of the increased range and complexity of government which
…make it unreal to expect a minister of state to take an active part in the detailed administration of the affairs of his department (5).
But the Commission also referred to the role of the personal staff of ministers and their relationship with departmental staff and other issues. It stated that
“..it is essential that the minister have full control over and responsibility for all members of his staff.”(6)
Given that the doctrine of ministerial responsibility is a matter of convention not law, it is important to have an agreed authoritative, comprehensive and clear statement of its content, obligations and consequences. It is time that such a statement was provided in Victoria.
In April 2008 the Public Accounts and Estimates Committee of the Victorian Parliament recommended that
“The Premier of Victoria implement a ministerial code of conduct in line with the Commonwealth and other States”(7) .
On 16 October 2010, the Government published a Discussion Paper containing a draft Bill to establish the office of Parliamentary Integrity Commissioner together with a draft of a proposed Ministerial Code of Conduct. The draft Code draws heavily on Chapter 5 of the current federal Ministerial Code of Conduct.
At the federal level, there has been since 1996 a “Guide to Key Elements of Ministerial Responsibility”. It was revised in 1998 and in 2007. It addresses a number of areas of ministerial responsibilities, including Cabinet responsibilities and is the principal statement in Australia. In 2007, it was amended to acknowledge the public trust that is vested in Ministers and their obligation to act with integrity, honesty and fairness and at all times in the public interest. It also refers to the obligation of ministers to answer to the Parliament and the people for all matters within their portfolio. It does not, however, attempt to articulate all the accountability obligations or address the question of the circumstances in which a Minister is to be held personally culpable.
The proposed Victorian draft also does not address these matters adequately.(8)
It does not include the following provision of the Federal Code;
“4.4 Ministers are required to provide an honest and comprehensive account of their exercise of public office, and of the activities of the agencies within their portfolios, in response to any reasonable and bona fide enquiry by a member of the Parliament or a Parliamentary Committee.”(9)
It should go on to say,
“4.5 Without limiting 4.4, Ministers may discharge their responsibility to be accountable at one or more of the following levels depending on the circumstances and details of each case (10):
• redirecting the question to the relevant minister;
• providing all relevant information;
• providing full explanations;
• taking any necessary remedial action”
In the recent Victorian incident, questions arise as to whether the Planning Minister failed the second and third and fourth requirements (the first not being applicable). The existence of a Ministerial Code of conduct spelling out those obligations would have guided the Minister in the discharge of his responsibilities. The absence of such provisions means that there is no guidance to offset the political expedient of avoiding accepting responsibility and no agreed standard against which the Minister’s conduct may be assessed.
We submit that the above statement of accountability obligations is not controversial. It should be publicly stated in any Ministerial Code for Victoria and committed to by all parties (11).
Such a Code should also address two other matters – the circumstances in which a minister should accept personal culpability and the issue of resignation. We submit that a Minister’s Code of Conduct should state the following;
1. Ministers should be expected to accept personal culpability for their own acts and omissions and for those of:
- their heads of department and their personal staff, (12) and for
- other instances in which they have participated or of which they were aware or should have been aware and should have acted;
2. In determining whether a minister is personally culpable, ignorance of a matter should not excuse the acts or omissions of the minister where the minister should have known or should have ensured the matter was drawn to the minister’s personal attention. Without limiting the circumstances in which ministers should have known of any matter, they should be deemed to have the knowledge of their heads of department and others who report directly to them and all members of their personal staff,(13)
3. Resignation will be appropriate where a minister has lost the confidence of the House of Parliament or the Prime Minister in the minister’s capacity to satisfactorily discharge the responsibilities of the office. In the rare event that a minister declines to act on advice to resign, the Prime Minister may recommend to the Governor-General that the minister’s commission be withdrawn, after which the minister ceases to hold office.(14)
Finally, there is the issue of who should have responsibility for and control of such Codes. At the federal level, that lies with the Prime Minister and, therefore, the Executive, and not with the Parliament. But it is the Parliament that has the responsibility to hold the Executive to account and , prima facie, it should have the responsibility for, and control of, any code of conduct for Ministers. The Victorian Discussion Paper proposes a compromise – that the Ministerial Code be prescribed in regulations. If implemented, this would mean that the Code would have to lie before Parliament, and either House could disallow it. But that is all they can do if concerned about its content. In particular, the Parliament cannot initiate new or amended regulations.
No explanation is advanced as to why that choice is made or why the alternative of legislation should not be used, as is the case with the present Victorian Code for Members of Parliament. A possible explanation is that regulation is preferred because Ministers wish to maintain substantial control of the content and process, leaving the members of the Houses of Parliament in the position that if they do not approve of any Code provisions contained in the Regulations, they will be reluctant to act because disallowing the regulations will mean there will be no Code.
The Accountability Round Table calls on all parties to commit to
1. the production of a Ministerial Code based on the Prime Minister’s Code which will include the above statements, and
2. the inclusion of the revised Code in legislation in a manner similar to the current Code of Conduct for Members of Parliament.
[1] The Age, 1 October 2010 p 8
[2] Paragraph 4.2.1, page 59.
[1] Ibid.
[3] Paragraph 4.2.1, page 60.
[4] Paragraph 4.2.2, page 60.
[5] Recommendation 28
[6] There are other provisions in the proposed Code that need further consideration such as the provisions dealing with post- ministerial employment, gifts and lobbying. The Accountability Round Table intends to make submissions on those matters in the course of the proposed consultation process.
[7] It does include cl 5.1 from that Code which states
5.1Ministers are expected to be honest in the conduct of public office and take all reasonable steps to ensure that they do not mislead the public or the Parliament. It is a Minister’s personal responsibility to ensure that any error or misconception in relation to such a matter is corrected or clarified, as soon as practicable and in a manner appropriate to the issues and interests involved.”
This may be a reasonable statement of overarching principle, but it requires the support of further detailed provisions applying the principles, otherwise it leaves too much uncertainty and scope for arguable interpretation and resulting non-compliance.
[8] see Woodhouse, Diana (1994). MINISTERS AND PARLIAMENT. Accountability in Theory and Practice. Oxford: Clarendon: pp.28-38.
[9] In Victoria, there has, since September 2009, been a Ministerial Staff Code of Conduct.
[10] John Quiggin, (2006) Australian Financial Review, 2 March. Note also PSU Group Submission, where the point was made that public servants dealing with ministerial staff need to be confident that the actions of ministerial staff are fully authorised (p 2).
[11] ibid.
[12] The Commonwealth Code as revised in 2007 contained other relevant provisions in clauses 6.1 to 6.4. The proposed draft Code for Victoria contains other relevant clauses; 1-5-1-8.