Appendix C — The “McMullan principle”

In Appendix B reference was made to a related and important matter – the alleged convention, that has been asserted in recent years by two governments, that our parliaments, and their committees, may not compel the attendance of ministerial staff before them as witnesses.  

In March 2002, the federal Cabinet decided that present and former ministerial staff would not be allowed to appear before a Senate committee enquiring into the Children Overboard controversy. The Prime Minister justified its decision on the basis that the government was invoking the "McMullan principle". He said

"the government's approach to this matter is based upon what I regard as a fairly succinct statement of principle that reads as follows: In my view, ministerial staff are accountable to the Minister and the minister is accountable to the Parliament and ultimately, the electors. What we are doing in relation to this issue is following the convention that ministerial staff do not appear.” (1)

This was apparently a reference to views expressed by Senator McMullan, then a minister in the Keating government, when he argued that the head of the National Media Liaison Service should not be called before a parliamentary committee. (2)

Subsequently, Sen McMullan revisited the issues when in opposition in a debate about the Australian Wheat Board and its alleged breaches of trade sanctions (3).  He said –  

There is a longstanding principle which I have articulated—in fact, to my embarrassment, I saw it reported in one place as the ‘McMullan principle’—which says: ‘Staff are responsible to ministers. Ministers are responsible to the parliament.’ In the normal course, that is correct, but that means you have to accept responsibility for what your staff do. You cannot say: ‘They’re responsible to me but I do not care what they do; I am not going to tell you what they do. If they make a mistake, it is nobody’s business.’ Then there is a black hole of accountability because they deal with the departments. They give instructions; they receive directions. It was of course classically illustrated in ‘children overboard’, but it is illustrated here as well. There is a big black hole in Australian accountability, and either ministers have to accept responsibility for what their staff do or staff have to be accountable. It cannot be that nobody is accountable.

The so-called “McMullan principle” has not been accepted or invoked in all Australian States or Territories and so is not generally accepted. The convention asserted by Mr Howard was asserted in the State of Victoria in 2002.(4)   It was also relied on recently by the Victorian government in response to requests by the Standing Committee on Finance and Public Administration for the attendance of ministerial staff in its enquiry into media plans prepared by the Victorian government, in particular those relating to the Windsor Hotel redevelopment planning process. The Opposition and the Greens have challenged the claim but that claim has not yet been fully tested. The Opposition has publicly rejected the immunity claimed but its precise position on the power of the Parliament to call ministerial staff is yet to be stated.(5)

The Standing Committee, however, has issued an Interim Report (6). MLC's Guy, Hall, Kavanagh, and Rich-Philips, in their majority report rejected the claimed immunity relying on the advice of the Clerk of the Legislative Council (7) that

“There is, in effect, no distinction to be made between public servants and Ministerial staff" (8)  ,  

and that they

"have no immunity against being summoned to attend to give evidence as a matter of law"

but like public servants

"should generally not be held accountable for matters of opinion on policy, that being the domain of Ministers" . (9)

We submit that that opinion is correct, the last point focusing on accountability for policy not the obligation to give evidence.

If there ever was a convention, it is plain that in the Victorian Parliament there is no such convention because there is no longer any agreement about it. In a separate Minority report, Greg Barber MLC expressed the view that

"there is no convention conferring immunity from the Council's legal powers to compulsorily summons witnesses." (10) 

He referred to a number of statements made by the major parties and their leaders when in opposition (11) . He argued that

"the Legislative Council and its Committees clearly have the legal power (which is justiciable) to call for any ministerial staff as witnesses if it chooses". (12)

In the other Minority Report, MLCs Tee and Viney sought to defend the government's position but did so by describing  Ministerial Accountability as "a political accountability that holds Ministers [and Governments] accountable through the Parliament, including its committees". (13)  They advanced the following narrow definition

"Political accountability is the process whereby the community, through the Parliament, can hold politicians to account for making good or bad decisions"

This definition, however, ignores a number of the aspects of ministerial accountability set out above.
But whether one accepts that approach, or Mr Howard’s extension of the original proposition (that ministerial staff are accountable to the minister and the minister is accountable to the Parliament),  it  does not follow that a minister’s staff should not be available for questioning by the Parliament.  To the contrary, it is critical that Parliament be able to question their personal staff if Parliament is to be able to hold ministers to account for the administration and conduct of their portfolios and for those staff for whom they are responsible, or “for good or bad decisions”. The rise in the numbers of ministerial advisors and the important tasks they now perform, including dealing with the departments and controlling the flow of information to the Minister, make Parliament’s’ power to call and question ministerial staff even more critical. (14)  The power to do so should be acknowledged and addressed in a Ministerial Code of Conduct.

There remains the question of whether there are limits on matters upon which ministerial staff can be questioned. .The majority referred to advice given by Brett Walker SC (15) which drew a distinction between the compulsion of public servants and ministerial advisers to attend to give evidence and compulsion to answer a particular question. The advice referred to a convention that neither is asked to answer questions about policy "in such a way as to endanger the necessary confidence between Ministers and public servants".  Plainly there will be some situations where it will be necessary to limit questions that are not in the overall public interest.  (16)

Any necessary protection of the public interest and of witnesses called before Parliament can be provided by control of the questioning, particularly having regard to public interest immunity (17).  The alleged "McMullan Principle" is too blunt an instrument.  It would effectively defeat the Parliament in its responsibility to hold the executive to account because most investigations relating to Ministers’ responsibilities will have involved ministerial advisers.

The following clause in a Ministers Code of conduct could address these issues

“Ministers are to make all reasonable efforts to meet the request of a committee for information which the committee deems to be relevant to an Inquiry, including facilitating the appearance of public servants, personal ministerial staff, other employees and contractors of the Commonwealth. Personnel may be advised that they are not obliged to offer opinion on policy decisions but are required to furnish factual information within their knowledge or for which they have administrative responsibility.”

The Accountability Round Table seeks the commitment of the parties

(a) to the rejection of the so-called McMullan Principle as being inconsistent with the right and duty of the Parliament to seek information to enable it to perform its critical function of holding ministers and the Executive to account  and to do so
      (i) by implementing a Ministerial Code giving effect to that commitment and
      (ii) by incorporating equivalent provisions in the Code of Conduct for Ministerial staff
and placing both in legislation in a manner similar to the current Victorian Code of Conduct for Members of Parliament.

[1] House, Debates, 12 March 2002,p 995

[1] See Anne Tiernan, Power without Responsibility, 177 referring to views expressed by Sen McMullan that ministerial staff should not be called before parliamentary committees in circumstances where the Minister undertook to supply the information sought (Senate, Debates, seven February 1995, 611).  Senator McMullan said

“The information can be provided without calling a member of ministerial staff before the committee. In my view, ministerial staff are accountable to the minister and the minister is accountable to the parliament and, ultimately, the electors.

He undertook to supply the information. The debate proceeded, however, on the basis that minister’s staff did not ordinarily appear before Committees to supply information, that being the Minister’s primary responsibility.

[1] Hansard 28 November, 2006, p180.

[2] Select Committee on the Urban and Original Land Corporation Managing Director, 2002 and see Ian Holland, Politics and Public Administration Group, Research Paper no.19, 2001-2002 ‘Accountability of Ministerial Staff?’, text associated with his fns 3 and 93; <…/02rp19.htm>

[3]  It may at least be said that the questioning of ministerial staff would need to be relevant to the Inquiry being conducted by the Parliament, otherwise the Parliament would be acting capriciously.

[4] Legislative Counsel, Standing Committee on Finance and Public Administration, 11th report to the Legislative Council, Enquiry into Victorian Government Decision-making, Consultation and Approval Processes, Second Interim Report — August 2010.. approval processes,

[5] See also Associate Professor Greg Taylor; Arrogant Executive should be brought to heel in Windsor Case, The Age, 14.4.2010

[6] Committee Report, Para 44

[7] ibid

[8] Committee Report, p 69

[9] but it should be noted that the statements quoted focussed on there being no immunity for ministerial staff who can provide information where Ministers say they cannot

[10] Committee Report, p69

[11] Committee Report, p 66,67

[12] In its submission on “ Be Honest Minister " ( see ART website, ) the Community and Public Sector Union (PSU Group) noted that ‘For improved accountability a Minister or Cabinet as a whole should not be able to direct a staff member or public servant not to appear or not to give evidence at parliamentary inquiries. While Ministers and Cabinet have this power, ministerial staff and public servants have no real or practicable option but to act as directed by their minister’ (p 5).

[13] Committee Report, para. 46

[14] This would  be dealt with under public interest immunity on a case by case basis; We note Sessional Order 21 of the Legislative Council dealing with claims of “Executive Privilege” for documents called for by the Legislative Council and ,federally,  Government Guidelines for Official Witnesses before Parliamentary Committees and related matters- November 1989 ( particularly paras. 2.22 and 28- 2.34). As  to the experience in the Senate in respect of claims of public interest immunity, see Holland, op. cit.,, page 12 — 16, and

[15] See discussion of relevant issues in Finance and Public Administration Committee (Senate) Report, “Independent Arbitration of Public Immunity Claims, February 2010 and submissions including that by the Legislative Council of Victoria and its discussion of Sessional Oder21 of 14 March2007 setting out the procedure for the production of documents called for by the Legislative Council, including procedures for dealing with claims of public interest immunity in respect of particular documents


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